Subsection 144-101-VII-5.07 - GENERAL REQUIREMENTS FOR ALL WAIVERSA claim under 5.03(B) may be waived if enforcement of the claim would cause an undue hardship for the person, providing that the person holds a beneficial interest in the Member's estate, as defined in this Section, and properly requests a hardship waiver. An applicant may request an undue hardship waiver because the applicant is reliant upon the assets of the estate or an undue hardship waiver based upon care given to the Member. The specific requirements for each type of waiver are set forth below. To qualify for a waiver, a person who is not a son or daughter of the deceased member must also be an adult, aged eighteen (18) or over. If a determination is made that an undue hardship exists, the Department may waive all or a portion of its claim.
Only one (1) waiver, undue hardship, or undue hardship based on care given will be granted per estate.
A.Application process: A person applying to the Department for consideration of an undue hardship waiver ("the applicant") must comply with the following: 1. An applicant must file an application on a form prescribed by the Department; and 2. The request for an undue hardship waiver must be made within six (6) months from the Member's death or within sixty (60) days from the notice of the Department's claim, whichever is later; and3. The applicant must be either the son or daughter of the Member or an adult aged eighteen (18) or older; and4. The Department may require the applicant to submit any information and documentation regarding the applicant's and all household Member's finances, tax returns, property, employment, liabilities, expenses, and any other matters relevant and necessary to determine whether an undue hardship would result from recovery. If the information requested by the Department is not provided within sixty (60) days of the written request of the Department, or if the request is materially incomplete the request for an undue hardship waiver may be denied; and 5. The applicant must prove that they have a beneficial interest in the estate: a. through a legal right to the property of the estate through a will;b. through the law of intestate succession; or c. must establish to the Department's satisfaction by providing written documentation that the applicant:i. cohabitated with the Member for the five consecutive years prior to the Member's most recent eligibility for MaineCare benefits; ii. provided significant support for the household and to maintain property in the estate during that time; and iii. along with the Member held themselves out to the public as married or in a civil union; and 6. Should the applicant's beneficial interest in the estate be less than 100%, the Department must reduce the undue hardship waiver, if granted, to meet the applicant's beneficial interest; and 7. If the applicant is securing agreement from other heirs to increase their legal interest in the estate, the applicant must do so through irrevocable assignment by the other heirs; and 8. For all applicants claiming a beneficial interest in the estate, if the asset of concern to the applicant is the decedent's home, the applicant must prove that the home was the applicant's primary residence for two or more years immediately prior to the death of the MaineCare recipient, that the applicant's contribution to the upkeep of the house was significant, and that it was the understanding and belief of both the MaineCare recipient and the applicant that this was the home of both the applicant and the MaineCare recipient; and 9. Only one waiver application per estate may be submitted to the Department. The applicant may only request one type of waiver per application; and 10. The Department shall determine whether an undue hardship exists within ninety (90) days from the date of the receipt of all information requested. Appropriate notice of the decision will be sent to the person making the request. All decisions regarding the undue hardship waiver will be provided in writing and provide an explanation if the application is denied. The written decision must also provide information about how to appeal the denial to the Department's Administrative Hearings Unit.B.Limitations on waiver requests: An undue hardship does not exist if any of the following are present: 1. The decedent or applicant created the undue hardship by using estate planning, gifting or other methods to divert or shelter assets to avoid estate recovery; or 2. The circumstances indicate that the undue hardship was created for the purposes of avoiding or defeating recovery, including, but not limited to, undue influence on the decedent by the applicant or other family Members; 3. The sole basis for the request is lack of income pursuant to section 5.08(a)(1)(b) below and sale of the real property in the estate will net the applicant more than $10,000.00. In determining whether the sale of real property will net the applicant more than $10,000.00, the Department may establish the value of the real property based upon: a. Municipal Tax valuation;b. An appraisal report issued within the past year;c. Real Estate professional's estimate of fair market value;d. Sales history for the real estate; ore. Other information establishing a fair market value for the real property. C.M.R. 10, 144, ch. 101, ch. VII, 144-101-VII-5, subsec. 144-101-VII-5.07