5725 Hardship - A transfer of property penalty period may be waived if denial of LTC medical assistance creates an undue hardship on the individual. Undue hardship is only applicable to financially and medically needy individuals with no possible means of recovering the transferred property. Both financial and basic needs (including medical) must be demonstrated in each hardship claim. Undue hardship exists only if the individual can demonstrate actual, not merely probable hardship

Undue hardship does not exist when application of the transfer penalty causes the individual inconvenience or might restrict his or her lifestyle. It must put the individual in serious risk of deprivation. Undue hardship does not exist when the community spouse refuses to make property available.

Undue hardship exists in instances where an individual who would otherwise be eligible for medical assistance has demonstrated financial hardship through a suitable recovery effort and application of the transfer penalty period would deprive the individual of:
 

1. medical care such that the individual's health or life would be endangered; or
    
2. food, clothing, shelter, or other necessities of life.  

5725.1 Evidence to Support a Claim of Undue Hardship - The individual must supply evidence to support the claim of undue hardship. Evidence must be presented to support both financial and medical hardship claims. The evidence should be directly related to the claim of undue hardship and may be of any form (e.g. legal documents, medical reports, etc). The circumstances surrounding the transfer shall also be considered.

1. Financial Hardship - The individual must demonstrate that an effort has been made to make resources available to pay for his or her care. Hardship may be demonstrated by documentation of one or more events in the following list. Comparable reasons may also be considered, but considerable documentation is necessary.
    
   1. The individual has demonstrated that all reasonable efforts to meet his or her needs from other available sources have been exhausted. Such efforts include using available exempt and non-exempt assets in which the individual currently has access, unless such use would put the individual or another blind, disabled or deprived individual at serious risk.
      
      For example, the individual would not be expected to sell a modest home in which he and his disabled son lived. He would also not be expected to sell necessary medical equipment or a,vehicle required for employment.
       
   2. All reasonable means have been made by the individual to regain ownership of the transferred property or to receive full compensation for the property, or the individual demonstrates that efforts to do so would likely be unsuccessful or would not be cost effective.
       
   3. If funds can be made available only by selling assets which would deprive the individual, or another individual of a significant income source, which would put such individual at risk of receiving public benefits. Such risk must be demonstrated by the individual and must be substantiated by an individual certified to determine benefits for such public benefits. This does not apply if the asset being excepted is the asset transferred.
       
   4. The individual cannot recover the assets due to loss, destruction or other extraordinary circumstances.
       
   5. Neither the individual nor the community spouse have sufficient non-exempt assets to pay for the essential care. This would include those amounts otherwise protected for the individual under the allowable resource limit. For situations where a community spouse exists, the community spouse resources, including those protected under Spousal Impoverishment provisions, are considered on a case by case basis depending on his or her needs as well as the amount of assets owned by the community spouse.
       
2. Medical or Deprivation Hardship - The individual must demonstrate that he or she would be deprived of medical care, food, shelter or other necessities of life. Hardship may be demonstrated by documentation of one or more events in the following list. Comparable reasons may also be considered, but considerable documentation is necessary.
    
   1. The institutional provider has initiated discharge proceedings or termination of services, or has refused to admit the individual or approve services due to non-payment or the inability to pay.
       
   2. A treating physician certifies that the immediate adverse impact of the denial of the essential institutional or alternative community based services would put the individual at risk of death or permanent disability.
       
   3. The individual has demonstrated that no less costly long term care alternatives are available.

5725.2 Notification and Request for Undue Hardship - The individual shall be notified of the right to request an undue hardship exception upon notification of the transfer disqualification. The claim of undue hardship must be made in writing to the agency and may be made anytime during the penalty period. The claim must identify the circumstances surrounding the transfer with an explanation as to why an undue hardship exception should be granted.

The facility in which the individual resides may assert a claim of undue hardship for the individual and provide supporting information on behalf of the individual if written consent to do so has been obtained from the individual or the individual's personal representative.

5725.3 Decision Regarding Undue Hardship -  KDHE-DHCF policy staff is responsible for rendering the decision regarding undue hardship. The agency shall respond to the individual in writing with a decision within 30 calendar days from the date of receipt of the request.

If the undue hardship claim is granted, the transfer of property penalty shall be waived only to the extent necessary to prevent the potential or continued deprivation of institutional services. A complete determination of medical assistance for those services would then be completed.

If the undue hardship claim is denied, the individual, or the facility acting in the individual's behalf, retains fair hearing rights (see 1610).

5725.4 Effective Date of Undue Hardship - The effective date of a hardship finding is directly tied to the request for LTC medical assistance and the subsequent request for Hardship. Where hardship is found to exist, the effective date may be no earlier than the third month prior to the month of the request for LTC medical coverage. In addition, for institutionalized persons, the effective date can be no earlier than the first day of the month an eviction notice is issued.

However, each case shall be evaluated to determine when such events or other significant actions occurred in establishing the most appropriate effective date of the hardship finding. Documentation is required.