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Effective: June 1, 2011 |
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19.40.40ar3 - Waiver of Transfer Penalty (Archive) |
Archived: November 1, 2011 |
This section describes how and when a transfer penalty can be waived. This is known as a Transfer Penalty Waiver or Hardship Waiver.
Steps for Determining Transfer Penalty Waiver.
The penalty for an uncompensated transfer is waived when the denial of MA payment for LTC services would cause undue hardship for the person based on imminent threat to the person's health and well-being.
Imminent threat to health and well-being means both of the following are met:
l There are no alternatives for payment for LTC services.
l The person's health and well-being would be in immediate danger if the person loses MA payment for LTC services.
The client must provide evidence that:
l reasonable efforts to recover the transferred assets or income have been made; and
l the client’s health and well-being are threatened; and
l there are no alternatives to pay for LTC services.
Steps for Determining the Transfer Penalty Waiver
1. Send a notice to clients denied MA payment of LTC services because of an uncompensated transfer.
The notice must inform the client:
n of the right to request a waiver of the transfer penalty due to undue hardship, and
n that a cause of action could be brought against the person who received the transfer if the transfer penalty waiver is granted.
Note: The MAXIS notice does not include language regarding the cause of action. When denying MA payment of LTC services because of a transfer penalty due to an uncompensated transfer notify the client that a cause of action may be brought against the person who received the transferred asset.
2. Accept a written request for an undue hardship waiver from the client, the client's representative or the long-term care facility (LTCF) where the client resides.
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.
3. Determine if a hardship waiver should be granted within 30 days of receipt of a written request for an undue hardship waiver from the client, the client's representative or the LTCF. Do not grant a waiver without a written request.
4. Determine which months of the transfer penalty must be waived to eliminate the threat to the client’s health and well-being.
Note: Do not grant a waiver of the transfer penalty for months in which the LTCF has been paid in full.
5. If a hardship waiver is granted:
n send the client a notice stating:
m the waiver is granted and MA payment of LTC services is approved as of a specified date.
m the person who received the transferred income or assets may be sued by the county.
Note: The MAXIS notice does not include language regarding actions the county may take. When denying MA payment of LTC services because of a transfer penalty due to an uncompensated transfer notify the client that a cause of action may be brought against the person who received the transferred asset.
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.
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.
6. If a hardship waiver is denied, send the client a notice containing the client's right to appeal the decision.