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Effective: December 1, 2006 |
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19.40.40ar1 - Waiver of Transfer Penalty (Archive) |
Archived: July 1, 2010 |
Steps for Determining Transfer Penalty Waiver.
There are no transfer provisions for MCRE or GHO.
There are no provisions for the waiver of transfer penalties for GAMC.
The penalty for an improper transfer may be waived if:
l The client, the client's representative or the long term care facility (LTCF) requests a waiver in writing.
n Do not assume that all clients would automatically choose an undue hardship waiver.
n Waivers requested by an LTCF, must be accompanied by:
m A signed statement from the client or the client’s representative acknowledging approval of the request.
m A General Authorization for Release of Information (DHS-2243A) signed by the client or the client’s representative in order for the LTCF to discuss the client’s situation with the worker.
l The denial of MA payment for LTC or Waiver services would cause undue hardship for the person based on imminent threat to the person's health and well-being.
n Imminent threat to health and well-being means both of the following are met:
m There are no alternatives for payment for LTC or Waiver services.
m The person's health and well being would be in immediate danger if the person loses MA payment for LTC or Waiver services.
n See Transfers for a list of services that are not covered due to improper asset transfer.
l The client has made reasonable efforts to recover the transferred assets.
Steps for Determining the Transfer Penalty Waiver
1. Send a notice to clients denied MA payment of LTC or Waiver services because of an improper transfer to inform them of the right to request the waiver of the penalty due to undue hardship.
Note: The notice must also inform the client that a cause of action could be brought against the person who received the transfer if the transfer penalty waiver is granted.
2. Upon written request for a waiver from the client, the client's representative or the LTCF, review all facts and determine if a waiver should be granted. You cannot grant a waiver without a written request.
Grant a waiver if there is the likelihood of imminent, serious harm occurring and one of the following is met:
n The person was the victim of financial exploitation.
n The person has made reasonable efforts to recover the transferred income or asset.
3. If a waiver is granted.
n Send the client a notice stating:
m The waiver is granted and MA payment of LTC or Waiver services is approved as of a specified date.
m The person who received the transfer may be sued by the county.
n Refer the matter to the county attorney to determine whether a cause of action should be filed against the person who received the transferred assets, in order to recover the value of assets that have not been returned. To recover the value of the assets transferred, the county attorney must file a cause of action against the person who received the assets.
4. If a waiver is denied, send the client a notice containing the client's right to appeal the decision.
Example:
Brad was approved for MA-LTC in February. In August, he received an inheritance of $50,000 from a deceased relative, and gave the funds away to his children in order to maintain MA eligibility. The transfer is reported the following January.
Action:
1. Brad’s worker sends a notice to Brad stating that he is ineligible for MA LTC services due to a penalty for an improper transfer. The notice states that he may request a waiver of the transfer penalty.
2. Brad sends a written request to his worker stating that the children claim to have spent the funds and that if his LTC services are denied he would be forced out of the facility with no where to go.
3. Brad’s worker realizes that Brad is in imminent danger. He approves the waiver of the transfer penalty and Brad will continue to have his LTC services paid by MA.
Brad’s worker also refers the case to the county attorney. The county attorney may bring a cause of action against the children to recover the MA-LTC payments already made, and to be made during the ineligibility (penalty) period.