A claim under 5.03(B) may be waived if enforcement of the
claim would cause an undue hardship for the person, providing that the person
holds a beneficial interest in the Member's estate, as defined in this Section,
and properly requests a hardship waiver. An applicant may request an undue
hardship waiver because the applicant is reliant upon the assets of the estate
or an undue hardship waiver based upon care given to the Member. The specific
requirements for each type of waiver are set forth below. To qualify for a
waiver, a person who is not a son or daughter of the deceased member must also
be an adult, aged eighteen (18) or over. If a determination is made that an
undue hardship exists, the Department may waive all or a portion of its
claim.
Only one (1) waiver, undue hardship, or undue hardship
based on care given will be granted per estate.
A.
Application process: A person
applying to the Department for consideration of an undue hardship waiver ("the
applicant") must comply with the following:
1. An applicant must file an application on a
form prescribed by the Department; and
2. The request for an undue hardship waiver
must be made within six (6) months from the Member's death or within sixty (60)
days from the notice of the Department's claim, whichever is later;
and
3. The applicant must be either
the son or daughter of the Member or an adult aged eighteen (18) or older;
and
4. The Department may require
the applicant to submit any information and documentation regarding the
applicant's and all household Member's finances, tax returns, property,
employment, liabilities, expenses, and any other matters relevant and necessary
to determine whether an undue hardship would result from recovery. If the
information requested by the Department is not provided within sixty (60) days
of the written request of the Department, or if the request is materially
incomplete the request for an undue hardship waiver may be denied; and
5. The applicant must prove that
they have a beneficial interest in the estate:
a. through a legal right to the property of
the estate through a will;
b.
through the law of intestate succession; or c. must establish to the
Department's satisfaction by providing written documentation that the
applicant:
i. cohabitated with the Member for
the five consecutive years prior to the Member's most recent eligibility for
MaineCare benefits;
ii. provided
significant support for the household and to maintain property in the estate
during that time; and
iii. along
with the Member held themselves out to the public as married or in a civil
union; and
6. Should the applicant's beneficial interest
in the estate be less than 100%, the Department must reduce the undue hardship
waiver, if granted, to meet the applicant's beneficial interest; and
7. If the applicant is securing agreement
from other heirs to increase their legal interest in the estate, the applicant
must do so through irrevocable assignment by the other heirs; and
8. For all applicants claiming a beneficial
interest in the estate, if the asset of concern to the applicant is the
decedent's home, the applicant must prove that the home was the applicant's
primary residence for two or more years immediately prior to the death of the
MaineCare recipient, that the applicant's contribution to the upkeep of the
house was significant, and that it was the understanding and belief of both the
MaineCare recipient and the applicant that this was the home of both the
applicant and the MaineCare recipient; and
9. Only one waiver application per estate may
be submitted to the Department. The applicant may only request one type of
waiver per application; and
10.
The Department shall determine whether an undue hardship exists within ninety
(90) days from the date of the receipt of all information requested.
Appropriate notice of the decision will be sent to the person making the
request. All decisions regarding the undue hardship waiver will be provided in
writing and provide an explanation if the application is denied. The written
decision must also provide information about how to appeal the denial to the
Department's Administrative Hearings Unit.
B.
Limitations on waiver
requests: An undue hardship does not exist if any of the following are
present:
1. The decedent or applicant created
the undue hardship by using estate planning, gifting or other methods to divert
or shelter assets to avoid estate recovery; or
2. The circumstances indicate that the undue
hardship was created for the purposes of avoiding or defeating recovery,
including, but not limited to, undue influence on the decedent by the applicant
or other family Members;
3. The
sole basis for the request is lack of income pursuant to section
5.08(a)(1)(b)
below and sale of the real property in the estate will net the applicant more
than $10,000.00. In determining whether the sale of real property will net the
applicant more than $10,000.00, the Department may establish the value of the
real property based upon:
a. Municipal Tax
valuation;
b. An appraisal report
issued within the past year;
c.
Real Estate professional's estimate of fair market value;
d. Sales history for the real estate;
or
e. Other information establishing
a fair market value for the real property.
