§ 108A‑58.2. Waiver oftransfer of assets penalty due to undue hardship.
(a) Prior to impositionof a period of ineligibility for long‑term care services because of anasset transfer, also known as a penalty period, the county department of socialservices shall notify the individual of the individual's right to request awaiver of the penalty period because it will cause an undue hardship to theindividual. The director of the county department of social services, or thedirector's designee shall grant a waiver of the penalty period due to unduehardship if the individual meets the conditions set forth in subsection (e) ofthis section. As used in this section, "long term care services" arethose services described in 42 U.S.C. § 1396p(c)(1)(C)(i) and (ii).
(b) When a Medicaidapplicant who is requesting Medicaid to pay for institutional care requests awaiver of a penalty period due to undue hardship, the determination of whetherto waive the penalty period shall be processed as part of the Medicaid applicationand is subject to the application processing standards set forth in 10A NCAC21B.0203.
(c) When an ongoingMedicaid recipient applies for institutional care or is receiving Medicaidpayment for institutional care receives the notice described in subsection (a)of this section, the recipient has 12 calendar days from the date of the noticeto request a waiver of the penalty due to undue hardship. The following are theprocedures for processing the waiver request:
(1) Within five workdays of receipt of a request for a waiver of the transfer of assets penalty,the county department of social services shall notify the individual in writingof the information and documentation necessary to determine if the requirementsfor approving the undue hardship waiver are met.
(2) The individual shallhave 12 calendar days from the date of the notice specified in subdivision (1)of this subsection to provide the necessary information and documentation toestablish the undue hardship.
(3) If at the end of thefirst 12 calendar day period the necessary information and documentation hasnot been received by the county department of social services, the countydepartment of social services shall again notify the individual of thenecessary information and documentation. The individual shall be given anadditional 12 calendar days to provide the information and documentation.
(4) If the individualfails to request the undue hardship waiver within 12 calendar days from thedate of the notice described in subsection (a) of this section, the countydepartment of social services shall impose the transfer of assets penalty inaccordance with notice requirements in G.S. 108A‑79.
(5) If by the end of the12 calendar days from the notice described in subdivision (3) of this subsection,the necessary information and documentation has not been received by the countydepartment of social services, the county department of social services shalldeny the request for waiver of the penalty for undue hardship and notify theindividual of the denial in accordance with G.S. 108A‑79.
(6) If by the end of thetime allowed under subdivisions (2) and (3) of this subsection the countydepartment of social services has received the necessary information anddocumentation, the county department of social services shall make adetermination of whether the imposition of the penalty period would cause anundue hardship to the individual. The county department of social servicesshall complete the determination and notify the individual, pursuant to subsection(g) of this section, of whether the imposition of the penalty period will bewaived due to undue hardship within 12 calendar days of the receipt of thenecessary information and documentation.
(7) If as part of thedetermination described in subdivision (6) of this subsection the countydepartment of social services identifies the need for additional informationand documentation, it shall notify the individual in writing of thatinformation and documentation. This notice shall initiate a new period of timefor the individual to provide the information and documentation as set forth insubdivisions (2) and (3) of this subsection. Within 12 calendar days of thereceipt of the additional information and documentation, the county departmentof social services shall complete the determination and notify the individual,pursuant to subsection (g) of this section, of whether the imposition of thepenalty period will be waived due to undue hardship.
(d) As required by 42U.S.C. § 1396p(c)(2)(D), the facility in which an institutionalized individualis residing may request an undue hardship waiver on behalf of theinstitutionalized individual with the written consent of the individual or thepersonal representative of the individual. A facility applying for a waiver foran individual residing in the facility shall adhere to the requirements of thissection but shall not be required to advance the costs of acquiring an attorneyto aid the institutionalized individual.
