HB 606-FN – AS INTRODUCED
2009 SESSION
05/04
HOUSE BILL 606-FN
AN ACT relative to aid to the disabled.
SPONSORS: Rep. Donovan, Sull 4; Rep. Emerton, Hills 7; Rep. Butcher, Ches 3; Rep. Gagnon, Sull 4
COMMITTEE: Health, Human Services and Elderly Affairs
This bill establishes eligibility criteria for the aid to the disabled program.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
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05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to aid to the disabled.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Public Assistance to Blind, Aged, or Disabled Persons, and to Dependent Children. Amend RSA 167:6, VI to read as follows:
VI. For the purposes hereof, a person shall be eligible for aid to the [permanently and totally] disabled who is between the ages of 18 and 64 years of age inclusive; is a resident of the state; and is disabled as defined in the federal Social Security Act, Titles II and XVI and the regulations adopted under such act[, except that the minimum required duration of the impairment shall be 48 months]. In determining disability, the standards for “substantial gainful activity” as used in the Social Security Act shall apply, including all work incentive provisions including Impairment Related Work Expenses, Plans to Achieve Self Support, and subsidies. No person shall be eligible to receive such aid while receiving old age assistance, aid to the needy blind, or aid to families with dependent children.
2 Rulemaking. Amend RSA 167:3-c, IX to read as follows:
IX. The aid to the disabled program under RSA 167:6, VI and RSA 167:3-j, including the amount of earned income to be disregarded for purposes of calculating eligibility [for aid to the permanently and totally disabled], which shall be consistent with the regulations of the federal Supplemental Security Income Program or its successor program.
3 New Section; Aid to the Disabled. Amend RSA 167 by inserting after section 3-i the following new section:
167:3-j Aid to the Disabled.
I. In addition to the requirements of RSA 167:6, VI, the following criteria shall apply to the aid to the disabled program:
(a) A determination of disability by the Social Security Administration for purposes of Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) pursuant to Title II or Title XVI of the Social Security Act, or a determination of disability by the Social Security Administration or any other federal agency, including the Railroad Retirement Board, using the SSI/SSDI criteria, shall constitute a determination of disability for purposes of aid to the disabled.
(b) An applicant for aid to the disabled whose income and resources are within SSI standards shall be found by the Social Security Administration to meet the definition of disability contained in Title XVI of the Social Security Act, as amended (42 U.S.C. 1382c (a)(3)) in order to be eligible for aid to the disabled, unless his or her eligibility has been determined in accordance with subparagraphs (d) or (e).
(c) The department shall determine disability for any applicant for aid to the disabled, or any other medical assistance category for which eligibility is predicated on a determination of disability, if the applicant meets the non-medical criteria established by the department but does not meet the non-medical criteria for SSI or SSDI, or any other federal program using the SSI/SSDI criteria.
(d) All persons determined by the department to be disabled prior to January 1, 2010, who have applications or appeals pending with the Social Security Administration as of that date, shall be eligible pending the final administrative determination of any timely filed appeals, through the level of the Social Security Appeals Council, provided they meet all other eligibility criteria.
(e) The department shall, directly or through an agreement with the Social Security Administration or any other agency making disability determinations on its behalf, assure that a determination of disability for purposes of medical assistance is made if a pending application for SSI or SSDI cannot be determined in time for the department to make a determination on an individual’s application for medical assistance within the time frame allowed by federal law. Eligibility for medical assistance once determined shall continue through the final administrative determination of a timely appeal of an adverse decision by the Social Security Administration.
(f) In the event the department provides cash assistance to an applicant pending a final determination of the Social Security Administration on an application for SSI, the applicant shall, as a condition of receiving cash assistance, agree that the Commissioner of Social Security may, to the extent permitted by federal law, withhold benefits due with respect to that individual and repay the department for cash assistance provided out of any SSI payment due to the applicant in accordance with section 1631(g) of the Social Security Act.
(g) All individuals receiving medical assistance or cash payments pending the determination of an application for SSI, SSDI, or other benefits to which he or she may be entitled, shall, as a condition of eligibility, accept any disability benefits assistance provided by the department pursuant to paragraph II, unless he or she is receiving assistance from an attorney or benefit specialist.
II. The department shall, directly or through contracts or agreements with other agencies, provide assistance to any applicant or recipient of aid to the disabled to obtain SSI, SSDI, or other public benefits to which he or she may be entitled. Assistance shall include:
(a) Completing the application, obtaining supporting documentation, monitoring case progress and ensuring that all required information is sent to the Social Security Administration; and
(b) Assisting with appeals and serving as a representative for individuals who are denied SSI or SSDI.
