Governor Maggie Hassan issued the following statement after allowing SB 138 to become law without her signature:
"On July 1, 2013 I chose to allow Senate Bill 138, relative to support for certain residents of nursing and assisted living facilities, to become law without my signature. I did not sign SB 138 because I have concerns with the bill as drafted.
"Long-term care providers serving New Hampshire's elderly population play a critical role in New Hampshire's health care system. Our providers take care of nursing facility residents who do not have the resources to pay for their care. Providers, taxpayers and our health care system are harmed when long-term care residents fail to apply for Medicaid or fraudulently qualify for Medicaid by transferring property.
"Many legislators, advocates and nursing facilities have worked diligently in a bipartisan effort to reach a resolution that would protect nursing home residents and nursing homes. This bill attempts to address this challenge by giving nursing facilities new private causes of action to recover costs of care.
"While I support the fundamental policies of this bill, I believe improvements need to be made to address technical issues and ensure due process to those charged with liability.
"SB 138 gives assisted living and nursing facilities added legal rights to seek payment for the costs of care. It provides assisted living and nursing facilities a private cause of action against persons to whom property was fraudulently transferred. That means if someone sells or gives away any asset at less than fair market value within 5 years of applying for Medicaid, the facility caring for the individual can seek payment from the person who received the asset. The costs of care are appropriately assessed at Medicaid rates.
"The bill's policy is sound, but technical improvements are necessary to ensure no one is inappropriately charged with costs of care. Specifically, proposed Section RSA 151-E:19, II should include clearer definitions, clarify what happens if the state or another payer source has covered costs of care, and explain precisely the period of time and method of calculating the amount of the potential liability. I also have concerns that this measure could make fiduciaries personally responsible for costs incurred before they are informed of their responsibilities to apply for Medicaid.
"The New Hampshire Health Care Association (NHHCA), the National Academy of Elder Law Attorneys, Inc., and other advocates have expressed their commitment to addressing the concerns I have raised about the law as written, with John Poirier, President and CEO of NHHCA, stating 'When developing important policies effecting people in the most vulnerable stage of their lives, our work is never done, and we will help improve the process as we move forward.'
"This bill represents important policy changes and seeks to provide nursing facilities with new rights to seek payment for costs of care, which should in turn serve to deter Medicaid fraud. I am allowing the bill to become law without my signature because I support these efforts, but I believe we must improve the law next year in order to provide better clarity around the rights and responsibilities of all parties and thus protect our caregivers and our fiduciaries. We must always be looking to root out Medicaid fraud in order to protect both taxpayers and providers, and I look forward to working with the legislature and all stakeholders to improve this law next year."