(e) Except as providedfor in subsection (f) of this section, undue hardship exists if the impositionof the penalty period would deprive the individual of medical care, such thatthe individual's health or life would be endangered; or of food, clothing,shelter, or other necessities of life. The individual must provide theinformation and documentation necessary to demonstrate to the director of thecounty department of social services or the director's designee that:
(1) The individualcurrently has no alternative income or resources available to provide themedical care or food, clothing, shelter, or other necessities of life that theindividual would be deprived of due to the imposition of the penalty; and
(2) The individual orsome other person acting on the individual's behalf is making a good faitheffort to pursue all reasonable means to recover the transferred asset or thefair market value of the transferred asset, which may include:
a. Seeking the adviceof an attorney and pursuing legal or equitable remedies such as asset freezing,assignment, or injunction; or seeking modification, avoidance, or nullificationof a financial instrument, promissory note, loan, mortgage or other propertyagreement, or other similar transfer agreement; and
b. Cooperating with anyattempt to recover the transferred asset or the fair market value of thetransferred asset.
(3) The followingdefinitions shall apply to this subsection.
a. "Health or lifewould be endangered" means a medical doctor with knowledge of theindividual's medical condition certifies in writing that in his or herprofessional opinion, the individual will be in danger of death or theindividual's health will suffer irreparable harm if a penalty period isimposed.
b. "Othernecessities of life" includes basic, life sustaining utilities, including water,heat, electricity, phone, and other items or activities that without which theindividual's health or life would be endangered.
c. "Income"means all income of the individual and the community spouse less a protectedamount for the community spouse equal to the minimum monthly maintenance needsallowance as determined under 42 U.S.C. § 1396r‑5(d), including in allcircumstances the excess shelter allowance described under 42 U.S.C. § 1396r‑5(d)(3)(A)(ii),without regard to any adjustment that would be made under 42 U.S.C. § 1396r‑5(e),plus fifty percent (50%) of such income in excess of the protected amount.
d. "Resources"means all resources of the individual and of the community spouse except thehomesite in which the individual or community spouse has an equity interest notexceeding five hundred thousand dollars ($500,000), a motor vehicle in whichthe individual or community spouse has an equity interest not exceeding thirtythousand dollars ($30,000), personal property, and, in the case of a communityspouse, a portion of such other resources in an amount equal to the communityspouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2),provided that such amount shall not exceed sixty percent (60%) of the maximumcommunity spouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2)(A)(ii).For purposes of this sub‑subdivision, "homesite" means theprincipal place of residence of the individual or the community spouse in whichthe individual or community spouse has an equity interest.
(f) An undue hardshipshall not exist when the application of a transfer of assets penalty merelycauses the individual an inconvenience or restricts the individual's lifestyle.
(g) If the director ofthe county department of social services or the director's designee determinesthat:
(1) An undue hardshipexists, the county department of social services shall waive the penalty periodand notify the individual of approval of the waiver of the penalty inaccordance with G.S. 108A‑79.
(2) An undue hardship doesnot exist, the county department of social services shall deny the request forthe waiver of the penalty and notify the individual of denial of the waiverrequest in accordance with G.S. 108A‑79.
(h) During a penaltyperiod that has been waived because of undue hardship, acquisition by theindividual of new or increased income or resources shall be treated as a changein situation and evaluated pursuant to the rules adopted by the Department ofHealth and Human Services.
(i) While thedetermination on a request for a waiver of the penalty period due to unduehardship is pending, Medicaid shall not make payments for nursing facilityservices or intermediate care facility for the mentally retarded services tohold a bed for the individual, as described in 42 U.S.C. § 1396p(c)(2)(D).However, if the individual is institutionalized and receiving Medicaid paymentfor services, Medicaid will maintain the same level of services until the lastday of the month after the latter of the following:
(1) Expiration of the 10workday period following the notice required by G.S. 108A‑79, or
(2) The date of thedecision of a local appeal hearing described in G.S. 108A‑79 is issued ifthe individual requests an appeal of the imposition of a transfer of assetspenalty period within the 10 workday period described in subdivision (1) ofsubsection (i) of this section. (2007‑442, s. 3(a).)