III.(a) The commissioner may enter into agreements in which an agency of the federal government or other public or private entity administers any or all parts of the aid to the disabled program, to the extent such agreements would allow for more cost effective or efficient administration of the program.
(b) The commissioner shall monitor the performance of any outside agency with whom the state has contracted to administer the aid to the disabled program. In the event the commissioner determines that administration by the agency is not cost-effective or in the best interest of the citizens of New Hampshire he or she is hereby authorized to terminate such agreements.
4 Effective Date. This act shall take effect January 1, 2010.
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HB 606-FN - FISCAL NOTE
AN ACT relative to aid to the disabled.
FISCAL IMPACT:
The Department of Health and Human Services states this bill would have an indeterminable fiscal impact on state, county, and local expenditures in FY 2010 and each year thereafter. This bill would have no fiscal impact on state, county, and local revenue.
METHODOLOGY:
The Department of Health and Human Services (DHHS) states this bill would make the following changes to the Aid to the Permanently and Totally Disabled (APTD) program -
• changes the name of the program from Aid to the Permanently and Totally Disabled
• (APTD) to Aid to the Disabled (AD);
• changes the minimum duration of disability from 48 months to the duration defined in the federal Social Security Act, Titles II and XVI (currently 12 months or expected to result in death);
• requires DHHS to automatically grant medical eligibility to AD applicants whose disability has been approved by the Social Security Administration (SSA);
• specifies that when an applicant for AD has income and resources within Supplemental Security Income (SSI) standards, cannot be found to be eligible for AD until after SSA has made the medical eligibility determination unless the individual applied for AD prior to January 1, 2010 or unless SSA fails to make a timely determination of eligibility;
• requires DHHS to determine medical eligibility for any applicant for any disability-based medical assistance category I if the applicant meets the non-medical criteria established by DHHS but does not meet the non-medical criteria for any federal program that uses the SSI/SSDI (Social Security Disability Insurance) medical criteria;
• allows all persons determined by DHHS to be disabled prior to 1/1/2010 who have applications or appeals pending with SSA as of that date, to continue to be eligible for AD through the final administrative determination of any timely filed SSA appeals, provided they continue to meet all other AD eligibility criteria;
• requires DHHS to assure that it will make disability determinations for purposes of medical assistance if SSA has not made the eligibility determination for SSI or SSDI
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within the 90-day timeframe mandated by the federal government and that eligibility for medical assistance once determined by DHHS will continue through the final administrative determination of a timely appeal of an adverse decision by SSA. If SSI/SSDI medical eligibility is ultimately denied, AD assistance will be terminated at that time;
• mandates that when cash assistance provided to an individual pending a final determination of the SSA on an application for SSI, the individual must as a condition of eligibility for cash assistance agree that SSA may withhold benefits due to that individual and repay DHHS for cash assistance provided out of any SSI payment due to the applicant;
• requires individuals receiving cash or medical assistance pending the determination of an application for any benefit to which he or she may be entitled must, as a condition of eligibility, accept any assistance to obtain disability benefits provided by DHHS unless such individual is receiving assistance from an attorney or benefit specialist;
• requires DHHS to either directly or through contracts or agreements with other agencies, provide assistance to any applicant or recipient of AD to obtain any public benefits to which he or she maybe be entitled, including: completing the application, obtaining supporting documentation, monitoring case progress and ensuring that all required information is sent to the SSA, and assisting with appeals and serving as a representative for individuals who are denied SSI or SSDI;
• allows DHHS to enter into agreements in which an agency of the federal government or other public or private entity administers any or all parts of the AD program to the extent that such agreements would allow for more cost effective or efficient administration of the program; and
• requires DHHS to monitor the performance of any outside agency with whom the state has contracted to administer the AD program. If DHHS determines that administration by the agency is not cost-effective or in the best interest of the citizens of New Hampshire, the commissioner is authorized to terminate such agreements.
The Department states a similar bill in the 2008 Legislative Session (HB 1549) which would have changed the disability duration for APTD from 48 months to 12 months, was sent to interim study and as a result, DHHS contracted with the University of Massachusetts Medical School/Commonwealth Medicine (UMMS/CWM) to conduct a review and analysis of the potential impacts of HB 1549. The report, issued on January 6, 2009, stated in its summary
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and conclusions section that while HB 1549 would have likely lead to an increase in general fund expenses, it also appears those expenses in many cases would offset existing municipal social services costs, uncompensated care costs borne by hospitals and health centers, and provide vulnerable New Hampshire residents with improved access to health services with resulting improved health status. The report further stated that benefit costs for APTD-AP (Assistance Payments) and APTD-MA (Medical Assistance) would increase with an increase in qualifying applicants due to the reduced disability duration requirement, with some reduction in the increase due to reduced cash payments to APTD cash recipients who qualify for SSI/SSDI. The report stated that even after a one-time “surge” of SSI recipients and in-process APTD applicants who could not meet the 48 month standard, but do meet the 12 month standard, and increase flow of applicants would be expected. The bill would have also increased expenses for the Disability Determination Unit (DDU) related to processing more applicants, as well as the Medicaid Legal Services Unit (MLSU) and the Administrative Appeals Unit (AAU) as the total number of applicants and appeals increased. The report also stated that there were a number of issues that undermine accurate projection of costs, and a number of potential impacts that are un-measurable due to limitations in data and data systems. The Department states the report did not provide them with specific costs and savings.
