Probate & Trust Law Section Conference Manual ... - Minnesota CLE

C. UNDUE HARDSHIP WAIVERS
1. As transfer penalties become more difficult to avoid or minimize, the
possibility of obtaining a hardship waiver has become much more
important.
2. DRA '05 clarified the requirement that States make hardship waivers
available to applicants who have made uncompensated transfers during the
look-back period. 42 U.S.C. § 1396p(d), after amendment by DRA '05,
now reads as follows:
(d) Availability of Hardship Waivers--Each State shall
provide for a hardship waiver process in accordance with
section 1917(c)(2)(D) of the Social Security Act (42 U.S.C.
1396p(c)(2)(D)--
(1) under which an undue hardship exists when application
of the transfer of assets provision would deprive the
individual--
(A) of medical care such that the individual's
health or life would be endangered; or
(B) of food, clothing, shelter, or other
necessities of life; and
(2) which provides
for--
(A) notice to recipients that an undue
hardship exception exists;
(B) a timely process for determining whether
an undue hardship waiver will be granted;
and
(C) a process under which an adverse
determination can be appealed. 34
3. The federal requirement was implemented by amendments to Minn. Stat. §
256B.0595, subd. 4, clause (5).
4. DRA '05 also included provisions which allow nursing homes, for the first
time, to apply for hardship waivers on behalf of nursing home residents.
See 42 U.S.C. § 1396p(c)(2)(D).
5. As a practical matter, hardship waivers are not usually granted unless the
applicant is facing eviction from a nursing home. "Undue hardship" is
defined in the federal "State Medicaid Manual" at Section 3258.10(C)(5) as
34
Deficit Reduction Act, Pub. L. No. 109-171, § 6011(d).
30