(Revised 1/1/08 ML #3120)
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(N.D.A.C. 75-02-02.1-33.1 and 75-02-02.1-33.2)
A disqualifying transfer penalty period is not imposed on an individual to the extent the individual makes a satisfactory showing that an undue hardship exists for the individual.
Upon imposition of a penalty period because of a transfer of assets or income, an individual must be provided notification of the right to request an undue hardship exception. An individual may apply for an exception to the transfer of asset penalty if the individual claims that the penalty period will cause an undue hardship to the individual and provides sufficient documentation to support that claim within 90 days of notification of the transfer penalty, or within 90 days after the circumstances upon which the claim of hardship is made known, or reasonably should have been known, to the affected individual or the person acting on behalf of the individual if incompetent.
The facility in which the person resides may apply for an exception to the transfer penalty on behalf of the individual if they have the individual’s, or the individual's personal representative’s, consent.
Requests for undue hardship exceptions must be submitted to the Medicaid Eligibility Unit. Upon receipt of a request for a hardship exception, the Medicaid Eligibility Unit will determine whether an undue hardship exists. The determination of the hardship made by the Medicaid Eligibility Unit will state the date upon which the hardship exception begins, and, if applicable, when it ends.
An undue hardship exists only if the individual shows that all of the following conditions are met:
Application of the penalty period would deprive the individual of food, clothing, shelter, or other necessities of life, or medical care such that the individual’s health or life would be endangered;
The individual, the individual's spouse, or anyone acting on behalf of either, has not made the transfer after a previous request for a hardship exception;
The individual who transferred the assets or income, or on whose behalf the assets or income were transferred, has exhausted all lawful means to recover the transferred assets or income, or the value of the transferred assets or income, from the transferee, a fiduciary, or any insuror;
A person who would otherwise provide care would have no cause of action, or has exhausted all causes of action, against the transferee of the assets or income of the individual or the individual’s spouse under North Dakota Century Code chapter 13-02.1, the Uniform Fraudulent Transfers Act, or any substantially similar law of another jurisdiction; and
The individual’s remaining available assets, and the remaining assets of the individual’s spouse, if any, are less than the asset limit applicable to a Medicaid eligible unit that would include the individual, the individual’s spouse, if any, and the individual’s minor children, if any, counting the value of all assets except:
The home, but not if the individual, or the individual's spouse, if any, have equity in the home in excess of $125,000;
Exempt personal effects, wearing apparel, household goods, and furniture;
One motor vehicle, if the primary use of the vehicle is to serve the needs of members of the Medicaid unit; and
Funds for burial of $5,000 or less for the individual and the individual's spouse.
If a request for an undue hardship exception is denied, the applicant or recipient may request an appeal to the North Dakota Department of Human Services.
A hardship determination approved by the Medicaid eligibility unit, or through the appeal process, may be terminated, or adjusted if;
New information is received that would have affected the original determination;
Circumstances change;
The individual, the individual's spouse, or anyone with authority to transfer income or assets of the individual or the individual's spouse, makes a subsequent transfer of income or assets; or
The individual, the individual's spouse, or anyone with authority to manage the income or assets of the individual or the individual's spouse, converts any income or assets to a form that is exempt or excluded.
