An Act To Improve MaineCare Cost-of-care Procedures Affecting Nursing Facility Residents and to Establish Clearer Duties for Powers of Attorney
Maine Legislature, Session 121, LD 1260
Committee: Health and Human Services
Sponsors: MARTIN, BRENNAN, TURNER, WESTON, CURLEY, LEWIN
Amends: 22 MRSA §3174-I

Legislative Document 
No. 1260 
S.P.406 
In Senate, March 6, 2003 
An Act To Improve MaineCare Cost-of-care Procedures Affecting 
Nursing Facility Residents and to Establish Clearer Duties for 
Powers of Attorney 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
Presented by Senator MARTIN of Aroostook. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Senators: BRENNAN of Cumberland, TURNER of Cumberland, WESTON 
of Waldo, Representatives: CURLEY of Scarborough, DUGA Y of Cherryfield, LEWIN of 
Eliot. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRS A §1826-A is enacted to read: 
§1826-A. 
Duties owed by persons who hold powers of attorney 
and other agents to residents of health care facilities 
1. 
Applicability. 
An 
individual 
who 
holds 
a 
power 
of 
attorney, serves as a guardian or conservator or otherwise serves 
as a personal representative of a resident of a nursing facility, 
assisted living facility, residential care facility or related 
facility, referred to in this section as "an agent," is subject 
to the duties, obligations and procedures set forth in this 
section. 
2. 
Fiduciary duty. 
An agent has 
a fiduciary duty with 
respect to all of that agent's actions on behalf of any person 
for whom that agent serves as agent, referred to in this section 
as "the principal. II 
An agent shall apply the available resources 
of the principal to make timely payment for services rendered by 
a licensed health care facility to the principal. 
An agent shall 
work cooperatively with facility management and government payors 
to secure available coverage, 
including, but not limited to, 
coverage from the Medicare and MaineCare programs. 
3. 
Enforcement. 
A provider of health care services to a 
principaL the department or the long-term care ombudsman may 
file a petition in the Superior Court or the Probate Court to 
determine the legality of acts or omissions of an agent or to 
compel an agent to submit an accounting of any actions on behalf 
of the principal. 
The accounting must be made 
by the agent 
within 50 days following a reguest, though this 50-day time frame 
may be shortened to 7 days in any matter that reguires a timely 
decision 
affecting health 
care. 
These 
time 
limits 
may 
be 
shortened by the court for good cause shown. 
The court may 
terminate the power of attorney upon a determination that the 
agent has violated or is unfit to perform the agent's fiduciary 
duties under the power of attorney or that termination is in the 
best interest of the principal or the principal's estate. 
4. 
Responsibility for costs and attorney's fees. 
The court 
may order the agent to pay reasonable attorney's fees to the 
petitioner if the court determines that the agent has violated 
the agent's fiduciary duties or has failed, without reasonable 
cause or justification, 
to 
submit accounts or reports after 
written reguest. 
Sec. 2. 22 MRSA §3174-I, sub-§4 is enacted to read: 
Page l-LR1303(1) 
4. 
Cost-of-care 
determinations 
and 
adjustments. 
The 
department may carry out periodic adjustments to an individual 
MaineCare 
recipient's 
cost 
of 
care 
consistent 
with 
this 
subsection and applicable federal laws and regulations. 
A. 
To 
the extent reasonably practicable, the department 
shall determine, on a prospective basis, the MaineCare cost 
of care of an individual MaineCare recipient residing in a 
nursing facility or other health care institution, referred 
to in this subsection as "a health care institution. II 
The 
department shall simultaneously determine: 
(1) 
The amount of the MaineCare payments to be paid to 
the health care institution; and 
(2) 
The amount of the income and other resources that 
the individual MaineCare recipient and the recipient's 
spouse may retain for their personal use. 
B. 
When it is not reasonably practicable for the department 
to make its initial cost-of-care determinations effective 
prior to the beginning of a particular month, the department 
shall make its initial determination as soon as practicable 
and that determination may be effective retroactively for up 
to 3 months prior to the date of the determination. 
C. 
The department shall make monthly prospective MaineCare 
payments to a health care institution for care rendered to 
each MaineCare recipient in accordance with the cost-of-care 
determination it has made in accordance with paragraph A or 
.Ii....-
D. 
When 
the 
department 
has 
already 
made 
an 
initial 
determination 
pursuant 
to 
paragraph 
A 
or 
B 
and 
the 
department 
subsequently 
determines 
to 
adjust 
that 
determination in a 
manner 
that reduces 
the cost-of-care 
amount that is paid to a health care institution by the 
MaineCare 
program, 
the 
department 
may 
not 
retroactively 
reduce the amount of the MaineCare payment to the health 
care institution unless the individual MaineCare recipient, 
or the recipient's responsible party, has paid to the health 
care 
institution 
the 
additional 
amount 
for 
which 
the 
individual 
is 
determined 
responsible 
following 
the 
department's redetermination. 
E. 
The department, and not a health care institution, has 
the 
obligation to 
recover 
from 
an 
individual 
MaineCare 
recipient the 
amount 
by which the previously determined 
MaineCare cost-of-care payment has been determined to exceed 
the amount of MaineCare benefit that individual is entitled 
to receive. 
F. 
When an individual is not able to pay the increased 
amount to a health care institution, the department may not 
recoup from the heal th care institution any portion of the 
MaineCare payments the department was obligated to pay to 
the 
health 
care 
institution 
based 
on 
the 
prior 
determination. 
When 
the 
individual 
MaineCare 
recipient 
residing in the health care institution is unwilling or 
unable to pay the additional amount, the MaineCare program 
continues to be responsible for the full 
amount of the 
originally 
calculated 
cost-of-care 
portion 
that 
was 
allocated to the MaineCare program pursuant to that prior 
determination. 
SUMMARY 
This bill provides that an individual who holds a power of 
attorney, serves as a guardian or conservator or otherwise serves 
as a personal representative of a resident of a nursing facility, 
assisted living facility, residential care facility or related 
facility has a fiduciary duty with respect to that individual's 
actions on behalf of that resident. 
Such an individual shall 
apply the available resources of the resident to make timely 
payment for services rendered by a licensed health care facility 
to the resident and work to secure available coverage, including 
coverage from the Medicare and MaineCare programs. 
This bill requires the Department of Human Services, to the 
extent reasonably practicable, 
to determine 
on 
a 
prospective 
basis the MaineCare cost of care of an individual MaineCare 
recipient residing in a nursing facility or other health care 
institution and make monthly prospective MaineCare payments to 
the health care institution. 
It provides that the department may 
not retroactively reduce the amount of the MaineCare payment to a 
nursing facility or other health care institution unless the 
individual MaineCare recipient or the recipient's responsible 
party has paid to the nursing facility or other health care 
institution the additional amount for which the department has 
determined the individual MaineCare recipient is responsible.