An Act To Encourage Family Care of Aging Adults
Maine Legislature, Session 130, LD 1427
Committee: Health and Human Services
Sponsors: HASENFUS, BALDACCI, CRAVEN, FAY, WHITE
Amends: 22 MRSA §3173-J

Legislative Document
No. 1427
H.P. 1043
House of Representatives, April 12, 2021
An Act To Encourage Family Care of Aging Adults
Received by the Clerk of the House on April 8, 2021.  Referred to the Committee on Health 
and Human Services pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 
401.
ROBERT B. HUNT
Clerk
Presented by Representative HASENFUS of Readfield.
Cosponsored by Senator BALDACCI of Penobscot and
Representatives: CRAVEN of Lewiston, FAY of Raymond, WHITE of Waterville.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §3173-J is enacted to read:
§3173-J.  Transfer of assets; relative caregiver
Notwithstanding section 3174-A or any other law to the contrary, the department may 
not assess a penalty on payments made to a relative caregiver for reasonable services 
rendered within 5 years prior to applying for long-term care coverage of a member under 
the MaineCare program.  Such payments may not be considered a transfer of assets for less 
than fair market value as long as there is reasonably reliable evidence that the services were 
provided and that the compensation did not exceed the value of the services based on the 
average cost of such services in the geographic area where the services were provided.  In 
the event a relative caregiver provided such services but was not paid for such services 
prior to the applicant's applying under the MaineCare program, that person's inheritance 
from the applicant, if any, is exempt from the State's share of estate recovery under section 
14, subsection 2-I in an amount equal to the fair market value of the services rendered.
Neither a physician's statement nor a service contract is required as a condition of long-
term care coverage under the MaineCare program, but such a statement or contract may be 
used as evidence that the services were provided and that compensation was reasonable.
The department shall adopt rules to implement this section, including its MaineCare 
eligibility rules, and provide that this section is implemented by department staff in the 
department's application review procedures and in the estate recovery process. Rules 
adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 
375, subchapter 2-A.
As used in this section, "reasonable services" means personal care assistance services 
the cost of which is equal to or less than comparable services provided in a facility setting 
and "relative caregiver" means an immediate family member or other relative of a recipient 
of services who provides reasonable services to that recipient of services.
Sec. 2.  Section 1915(c) waiver.  The Department of Health and Human Services 
shall seek a waiver pursuant to Section 1915(c) of the United States Social Security Act to 
allow a person eligible for long-term care services to select a relative to provide that person 
with personal care assistance services, as defined in the Maine Revised Statutes, Title 22, 
section 7302, subsection 7, in a home setting pursuant to Title 22, section 7307 and to allow 
the provider of personal care assistance services to be reimbursed under the MaineCare 
program.
Sec. 3.  Rule amendment.  The Department of Health and Human Services shall 
amend its rules pertaining to eligibility for long-term care services under the MaineCare 
program or state-funded programs as follows:
1.  The department may not require, as a condition of eligibility, that an applicant have 
a prospective, legally enforceable written agreement governing the paid services provided 
by a relative;
2. The department may not presume that an applicant who has received paid services 
from a family member without a written agreement has done so for the purpose of 
qualifying for public benefits; 
3.  The department may not presume that an applicant has made a disqualifying transfer 
of assets in the absence of a statement from a physician that the paid services provided by 
a relative were necessary.  The department may require that the applicant, at the time of 
application, obtain a written statement from the applicant's physician confirming that the 
services provided in the past were necessary to prevent the applicant's transfer to residential 
or nursing facility care;
4.  The department may not presume that an applicant who lives in a residential care or 
nursing facility has made a transfer of assets for less than fair market value, triggering a 
period of ineligibility, if the applicant pays reasonable compensation to a relative to provide 
services that are not provided by the facility or that supplement the services provided by 
the facility;
5.  The department shall amend its rules to change the definition of "services" to mean 
assistance provided by a relative with activities of daily living or instrumental activities of 
daily living; and
6. With respect to an applicant’s reimbursement of a relative for the relative’s providing 
necessities or purchasing goods and services for the applicant, the department may not 
require, as a condition of eligibility, a written agreement governing such reimbursement or 
a statement from a physician that the purchases are or were necessary.
The department shall adopt rules to incorporate the amendments required by this 
section by October 15, 2022 and shall notify the Joint Standing Committee on Health and 
Human Services of the completion of the rulemaking.  Rules adopted pursuant to this 
section are routine technical rules as defined in the Maine Revised Statutes, Title 5, chapter 
375, subchapter 2-A.
SUMMARY
This bill provides that the Department of Health and Human Services may not assess a 
penalty on payments made to a family member providing personal support services within 
years of a MaineCare member applying for long-term care coverage and exempts these 
payments from the State's share of estate recovery.  It directs the Department of Health and 
Human Services to seek a waiver pursuant to Section 1915(c) of the United States Social 
Security Act to allow the provision of personal support services by a relative chosen by the 
recipient of services in a home setting.
It requires the Department of Health and Human Services to amend its rules on 
eligibility for long-term care services provided under the MaineCare program or state-
funded programs to remove provisions and presumptions that disqualify some persons from 
eligibility for long-term care.  Amendments to the rules will enable more people to qualify 
for long-term care services by removing the requirements of written agreements and by 
removing the presumptions regarding the purpose of paying for services and certain 
transfers.  It directs the department to adopt routine technical rules to incorporate the 
amendments by October 15, 2022 and to notify the Joint Standing Committee on Health 
and Human Services of the completion of the rulemaking.