2015 -- H 5712

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LC001353

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS

     Introduced By: Representatives Serpa, Shekarchi, and Lima

     Date Introduced: February 26, 2015

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 23-17.5-17 of the General Laws in Chapter 23-17.5 entitled "Rights

of Nursing Home Patients" is hereby amended to read as follows:

     23-17.5-17. Transfer to another facility. -- (a) Before transferring a patient to another

facility or level of care within a facility, the patient shall be informed of the need for the transfer

and of any alternatives to the transfer.

      (b) A patient shall be transferred or discharged only for medical reasons, or for the

patient's welfare or that of other patients or for nonpayment of the patient's stay. A facility

seeking to discharge a patient for nonpayment of the patient's stay must, if the patient has been a

patient of the facility for thirty (30) days or longer, provide the patient and, if known, a family

member or legal representative of the patient, with written notice of the proposed discharge thirty

(30) days in advance of the discharge.

     (c) The patient may file an appeal of the proposed discharge with the long-term care

ombudsperson of the department of elderly affairs, and if the appeal is received by the

ombudsperson within ten (10) days after the date of written notice, the patient may remain in the

facility until the decision of the ombudsperson. For appeals where the patient remains in the

facility:

     (1) Any hearing on the appeal shall be scheduled no later than thirty (30) days after the

receipt by the state agency of the request for appeal;

     (2) No more than one request for continuance by the patient shall be permitted and, if

granted, the hearing on the appeal must be rescheduled for a date and time no later than forty (40)

days after the receipt by the state agency of the request for appeal; and

     (3) The decision of the ombudsperson shall be rendered as soon as possible, but in any

event within five (5) days after the date of the hearing.

      (c)(d) Reasonable advance notice of transfers to health care facilities other than hospitals

shall be given to ensure orderly transfer or discharge and those actions shall be documented in the

medical record.

      (d)(e) In the event that a facility seeks a variance from the required thirty (30) day notice

of closure of the facility, reasonable advance notice of the hearing for the variance shall be given

by the facility to the patient, his or her guardian, or relative so appointed or elected to be his or

her decision-maker, and an opportunity to be present at the hearing shall be granted to the

designated person.

      (e)(f) In the event of the voluntary closure of a facility, which closure is the result of a

variance from the required thirty (30) day notice of closure, granted by the director of the

department of health, reasonable advance notice of the closure shall be given by the facility to the

patient, his or her guardian, or relative so appointed or elected to be his or her decision-maker.

     (g) Nothing herein shall be construed to relieve a patient from any obligation to pay for

the patient's stay in a facility.

     SECTION 2. Chapter 40-8 of the General Laws entitled "Medical Assistance" is hereby

amended by adding thereto the following sections:

     40-8-6.1. Nursing facility care during pendency of application. – (a) Definitions. For

purposes of this section, the following terms shall have the meanings indicated:

     (1) "Applied income" means the amount of income a Medicaid beneficiary is required to

contribute to the cost of his or her care.

     (2) "Authorized representative" means an individual who signs an application for

Medicaid benefits on behalf of the Medicaid applicant.

     (3) "Complete application" means an application for Medicaid benefits filed by or on

behalf of an individual receiving care and services from a nursing facility, including attachments

and supplemental information as necessary, which provides sufficient information for the director

or designee to determine the applicant's eligibility for coverage. An application shall not be

disqualified from status as a complete application hereunder except for failure on the part of the

Medicaid applicant, his or her authorized representative, or the nursing facility to provide

necessary information or documentation, or to take any other action necessary to make the

application a complete application.

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     (4) "Medicaid applicant" means an individual who is receiving care in a nursing facility

during the pendency of an application for Medicaid benefits.

     (5) "Nursing facility" means a nursing facility licensed under chapter 17 of title 23, which

is a participating provider in the Rhode Island Medicaid program.

     (6) "Uncompensated care" means care and services provided by a nursing facility to a

Medicaid applicant without receiving compensation therefor from Medicaid, Medicare, the

Medicaid applicant, or other source. The acceptance of any payment representing actual or

estimated applied income shall not disqualify the care and services provided from qualifying as

uncompensated care.