§ 108A‑58.2. Waiver oftransfer of assets penalty due to undue hardship.
(a) Prior to impositionof a period of ineligibility for long‑term care services because of anasset transfer, also known as a penalty period, the county department of socialservices shall notify the individual of the individual's right to request awaiver of the penalty period because it will cause an undue hardship to theindividual. The director of the county department of social services, or thedirector's designee shall grant a waiver of the penalty period due to unduehardship if the individual meets the conditions set forth in subsection (e) ofthis section. As used in this section, "long term care services" arethose services described in 42 U.S.C. § 1396p(c)(1)(C)(i) and (ii).
(b) When a Medicaidapplicant who is requesting Medicaid to pay for institutional care requests awaiver of a penalty period due to undue hardship, the determination of whetherto waive the penalty period shall be processed as part of the Medicaid applicationand is subject to the application processing standards set forth in 10A NCAC21B.0203.
(c) When an ongoingMedicaid recipient applies for institutional care or is receiving Medicaidpayment for institutional care receives the notice described in subsection (a)of this section, the recipient has 12 calendar days from the date of the noticeto request a waiver of the penalty due to undue hardship. The following are theprocedures for processing the waiver request:
(1) Within five workdays of receipt of a request for a waiver of the transfer of assets penalty,the county department of social services shall notify the individual in writingof the information and documentation necessary to determine if the requirementsfor approving the undue hardship waiver are met.
(2) The individual shallhave 12 calendar days from the date of the notice specified in subdivision (1)of this subsection to provide the necessary information and documentation toestablish the undue hardship.
(3) If at the end of thefirst 12 calendar day period the necessary information and documentation hasnot been received by the county department of social services, the countydepartment of social services shall again notify the individual of thenecessary information and documentation. The individual shall be given anadditional 12 calendar days to provide the information and documentation.
(4) If the individualfails to request the undue hardship waiver within 12 calendar days from thedate of the notice described in subsection (a) of this section, the countydepartment of social services shall impose the transfer of assets penalty inaccordance with notice requirements in G.S. 108A‑79.
(5) If by the end of the12 calendar days from the notice described in subdivision (3) of this subsection,the necessary information and documentation has not been received by the countydepartment of social services, the county department of social services shalldeny the request for waiver of the penalty for undue hardship and notify theindividual of the denial in accordance with G.S. 108A‑79.
(6) If by the end of thetime allowed under subdivisions (2) and (3) of this subsection the countydepartment of social services has received the necessary information anddocumentation, the county department of social services shall make adetermination of whether the imposition of the penalty period would cause anundue hardship to the individual. The county department of social servicesshall complete the determination and notify the individual, pursuant to subsection(g) of this section, of whether the imposition of the penalty period will bewaived due to undue hardship within 12 calendar days of the receipt of thenecessary information and documentation.
(7) If as part of thedetermination described in subdivision (6) of this subsection the countydepartment of social services identifies the need for additional informationand documentation, it shall notify the individual in writing of thatinformation and documentation. This notice shall initiate a new period of timefor the individual to provide the information and documentation as set forth insubdivisions (2) and (3) of this subsection. Within 12 calendar days of thereceipt of the additional information and documentation, the county departmentof social services shall complete the determination and notify the individual,pursuant to subsection (g) of this section, of whether the imposition of thepenalty period will be waived due to undue hardship.
(d) As required by 42U.S.C. § 1396p(c)(2)(D), the facility in which an institutionalized individualis residing may request an undue hardship waiver on behalf of theinstitutionalized individual with the written consent of the individual or thepersonal representative of the individual. A facility applying for a waiver foran individual residing in the facility shall adhere to the requirements of thissection but shall not be required to advance the costs of acquiring an attorneyto aid the institutionalized individual.
