§ 167:4 — Eligibility for Assistance

I. Public assistance, including medical assistance and food stamps, shall be granted under this chapter or RSA 161 to any eligible person as defined in RSA 167:6 or RSA 161 who has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health and may be granted to anyone who is an inmate of a public institution, including a patient in a public medical institution which meets the federal or state standards and is so certified by the appropriate state and federal agency, except that:
(a) In the determination of sufficiency of income and resources, the commissioner of the department of health and human services may disregard such income and resources as may be permitted by the Social Security Act of the United States, as amended, and by the Food Stamp Act of the United States, as amended.
(b) To the extent permissible under federal law, in the case of an applicant for public assistance or medical assistance who has made an assignment or transfer of assets to an individual for less than fair market value within 36 months, or for up to 60 months if deemed necessary by the department based upon case specific information or extenuating circumstances, or in the case of transfers of real estate, or transfers of assets to a trust or portions of a trust that are treated as assets disposed of by the individual within 36 months, or for up to 60 months if deemed necessary by the department based upon case specific information or extenuating circumstances, immediately preceding the date of application or while the application is pending, or in the case of a recipient of public assistance or medical assistance who makes such an assignment or transfer while in receipt of the assistance, the assistance sought shall only be granted or continue to be granted in accordance with rules establishing restrictions and eligibility criteria for such cases as adopted by the commissioner of the department of health and human services under RSA 541-A, subject to applicable federal regulations and waiver approval, if any, and review by the oversight committee on health and human services, established in RSA 126-A:13. The oversight committee on health and human services shall make a report to the legislative fiscal committee which shall have final approval authority.
(c) Public assistance, medical assistance, or food stamps shall not be granted to an applicant, or continue to be granted to a recipient, who has refused to accept suitable employment, in accordance with rules adopted by the commissioner of the department of health and human services under RSA 541-A, subject to federal regulations when applicable.
II, III. [Repealed.]
III-a. Pursuant to section 1917(c)(2)(D) of the federal Social Security Act and the Deficit Reduction Act of 2005, Public Law 109-171, section 6011(d), a transfer of asset penalty shall not be imposed if the penalty would result in an undue hardship to the transferor under any of the following conditions:
(a) The asset was transferred by an agent or authorized representative and it can be demonstrated and documented that the individual lacked the mental capacity to comprehend the disqualifying nature of the act; and
(1) A written and signed statement by a licensed physician states that the individual was mentally incapacitated at the time of the transfer; or
(2) An order of findings from a probate court concerning the individual's competency is provided to the district office.
(b) Application of the penalty would deprive the individual of necessary care such that his or her health or life would be endangered.
(c) Application of the penalty would deprive the individual of food, clothing, shelter, or other necessities of life.
IV. (a) It is hereby found and determined by the general court that the medicaid eligibility laws of this state are in need of amendment to assure that otherwise ineligible individuals are prevented from artificially impoverishing themselves to receive benefits to which they are not otherwise entitled and to facilitate recovery of improperly obtained benefits and to assure the fiscal integrity of the funds appropriated for medicaid.
(b)(1) Notwithstanding any provision of law to the contrary and consistent with section 1917(e) of the Social Security Act as amended by the Deficit Reduction Act of 2005, (DEFRA), Public Law 190-171, for purposes of Medicaid eligibility, investment in annuities shall be limited to those annuities that:
(A) Are actuarially sound as measured against the Social Security Administration Life Expectancy tables as amended;
(B) Provide equal or nearly equal payments for the duration of the device and which exclude "balloon" style final payments; and
(C) Provide state of New Hampshire secondary or contingent beneficiary status ensuring payment if the individual predeceases the duration of the annuity, in an amount equal to the medicaid expenditure made by the state of New Hampshire on the individual's behalf.
(2) All such annuities owned by the applicant or the applicant's spouse shall be disclosed to the department at the time of the application.
(c) Notwithstanding any provision of law to the contrary, for purposes of medicaid eligibility, investment in life insurance policies with cash surrender value in excess of $1,500 shall be limited to policies that ensure payment to the state of New Hampshire of all the proceeds of the policy in excess of amounts spent on burial up to the total of medicaid expenditures made on behalf of the individual.
(d) Pursuant to section 1917(b)(1) of the Social Security Act as amended by DEFRA, the commissioner shall submit a state plan amendment establishing a long-term care partnership recognizing the investment in long-term care insurance policies by Medicaid applicants by disregarding resources or assets in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy which meets the criteria described in DEFRA and regulations promulgated thereunder. The estates of recipients of medical assistance for institutional level of care for whom the resource ceiling has been adjusted as described in this subparagraph, shall be exempt from recovery pursuant to RSA 167:13 and RSA 167:14 in an amount equal to the insurance benefit payments received.
(e) The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the proper administration of this paragraph.
V. Distributions of the income or principal, or both, of a special needs trust to or for the benefit of the disabled beneficiary shall be disregarded for income eligibility purposes of all categories of public medical assistance to the same extent that such distributions are disregarded for purposes of Title XVI of the Social Security Act. Funds expended by a trustee of a special needs trust to purchase or maintain assets owned by the trustee in his or her capacity as trustee of the trust shall also be disregarded for such income eligibility purposes. For the purposes of this paragraph "special needs trust" means any trust established by a third party for the sole benefit of an individual who is considered disabled under the provisions of section 1614(a)(3) of the Social Security Act, and any trust funded with the resources of such an individual and complying with the provisions of section 1917(d)(4) of such Act.

Legislative History

1937, 202:10. RL 126:10. 1951, 139:7. 1953, 87:1. RSA 167:4. 1961, 50:1. 1965, 154:1. 1967, 396:3. 1975, 29:1; 445:1. 1979, 212:1. 1981, 305:1. 1983, 288:1; 291:1, II. 1986, 183:3. 1989, 16:1. 1994, 237:1. 1995, 310:40, 170, VIII. 2003, 154:1. 2005, 175:4, 5. 2006, 278:2-4. 2007, 166:1, eff. Nov. 1, 2007; 193:1, eff. Aug. 17, 2007. 2023, 79:576, eff. July 1, 2023.