19.40.40 Waiver of Transfer Penalty

*** The Health Care Programs Manual (HCPM) has been replaced by the Minnesota Health Care Programs Eligibility Policy Manual (EPM) as of June 1, 2016. Please refer to the EPM for current health care program policy information. ***

Waiver of Transfer Penalty

An agency must waive a transfer penalty if there is an imminent threat to the client’s health and well-being. Imminent threat to the client’s health and well-being means that imposing a transfer penalty would endanger the client’s health or life or cause serious deprivation of food, clothing or shelter because there are no other alternatives for payment of the client’s long-term care (LTC) services.

Standard guidelines require a worker to send a notice to a client whenever the agency has determined the client is ineligible for MA payment of LTC services due to a transfer penalty. The notice must inform the client of his or her right to request a waiver of the transfer penalty if it will cause an undue hardship.

l The long-term care facility (LTCF) in which the client resides, if applicable. In order to accept a request from an LTCF, the request must include a signed statement from the client or the client’s authorized representative acknowledging approval of the request.

Note: An LTCF’s role is limited to requesting a waiver of a transfer penalty on behalf of the client. Once an agency receives a request, it must work with the client or the client’s authorized representative to obtain the information needed to make a determination. Do not share information with the LTCF regarding the determination unless the client or the client’s authorized representative gives the agency written permission.

The request to waive a transfer penalty received from a client or the client’s authorized representative can be verbal or written. A request from an LTCF must be in writing since a signed statement must accompany it.

Request the information needed to make the determination from the client or the client’s authorized representative if the agency receives a request to waive a transfer penalty. An agency may use the Hardship Waiver Request for Information (DHS-6364) or another agency developed form for this purpose.

Grant a hardship waiver of a transfer penalty if the client provides convincing evidence that shows all of the following:

A client who resides in an LTCF has an imminent threat to his or her health and well-being when all of the following conditions exist:

n The location to which the LTCF will discharge/transfer the client would endanger the client’s health or life or cause serious deprivation of food, clothing or shelter.

An LTCF is required to include the reason for the discharge/transfer as well as the location to which it will discharge/transfer the client in its 30-day notice. The client or the client’s authorized representative can support his or her claim of imminent threat by providing a copy of the 30-day discharge/transfer notice and proof that the location to which the LTCF will discharge/transfer the client will endanger the client’s health or life or cause serious deprivation of food, clothing or shelter.

Deny a waiver request when there is no imminent threat. There is no imminent threat in situations where:

n The client has not received a 30-day notice of discharge/transfer from the LTCF.

n The reason for discharge/transfer from the LTCF is something other than non-payment.

n The client files a timely appeal of the discharge/transfer from the LTCF. When a client files an appeal timely, the LTCF cannot discharge/transfer the client until resolution of the appeal. Contact the LTCF to determine if the client filed a timely appeal.

Do not automatically assume imminent threat exists if the LTCF will discharge/transfer the client into the community. The client or the client’s authorized representative must provide convincing evidence that the community location would endanger the client’s health or life or cause serious deprivation of food, clothing or shelter.

A client who resides in the community has an imminent threat to his or her health and well-being when the client or the client’s authorized representative provides convincing evidence that the client’s health and well-being is in immediate danger because he or she can no longer receive services through a home and community-based waiver program, cannot access other community supports, and is unable to move to an LTCF because he or she is ineligible for MA payment for LTC services.

The client or the client’s authorized representative must provide proof that there are no other alternatives for payment of his or her LTC services that will resolve the imminent threat. This requires proof of the dollar amount of LTC services needed to resolve the imminent threat.

l Has the client or the client’s authorized representative made a reasonable attempt to recover transferred assets?

At a minimum, the client or the client’s authorized representative must document that he or she has asked the transferee(s) to return the transferred assets and provide the response received from the transferee(s), if available.

Determine if the client can recover the transferred assets through legal action. Generally, there is not a cause of action to recover transferred assets if the transfer was a gift. However, there may be situations in which the client may be able to recover the transferred assets through legal action. This may require the agency to seek advice from its attorney.

If there is legal recourse to recover the transferred funds, the client or the client’s authorized representative must provide proof that he or she has taken the legal action. The client must take legal action to try to recover the transferred assets unless the client or the client’s authorized representative provides proof that the client cannot afford to take the action or the cost of taking the action is more than the value of the transferred assets.

Do not delay a determination on a waiver request pending the resolution of the legal action. If the agency grants a waiver in this situation, track the case for the result of the legal action.

l Does the client have income or liquid assets that can resolve the imminent threat?

Evaluate all income and liquid assets available to the client. Income and assets that a worker excludes for MA eligibility purposes are considered available when determining if the client has access to income or assets that can resolve the imminent threat.

l If the client is married, does the client’s spouse have income or liquid assets that can resolve the imminent threat?

Spouses are responsible for their spouse’s medical expenses. Income and assets that a worker determines available to a spouse as part of an income allocation or as part of the community spouse asset allowance are considered available to the client when determining if the client has access to income or assets that can resolve the imminent threat.

l Can the client or the client’s spouse obtain income or liquid assets to resolve the imminent threat?

A client or the client’s spouse may not currently have enough income or liquid assets to resolve the imminent threat, but he or she may be able to obtain it in time to resolve the imminent threat. For example, a client or his or her spouse may be able to convert a non-liquid asset to a liquid asset, such as selling a vehicle or obtaining a reverse mortgage on a homestead.

l Can the client access services through another source to resolve the imminent threat?

There are a number of community supports available to a client besides MA payment of LTC services. The client or the client’s authorized representative must provide proof that the community supports available to the client do not meet his or her health and well-being needs and that MA payment of LTC services is required to resolve the imminent threat.

The client or the client’s authorized representative can support his or her claim of imminent threat by providing a copy of his or her community support plan and other evidence that the client needs MA payment of LTC services to resolve the imminent threat. A client receives a community support plan when he or she receives a long-term care consultation (LTCC). During an LTCC a certified assessor determines the client’s level of care needs and identifies the services/supports that are available to the client that can meet his or her level of care requirements. Follow-up with the certified assessor if it is unclear if a community support plan remains valid or if clarification is needed on whether the client can meet his or her health and well-being needs without MA payment of LTC services. A release of information is not required for agencies to speak with the certified assessor.

Determining if a Waiver of the Transfer Penalty Will Resolve the Imminent Threat

A client must provide convincing evidence that waiver of the transfer penalty will resolve the imminent threat to his or her health and well-being. Do not approve a waiver if MA payment of LTC services does not resolve the imminent threat.

Make a decision as soon as possible once all of the information needed to make the determination is received. The maximum amount of time allowed to make a determination is 30 calendar days from the date all of the information needed is received.

Send a notice informing the client of the denial if the waiver request is denied. The notice must include the client’s right to appeal the decision.

Send a notice informing the client of the approval if the waiver request is approved. The notice must include the effective date of the approval. Refer the matter to the agency’s attorney to determine if the agency should file a cause of action against the person(s) who received the transferred assets.

The effective date of the approval is the first day of the month in which MA payment of LTC services resolves the imminent threat. This can vary based on the client’s situation. Do not approve a waiver for a month in which the client or another party has paid for the client’s LTC services.

The Notice of Action for Medical Assistance (MA) Payment of Long-Term Care Services (DHS-4915) can be used for both denials and approvals. Follow standard guidelines on when to use this form.

Chapter 19 - Assets	Effective: November 1, 2011
19.40.40 - Waiver of Transfer Penalty	Archived: June 1, 2016 (Previous Versions)