(e) Except as providedfor in subsection (f) of this section, undue hardship exists if the impositionof the penalty period would deprive the individual of medical care, such thatthe individual's health or life would be endangered; or of food, clothing,shelter, or other necessities of life. The individual must provide theinformation and documentation necessary to demonstrate to the director of thecounty department of social services or the director's designee that:
(1) The individualcurrently has no alternative income or resources available to provide themedical care or food, clothing, shelter, or other necessities of life that theindividual would be deprived of due to the imposition of the penalty; and
(2) The individual orsome other person acting on the individual's behalf is making a good faitheffort to pursue all reasonable means to recover the transferred asset or thefair market value of the transferred asset, which may include:
a. Seeking the adviceof an attorney and pursuing legal or equitable remedies such as asset freezing,assignment, or injunction; or seeking modification, avoidance, or nullificationof a financial instrument, promissory note, loan, mortgage or other propertyagreement, or other similar transfer agreement; and
b. Cooperating with anyattempt to recover the transferred asset or the fair market value of thetransferred asset.
(3) The followingdefinitions shall apply to this subsection.
a. "Health or lifewould be endangered" means a medical doctor with knowledge of theindividual's medical condition certifies in writing that in his or herprofessional opinion, the individual will be in danger of death or theindividual's health will suffer irreparable harm if a penalty period isimposed.
b. "Othernecessities of life" includes basic, life sustaining utilities, including water,heat, electricity, phone, and other items or activities that without which theindividual's health or life would be endangered.
c. "Income"means all income of the individual and the community spouse less a protectedamount for the community spouse equal to the minimum monthly maintenance needsallowance as determined under 42 U.S.C. § 1396r‑5(d), including in allcircumstances the excess shelter allowance described under 42 U.S.C. § 1396r‑5(d)(3)(A)(ii),without regard to any adjustment that would be made under 42 U.S.C. § 1396r‑5(e),plus fifty percent (50%) of such income in excess of the protected amount.
d. "Resources"means all resources of the individual and of the community spouse except thehomesite in which the individual or community spouse has an equity interest notexceeding five hundred thousand dollars ($500,000), a motor vehicle in whichthe individual or community spouse has an equity interest not exceeding thirtythousand dollars ($30,000), personal property, and, in the case of a communityspouse, a portion of such other resources in an amount equal to the communityspouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2),provided that such amount shall not exceed sixty percent (60%) of the maximumcommunity spouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2)(A)(ii).For purposes of this sub‑subdivision, "homesite" means theprincipal place of residence of the individual or the community spouse in whichthe individual or community spouse has an equity interest.
(f) An undue hardshipshall not exist when the application of a transfer of assets penalty merelycauses the individual an inconvenience or restricts the individual's lifestyle.
(g) If the director ofthe county department of social services or the director's designee determinesthat:
(1) An undue hardshipexists, the county department of social services shall waive the penalty periodand notify the individual of approval of the waiver of the penalty inaccordance with G.S. 108A‑79.
(2) An undue hardship doesnot exist, the county department of social services shall deny the request forthe waiver of the penalty and notify the individual of denial of the waiverrequest in accordance with G.S. 108A‑79.
(h) During a penaltyperiod that has been waived because of undue hardship, acquisition by theindividual of new or increased income or resources shall be treated as a changein situation and evaluated pursuant to the rules adopted by the Department ofHealth and Human Services.
(i) While thedetermination on a request for a waiver of the penalty period due to unduehardship is pending, Medicaid shall not make payments for nursing facilityservices or intermediate care facility for the mentally retarded services tohold a bed for the individual, as described in 42 U.S.C. § 1396p(c)(2)(D).However, if the individual is institutionalized and receiving Medicaid paymentfor services, Medicaid will maintain the same level of services until the lastday of the month after the latter of the following:
(1) Expiration of the 10workday period following the notice required by G.S. 108A‑79, or
(2) The date of thedecision of a local appeal hearing described in G.S. 108A‑79 is issued ifthe individual requests an appeal of the imposition of a transfer of assetspenalty period within the 10 workday period described in subdivision (1) ofsubsection (i) of this section. (2007‑442, s. 3(a).)
§ 108A‑58.2. Waiver oftransfer of assets penalty due to undue hardship.
