Current through Reg. 49, No. 38; September 20, 2024
(a) The Medicaid
Estate Recovery Program (MERP) will not recover from estates if recovery would
cause undue hardship. An undue hardship waiver request form will be provided
with the MERP Notice of Intent to File a Claim, and undue hardship waiver
requests must be made within 60 days of the date of the MERP Notice of Intent
to File a Claim.
(b) An undue
hardship does not exist solely because:
(1)
Recovery would prevent heirs or legatees from receiving an anticipated
inheritance; or
(2) The
circumstances giving rise to the hardship were created by, or are the result
of, estate planning methods under which assets were sheltered or divested
contrary to the requirements of Medicaid law in order to avoid estate
recovery.
(c) Undue
hardship waivers include:
(1) The estate
property subject to recovery has been the site of the operation of a family
business, farm, or ranch at that location for at least 12 months prior to the
death of the decedent; is the primary income producing asset of heirs and
legatees, and produces 50 percent or more of their livelihood; and recovery by
the State would affect the property and result in the heirs or legatees losing
their primary source of income;
(2)
Heirs and legatees would become eligible for public and/or medical assistance
if a recovery claim were made;
(3)
Allowing one or more survivors to receive the estate will enable him or her or
them to discontinue eligibility for public and/or medical assistance;
(4) The Medicaid recipient received medical
assistance as the result of a crime, as defined by Texas law, committed against
the recipient; or
(5) Other
compelling reasons.
(d)
Undue Hardship Waivers Applicable to Homesteads After receiving a Medicaid
estate recovery claim, an heir may assert that recovery against a deceased
Medicaid recipient's homestead would be an undue hardship and that the
homestead should therefore be exempt from recovery for the cost of Medicaid
long-term care services. The Health and Human Services Commission will exempt a
decedent's home from estate recovery based on undue hardship when the following
conditions have been established to the Commission's satisfaction:
(1) The tax appraisal district value of the
homestead is less than $100,000. If the tax appraisal district value of the
homestead exceeds this amount, the first $100,000 of the tax appraisal district
value for the most recent tax year at the time of the recipients' death shall
be exempt from estate recovery. Any equity value of the tax appraisal district
value for the most recent tax year at the time of the recipients' death in
excess of $100,000 is subject to estate recovery.
(2) One or more siblings or direct
descendents of the deceased person (lineal heir(s), such as children and
grandchildren) will inherit the homestead of the deceased Medicaid recipient,
provided that each sibling or lineal heir inheriting the homestead has gross
family income below 300 percent of the Federal Poverty Level.
(3) When there are multiple heirs and not all
heirs qualify for the hardship waiver, only that percentage of the homestead
that corresponds to the qualifying heir or heirs' share of the homestead will
be exempt from Medicaid estate recovery.
(4) "300 percent of the federal poverty
level" is a gross income test; no exclusions or deductions are
allowed.
(5) "Family" means that
the Health and Human Services Commission will consider each heir separately.
Heirs will not be aggregated into one family unless the heirs are minor
children who are siblings. In the case of the adult heir, his or her family
will be limited to the heir, the heir's spouse, and the heir's biological or
legally adopted minor children and stepchildren residing in the household. In
the case of the heir who is a minor, the heir's family will be the heir, his or
her parent(s) or stepparent residing in the household, and the heir's minor
siblings residing in the household, including half-, step-, and legally adopted
siblings.
Attached
Graphic
(e) HHSC has exclusive authority to waive its
Medicaid estate recovery claim and grant undue hardship waivers as determined
by the Medicaid Estate Recovery Program (MERP) program on an individual
case-by-case basis. An undue hardship waiver determination will be made by MERP
within 40 days of the receipt of an undue hardship waiver request form and all
required necessary supporting documents by MERP.
(f) Undue hardship waiver request forms must
be submitted to the following address: MERP, Hardship Waiver Request, P.O. Box
13247, Austin, Texas 78711.