     (b) Uncompensated care during pendency of an application or benefits. A nursing facility

may not discharge a Medicaid applicant for non-payment of the facility's bill during the pendency

of a complete application; nor may a nursing facility charge a Medicaid applicant for care

provided during the pendency of a complete application, except for an amount representing the

estimated applied income. A nursing facility may discharge a Medicaid applicant for non-

payment of the facility's bill during the pendency of an application for Medicaid coverage that is

not a complete application, but only if the nursing facility has provided the patient (and his or her

authorized representative, if known) with thirty (30) days' written notice of its intention to do so,

and the application remains incomplete during that thirty (30) day period.

     (c) Notice of application status. When a nursing facility if providing uncompensated care

to a Medicaid applicant, then the nursing facility may inform the director or designee of its status,

and the director or designee shall thereafter inform the nursing facility of any decision on the

application at the time the decision is rendered and, if coverage is approved, of the date that

coverage will begin. In addition, a nursing facility providing uncompensated care to a Medicaid

applicant may inquire of the director or designee as to the status of that individual's application,

and the director or designee shall respond within five (5) business days as follows:

     (1) Without release – If the nursing facility has not obtained a signed release authorizing

disclosure of information to the facility, the director or designee must provide the following

information only, in writing:

     (i) Whether or not the application has been approved;

     (ii) The identity of any authorized representative; and

     (iii) If the application has not yet been decided, whether or not the application is a

complete application.

     (2) With release – If the nursing facility has obtained a signed release, the director or

designee must additionally provide any further information requested by the nursing facility, to

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the extent that the release permits its disclosure.

     40-8-20.2. Support for certain patients of nursing facilities. – (a) Definitions. For

purposes of this section:

     (1) "Applied income" means the amount of income a Medicaid beneficiary is required to

contribute to the cost of his or her care.

     (2) "Authorized individual" means a person who has authority over the income of a

patient of a nursing facility such as a person who has been given or has otherwise obtained

authority over a patient's bank account, has been named as or has rights as a joint account holder,

or is a fiduciary as defined in this section:

     (3) "Costs of care" means the costs of providing care to a patient of a nursing facility,

including nursing care, personal care, meals, transportation and any other costs, charges, and

expenses incurred by a nursing facility in providing care to a patient. Costs of care shall not

exceed the customary rate the nursing facility charges to a patient who pays for his or her care

directly rather than through a governmental or other third-party payor.

     (4) "Fiduciary" means a person to whom power or property has been formally entrusted

for the benefit of another such as an attorney-in-fact, legal guardian, trustee, or representative

payee.

     (5) "Nursing facility" means a nursing facility licensed under chapter 17 of title 23, which

is a participating provider in the Rhode Island Medicaid program.

     (6) "Penalty period" means the period of Medicaid ineligibility imposed pursuant to 42

U.S.C. 1396p(c), as amended from time to time, on a person whose assets have been transferred

for less than fair market value.

     (7) "Uncompensated care" means care and services provided by a nursing facility to a

Medicaid applicant without receiving compensation therefor from Medicaid, Medicare, the

Medicaid applicant, or other source. The acceptance of any payment representing actual or

estimated applied income shall not disqualify the care and services provided from qualifying as

uncompensated care.

     (b) Penalty period resulting from transfer. Any transfer or assignment of assets resulting

in the establishment or imposition of a penalty period shall create a debt that shall be due and

owing to a nursing facility for the unpaid costs of care provided during the penalty period to a

patient of that facility who has been subject to the penalty period. The amount of the debt

established shall not exceed the fair market value of the transferred assets at the time of transfer

that are subject of the penalty period. A nursing facility may bring an action to collect a debt for

the unpaid costs of care given to a patient who has been subject to a penalty period, against either

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the transferor or the transferee, or both. The provisions of this section shall not affect other rights

or remedies of the parties.