The Department states changing to the 12-month duration will cause a surge in new applicants going to the district offices. Recent analysis of the district offices has shown that district offices are already experiencing a substantial increase in traffic due to current economic factors. This increase in traffic has already strained the ability of the current staff and equipment resources to process new applications. District offices will be hard pressed to handle the additional surge in new applicants without additional resources. The combined changes to the APTD program will require substantial policy related changes, rulemaking and significant and costly eligibility-related systems changes.
The New Hampshire Social Security Disability Unit is currently taking an average of 105.3 days to complete the disability decision; however, there are many cases that go beyond this average due to the fact the Social Security “fast tracks" many cases (the terminally ill), which ultimately reduces the average. The Social Security Administration's current target to make initial decisions is 120 days for all cases. States are mandated by federal regulation to make eligibility determinations for disability-related cases within 90 days from the date of
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application. This means that DHHS will still be required to make disability determinations on a significant but indeterminable number of applications.
The bill specifies that an applicant for AD whose income and resources are within SSI standards must first be found medically eligible for SSI/SSDI in order to be eligible for AD unless the AD application is filed prior to January 1, 2010 or SSA fails to make a timely determination of eligibility. It is assumed that DHHS must not make an AD eligibility determination until SSA has made a medical determination if the individual's income and resources are within SSI standards. DHHS does not currently use SSI income and resource methodology to determine eligibility. This requirement would mean that DHHS would need to make two separate financial eligibility determinations: one before the medical determination is made, and one after the medical determination is made. This represents an additional increase in workload for already over-burdened staff. The Department states the increase in disability determinations due to the number of new applicants and the fact that SSA will not make timely eligibility determinations will also result in an increase in the number of denials, which will, in turn, result in an increase in the number of requests for appeals. Because of the increased need for appeals resources, associated resources will be needed for the MLSU and the AAU.
Uncompensated care payments to providers, paid from state general funds, will be lower but it is not known how much lower they will be since data that identify persons who could have possibly qualified for APTD Medicaid under the 12-month provision, do not currently exist. The Department states requiring individuals who have been granted AD assistance while their SSI/SSDI application is pending to repay such assistance from their retroactive SSI/SSDI benefits will not result in significant savings to the state general fund because cities and town that have provided interim assistance to such individuals generally have priority in being reimbursed and there are little or no extra funds left in which to reimburse the state. In addition, the state will need to amend the existing contract it has with SSA regarding interim assistance in order to implement this requirement. It is anticipated that the revision to the contract will possibly take a significant amount of time to accomplish.
The Department states requiring DHHS to either directly or through contracts or agreements with other agencies, provide assistance to any applicant or recipient of AD to obtain any public benefits to which he or she maybe be entitled would potentially result in some savings to the state general fund because some individuals would have their eligibility for federal benefits
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determined more quickly. However, there could also be significant costs to the state general fund as a result of the additional resources that would be necessary. The Department does not currently have staff that could provide such federal application assistance. It is assumed that additional DHHS or contracted legal staff would also be necessary in order to adequately represent individuals through the appeals process. It is recognized that these changes would have some aspects that result in savings to the state general fund and some aspects that result in costs to the state general fund. Although DHHS has not had the time to determine the exact costs and savings, it is anticipated that there would be a net cost to the state general fund because of the increase in the number of financial and medical assistance recipients.
The UMMS/CWM report indicated that reducing the disability duration for APTD is likely to affect cities and towns by changing the amount of assistance provided to individuals who are eligible for APTD because of the reduction in the disability duration. The report recognized that there are currently no administrative databases with the information that would be necessary in order to estimate an accurate estimate on cities and towns, and recommended that DHHS conduct a study by interviewing new APTD eligibles to gather service category (health care, utilities, rent, pharmacy, clothing, food, etc.), and assistance amount data for the period immediately preceding the survey. The Department states time and resources have not allowed for this level of analysis.