(a) Prior to impositionof a period of ineligibility for long‑term care services because of anasset transfer, also known as a penalty period, the county department of socialservices shall notify the individual of the individual's right to request awaiver of the penalty period because it will cause an undue hardship to theindividual. The director of the county department of social services, or thedirector's designee shall grant a waiver of the penalty period due to unduehardship if the individual meets the conditions set forth in subsection (e) ofthis section. As used in this section, "long term care services" arethose services described in 42 U.S.C. § 1396p(c)(1)(C)(i) and (ii).
(b) When a Medicaidapplicant who is requesting Medicaid to pay for institutional care requests awaiver of a penalty period due to undue hardship, the determination of whetherto waive the penalty period shall be processed as part of the Medicaid applicationand is subject to the application processing standards set forth in 10A NCAC21B.0203.
(c) When an ongoingMedicaid recipient applies for institutional care or is receiving Medicaidpayment for institutional care receives the notice described in subsection (a)of this section, the recipient has 12 calendar days from the date of the noticeto request a waiver of the penalty due to undue hardship. The following are theprocedures for processing the waiver request:
(1) Within five workdays of receipt of a request for a waiver of the transfer of assets penalty,the county department of social services shall notify the individual in writingof the information and documentation necessary to determine if the requirementsfor approving the undue hardship waiver are met.
(2) The individual shallhave 12 calendar days from the date of the notice specified in subdivision (1)of this subsection to provide the necessary information and documentation toestablish the undue hardship.
(3) If at the end of thefirst 12 calendar day period the necessary information and documentation hasnot been received by the county department of social services, the countydepartment of social services shall again notify the individual of thenecessary information and documentation. The individual shall be given anadditional 12 calendar days to provide the information and documentation.
(4) If the individualfails to request the undue hardship waiver within 12 calendar days from thedate of the notice described in subsection (a) of this section, the countydepartment of social services shall impose the transfer of assets penalty inaccordance with notice requirements in G.S. 108A‑79.
(5) If by the end of the12 calendar days from the notice described in subdivision (3) of this subsection,the necessary information and documentation has not been received by the countydepartment of social services, the county department of social services shalldeny the request for waiver of the penalty for undue hardship and notify theindividual of the denial in accordance with G.S. 108A‑79.
(6) If by the end of thetime allowed under subdivisions (2) and (3) of this subsection the countydepartment of social services has received the necessary information anddocumentation, the county department of social services shall make adetermination of whether the imposition of the penalty period would cause anundue hardship to the individual. The county department of social servicesshall complete the determination and notify the individual, pursuant to subsection(g) of this section, of whether the imposition of the penalty period will bewaived due to undue hardship within 12 calendar days of the receipt of thenecessary information and documentation.
(7) If as part of thedetermination described in subdivision (6) of this subsection the countydepartment of social services identifies the need for additional informationand documentation, it shall notify the individual in writing of thatinformation and documentation. This notice shall initiate a new period of timefor the individual to provide the information and documentation as set forth insubdivisions (2) and (3) of this subsection. Within 12 calendar days of thereceipt of the additional information and documentation, the county departmentof social services shall complete the determination and notify the individual,pursuant to subsection (g) of this section, of whether the imposition of thepenalty period will be waived due to undue hardship.
(d) As required by 42U.S.C. § 1396p(c)(2)(D), the facility in which an institutionalized individualis residing may request an undue hardship waiver on behalf of theinstitutionalized individual with the written consent of the individual or thepersonal representative of the individual. A facility applying for a waiver foran individual residing in the facility shall adhere to the requirements of thissection but shall not be required to advance the costs of acquiring an attorneyto aid the institutionalized individual.
