DHS will waive its claim in cases when it has been determined that undue hardship exists. Undue hardship will be considered to exist if the individual who is requesting the undue hardship waiver meets all requirements listed below:
The individual has continuously resided in the primary residence of the decedent for at least two years immediately preceding the decedent's receipt of MA LTC.
The individual has no other alternative permanent residence.
The individual has provided care or support to the decedent for at least two years during the period of time that MA LTC was received by the decedent, or for at least two years prior to the decedent's receipt of MA LTC during which time the decedent needed care or support to remain at home.
DHS will determine undue hardship exists and will permanently waive its claim with respect to an income-producing asset if a spouse, child, parent, sibling or grandchild of the decedent meets both of the following:
The asset is used to generate the primary source of income for the household.
There would be a gross family income of less than 250% of the Federal poverty guideline without use of the asset.
DHS will find undue hardship and will permanently waive from the amount of DHS's recovery, an amount equal to the necessary and reasonable expenses for maintaining the decedent's home while the decedent was receiving HCBS or maintaining decedent's vacant home while the decedent was in an LTC facility. Necessary and reasonable expenses for maintaining the home include real estate taxes, utility bills, home repairs and home maintenance such as lawn care and snow removal necessary to keep the property in condition for the decedent to return home or to sell at fair market value. Creditors are not eligible to request a waiver under this subsection.
DHS will find undue hardship and will permanently waive its claim for administered estates with a gross value of $2,400 or less, if there is an heir.
A spouse, parent, child or sibling of the decedent who receives a postponement of collection in accordance with section 495.51 of this chapter (relating to postponement of collection) is not precluded from receiving an undue hardship waiver if the criteria listed above are met. DHS has exclusive authority to waive its claim, compromise its claim, or postpone collection, in other circumstances when undue hardship exists, or when collection is not cost-effective, as determined by DHS on an individual case-by-case basis.
DHS will postpone its claim until the last of the following occurs:
The death of any surviving spouse.
The death of any child who is blind or totally and permanently disabled.
The date that any surviving child is 21 years of age.
The death of, property transfer of, or vacating of a property by a sibling who has an equity interest in the property and who has been living in the home for at least one year prior to the decedent's death.
No interest will be charged on the Department's claim during a postponement period.
A spouse, adult child, or legal representative of a child under 18 years of age can waive postponement of a claim.
Any personal representative, transferee, or family member who feels that he or she has been adversely affected by a DHS decision regarding estate recovery may appeal to the Department's Division of Third Party Liability within 30 days of having been notified of the decision. Third Party Liability will then forward the appeal to the Bureau of Hearings and Appeals. See Chapter 495.6 Contact Information.
Issued May 1, 2012