Section 144-336-9 - HARDSHIP WAIVERSThe Department may waive a transfer penalty under this Chapter where the transfer penalty would impose an undue hardship on the penalized individual. It is the responsibility of the individual to prove the claim of undue hardship.
I. Determine if undue hardship exists. An undue hardship exists if this denial would: A. deprive the individual of medical care such that the individual's health or life would be threatened; orB. deprive the individual of food, clothing, shelter, or other needs of life.II. Determine whether to waive the penalty when undue hardship exists. The penalty can be waived if: A. the individual was exploited as assessed by the Department of Health and Human Services Adult Protective Services; orB. the individual--- 1. Can prove all of the following: a. Neither the individual nor the spouse have the means to pay for room & board and medical costs incurred while meeting the medically needy deductible without State-Funded Assistance, taking into consideration all exempt and non-exempt income and assets.b. The recipient of the transferred asset is unable or unwilling to make the value of the transfer or any part of it available to pay for the individual's cost of room & board and medical costs incurred while meeting the medically needy deductible.c. The individual has made all reasonable efforts to recover the transferred asset or its equivalent value. The individual must cooperate with the Department in any recovery activity that is undertaken. AND
2. The individual must agree in writing that if the transferred assets or equivalent value are recovered, the individual will reimburse the Department for funds expended as a result of the approved claim of undue hardship. III. The result of being denied State-Funded Assistance, by itself, is not considered undue hardship.IV. The Department will use the following process for undue hardship determinations:A. All denials/closures due to a transfer of assets will include a written notice that an "undue hardship" provision exists and can be considered according to the criteria indicated above if the applicant/recipient requests it.B. A claim of undue hardship must be made no later than thirty days from the date of the denial/closure notice. With the individual's written permission, an authorized representative or the facility in which the individual resides can claim undue hardship on the individual's behalf.C. A decision on a claim of undue hardship will be made and the applicant notified in writing within thirty days of the claim being made.D. An appeal from any adverse action including a denial of a claim of undue hardship must be made within thirty days of the notice of denial. Applicants/recipients will be given written notice of this right to a hearing.E. In sub-section II.B.1. a. above, the Department will not use income and assets provided to the community spouse to prevent impoverishment in determining whether the individual or the spouse have the means to pay the cost of room & board and medical costs incurred while meeting the medically needy deductible.10- 144 C.M.R. ch. 336, § 9