Current through August, 2024
(a) A penalty period may be waived if the
department determines that the imposition of the penalty will cause undue
hardship for the individual.
(b)
Undue hardship exists if the application of a penalty period would deprive the
individual of:
(1) Medical care such that the
individual's life or health would be endangered; or
(2) Food, clothing, shelter, or other
necessities of life.
(c)
A waiver of a penalty period due to undue hardship may be granted if the
individual provides satisfactory evidence to the department that the asset
transferred:
(1) Has been depleted below the
resource standard specified in section 17-1725.1-43;
(2) Has been converted to another asset that
is not liquid or redeemable;
(3)
The return of the transferred assets would put the receiving party in serious
deprivation such that the loss of income or the asset would qualify the
receiving party for medical assistance;
(4) The receiving party cannot be located by
the individual or another including but not limited to the individual's spouse,
other family member, representative, or an agent of the nursing facility, after
all attempts to locate the receiving party have been exhausted; or
(5) The asset was transferred due to theft,
fraud, or financial exploitation upon the individual or their community
spouse.
(d) The process
for requesting and reviewing a waiver of a penalty period imposed for a
transfer of asset due to undue hardship is as follows:
(1) The department shall send the individual
a notice of denial or a notice of adverse action according to the requirements
of chapter 17-1713.1 to inform the individual of the establishment of the
penalty period and the individual's right to request a hardship
waiver.
(2) The individual shall
have twenty calendar days from the mailing of the notice of denial or adverse
action as specified in paragraph (1) to request a hardship waiver and provide
all documentation to support the basis of a hardship waiver request.
(3) The department shall make a determination
to grant a hardship waiver within ten business days after receiving the waiver
request and supporting documentation.
(4) An individual who is denied a hardship
waiver shall be informed of the enforcement date of the penalty period and the
right to request a fair hearing under chapter 171703.1.
(e) Nursing facilities may request a hardship
waiver on behalf of their resident with the written consent of the resident or
the resident's personal representative and may represent the resident or the
resident's personal representative throughout the appeals process.
