Haw. Code R. § 17-1725.1-58 - Waiver of a transfer of asset penalty period due to undue hardship

(a) A penalty period may be waived if the department determines that the imposition of the penalty will cause undue hardship for the individual.

(b) Undue hardship exists if the application of a penalty period would deprive the individual of:

(1) Medical care such that the individual's life or health would be endangered; or

(2) Food, clothing, shelter, or other necessities of life.

(c) A waiver of a penalty period due to undue hardship may be granted if the individual provides satisfactory evidence to the department that the asset transferred:

(1) Has been depleted below the resource standard specified in section 17-1725.1-43;

(2) Has been converted to another asset that is not liquid or redeemable;

(3) The return of the transferred assets would put the receiving party in serious deprivation such that the loss of income or the asset would qualify the receiving party for medical assistance;

(4) The receiving party cannot be located by the individual or another including but not limited to the individual's spouse, other family member, representative, or an agent of the nursing facility, after all attempts to locate the receiving party have been exhausted; or

(5) The asset was transferred due to theft, fraud, or financial exploitation upon the individual or their community spouse.

(d) The process for requesting and reviewing a waiver of a penalty period imposed for a transfer of asset due to undue hardship is as follows:

(1) The department shall send the individual a notice of denial or a notice of adverse action according to the requirements of chapter 17-1713.1 to inform the individual of the establishment of the penalty period and the individual's right to request a hardship waiver.

(2) The individual shall have twenty calendar days from the mailing of the notice of denial or adverse action as specified in paragraph (1) to request a hardship waiver and provide all documentation to support the basis of a hardship waiver request.

(3) The department shall make a determination to grant a hardship waiver within ten business days after receiving the waiver request and supporting documentation.

(4) An individual who is denied a hardship waiver shall be informed of the enforcement date of the penalty period and the right to request a fair hearing under chapter 171703.1.

(e) Nursing facilities may request a hardship waiver on behalf of their resident with the written consent of the resident or the resident's personal representative and may represent the resident or the resident's personal representative throughout the appeals process.

Notes

Haw. Code R. § 17-1725.1-58

[Eff 09/30/13] (Auth: HRS § 346-14; 42 C.F.R. §431.10; 42 U.S.C. §1396 p(c)) (Imp: 42 C.F.R. §431.10; 42 U.S.C. §1396 p(c))