New Hampshire Law Gives Nursing Homes the Right to Sue Fiduciaries and Recipients of Gifts from Facility Residents

The New Hampshire legislature has enacted a new law that allows nursing homes to sue anyone who received an asset transfer from a nursing home resident, and also makes the resident’s fiduciaries liable for the cost of care under certain circumstances. This new legislation became law on July 2, 2013. The law, enacted under Title 11 of the New Hampshire statures, §151-E:19, is entitled “Support for Certain Residents of Nursing Homes and Assisted Living Facilities.”

Under the new law, if a nursing home resident transfers assets and that transfer leads to a Medicaid disqualification, the nursing home can sue the person who received the transfer for the nursing home resident’s cost of care, up to the amount transferred. The transferee will be liable at the Medicaid-pay rate, not the private-pay rate. The person sued under this provision can challenge whether the transfer should have been disqualifying, and a Court rather than the Medicaid agency shall decide whether the transfer was disqualifying under the Medicaid rules.

In addition, a nursing home may sue anyone who has control of the resident’s assets and has the authority to file a Medicaid application on behalf of the resident and is negligent in “failing to promptly and fully complete and pursue an application for Medicaid benefits for the resident.” This provision applies to the resident’s fiduciaries, which could be someone acting under a durable power of attorney, an attorney-in-fact, a legal guardian, trustee, or representative payee. The fiduciary would be responsible for the resident’s cost of care for the period the resident was not covered by Medicaid, at the facility’s Medicaid rate. A resident’s fiduciary may also be liable if he or she refuses to pay the resident’s monthly income to the facility as required by the Medicaid agency.

The death of a facility resident does not nullify or otherwise affect the liability of the person or persons charged with the cost of care rendered by the nursing facility under New Hampshire’s new law.

To read the new statute, click here: Support for Certain Residents of Nursing Homes and Assisted Living Facilities

(Courtesy of ElderLawAnswers Weekly)