     (c) Applied income. A nursing facility may provide written notice to a patient who is a

Medicaid recipient and any authorized individual of that patient of:

     (1) The amount of applied income due;

     (2) The recipient's legal obligation to pay the applied income to the nursing facility; and

     (3) That the recipient's failure to pay applied income due to a nursing facility not later

than thirty (30) days after receiving such notice from the nursing facility may result in a court

action to recover the amount of applied income due.

     A nursing facility that is owed applied income may, in addition to any other remedies

authorized under law, bring a claim to recover the applied income against a patient and any

authorized individual. If a court of competent jurisdiction determines, based upon clear and

convincing evidence, that a defendant willfully failed to pay or withheld applied income due and

owing to a nursing facility for more than thirty (30) days after receiving notice pursuant to

subsection (d) of this section, the court may award the amount of the debt owed, court costs and

reasonable attorneys' fees to the nursing facility.

     (d) Effects. Nothing contained in this section shall prohibit or otherwise diminish any

other causes of action possessed by any such nursing facility. The death of the person receiving

nursing facility care shall not nullify or otherwise affect the liability of the person or persons

charged with the costs of care rendered or the applied income amount as referenced in this

section.

     SECTION 3. Chapter 15-10 of the General Laws entitled "Support of Parents" is hereby

amended by adding thereto the following section:

     15-10-8. Support for certain patients of nursing facilities. – The uncompensated costs

of care provided by a licensed nursing facility to any person may be recovered by the nursing

facility from any child of that person who is above the age of eighteen (18) years, to the extent

that the child previously received a transfer of any interests or assets from the person receiving

such care, which transfer resulted in a period of Medicaid ineligibility imposed pursuant to 42

U.S.C. 1396p(c), as amended from time to time, on a person whose assets have been transferred

for less than fair market value.

     Recourse hereunder shall be limited to the fair market value of the interests or assets

transferred at the time of transfer. For the purposes of this section, "the costs of care" means the

costs of providing care, including nursing care, personal care, meals, transportation and any other

costs, charges, and expenses incurred by the facility. Costs of care shall not exceed the customary

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rate the nursing facility charges to a patient who pays for his or her care directly rather than

through a governmental or other third-party payor. Nothing contained in this section shall prohibit

or otherwise diminish any other causes of action possessed by any such nursing facility. The

death of the person receiving nursing facility care shall not nullify or otherwise affect the liability

of the person or persons charged with the costs of care hereunder.

     SECTION 4. Section 40-5-13 of the General Laws in Chapter 40-5 entitled "Support of

the Needy" is hereby amended to read as follows:

     40-5-13. Obligation of kindred for support. – (a) The kindred of any poor person, if

any he or she shall have in the line or degree of father or grandfather, mother or grandmother,

children or grandchildren, by consanguinity, or children by adoption, living within this state and

of sufficient ability, shall be holden to support the pauper in proportion to their ability.

     (b) The uncompensated costs of care provided by a licensed nursing facility to any person

may be recovered by the nursing facility from any person who is obligated to provide support to

that patient under subsection (a) of this section, to the extent that the individual so obligated

received a transfer of any interests or assets from the patient receiving such care, which transfer

resulted in a period of Medicaid ineligibility imposed pursuant to 42 U.S.C. 1396p(c), as

amended from time to time, on a person whose assets have been transferred for less than fair

market value.

     Recourse hereunder shall be limited to the fair market value of the interests or assets

transferred at the time of transfer. For the purposes of this section, "the costs of care" means the

costs of providing care, including nursing care, personal care, meals, transportation and any other

costs, charges, and expenses incurred by the facility. Costs of care shall not exceed the customary

rate the nursing facility charges to a patient who pays for his or her care directly rather than

through a governmental or other third-party payor. Nothing contained in this section shall prohibit

or otherwise diminish any other causes of action possessed by any such nursing facility. The

death of the person receiving nursing facility care shall not nullify or otherwise affect the liability

of the person or persons charged with the costs of care hereunder.

     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS

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     This act would provide appeal rights to patients who are being discharged from a nursing

home for nonpayment of charges. The uncompensated costs of care provided by a licensed

nursing facility may in some cases be recovered from a child of that patient.

     This act would take effect upon passage.

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