(e) Except as providedfor in subsection (f) of this section, undue hardship exists if the impositionof the penalty period would deprive the individual of medical care, such thatthe individual's health or life would be endangered; or of food, clothing,shelter, or other necessities of life. The individual must provide theinformation and documentation necessary to demonstrate to the director of thecounty department of social services or the director's designee that:
(1) The individualcurrently has no alternative income or resources available to provide themedical care or food, clothing, shelter, or other necessities of life that theindividual would be deprived of due to the imposition of the penalty; and
(2) The individual orsome other person acting on the individual's behalf is making a good faitheffort to pursue all reasonable means to recover the transferred asset or thefair market value of the transferred asset, which may include:
a. Seeking the adviceof an attorney and pursuing legal or equitable remedies such as asset freezing,assignment, or injunction; or seeking modification, avoidance, or nullificationof a financial instrument, promissory note, loan, mortgage or other propertyagreement, or other similar transfer agreement; and
b. Cooperating with anyattempt to recover the transferred asset or the fair market value of thetransferred asset.
(3) The followingdefinitions shall apply to this subsection.
a. "Health or lifewould be endangered" means a medical doctor with knowledge of theindividual's medical condition certifies in writing that in his or herprofessional opinion, the individual will be in danger of death or theindividual's health will suffer irreparable harm if a penalty period isimposed.
b. "Othernecessities of life" includes basic, life sustaining utilities, including water,heat, electricity, phone, and other items or activities that without which theindividual's health or life would be endangered.
c. "Income"means all income of the individual and the community spouse less a protectedamount for the community spouse equal to the minimum monthly maintenance needsallowance as determined under 42 U.S.C. § 1396r‑5(d), including in allcircumstances the excess shelter allowance described under 42 U.S.C. § 1396r‑5(d)(3)(A)(ii),without regard to any adjustment that would be made under 42 U.S.C. § 1396r‑5(e),plus fifty percent (50%) of such income in excess of the protected amount.
d. "Resources"means all resources of the individual and of the community spouse except thehomesite in which the individual or community spouse has an equity interest notexceeding five hundred thousand dollars ($500,000), a motor vehicle in whichthe individual or community spouse has an equity interest not exceeding thirtythousand dollars ($30,000), personal property, and, in the case of a communityspouse, a portion of such other resources in an amount equal to the communityspouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2),provided that such amount shall not exceed sixty percent (60%) of the maximumcommunity spouse resource allowance as defined by 42 U.S.C. § 1396r‑5(f)(2)(A)(ii).For purposes of this sub‑subdivision, "homesite" means theprincipal place of residence of the individual or the community spouse in whichthe individual or community spouse has an equity interest.
(f) An undue hardshipshall not exist when the application of a transfer of assets penalty merelycauses the individual an inconvenience or restricts the individual's lifestyle.
(g) If the director ofthe county department of social services or the director's designee determinesthat:
(1) An undue hardshipexists, the county department of social services shall waive the penalty periodand notify the individual of approval of the waiver of the penalty inaccordance with G.S. 108A‑79.
(2) An undue hardship doesnot exist, the county department of social services shall deny the request forthe waiver of the penalty and notify the individual of denial of the waiverrequest in accordance with G.S. 108A‑79.
(h) During a penaltyperiod that has been waived because of undue hardship, acquisition by theindividual of new or increased income or resources shall be treated as a changein situation and evaluated pursuant to the rules adopted by the Department ofHealth and Human Services.
(i) While thedetermination on a request for a waiver of the penalty period due to unduehardship is pending, Medicaid shall not make payments for nursing facilityservices or intermediate care facility for the mentally retarded services tohold a bed for the individual, as described in 42 U.S.C. § 1396p(c)(2)(D).However, if the individual is institutionalized and receiving Medicaid paymentfor services, Medicaid will maintain the same level of services until the lastday of the month after the latter of the following:
(1) Expiration of the 10workday period following the notice required by G.S. 108A‑79, or
(2) The date of thedecision of a local appeal hearing described in G.S. 108A‑79 is issued ifthe individual requests an appeal of the imposition of a transfer of assetspenalty period within the 10 workday period described in subdivision (1) ofsubsection (i) of this section. (2007‑442, s. 3(a).)
