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The transfer penalty period may be waived if denial of eligibility for long term care services creates an undue hardship. To request undue hardship, the customer must qualify for ALTCS except for transfer policy.
Undue hardship decisions are made on a case-by-case basis. The application must be approved for the limited service package due to a transfer penalty before undue hardship is requested. A customer must meet the requirements in section one or section two for undue hardship to be considered.
A request for undue hardship will be considered when the transfer penalty would deprive the customer of:
Medical care to the point that the customer’s life or health would be endangered; or
Food, clothing, shelter or other necessities of life as shown by the fact that the customer’s income is less than or equal to 100% of the Federal Poverty Level (FPL). See MA615.2 for the 100% FPL income standard.
A request for undue hardship will be granted when a violation of legal authority has occurred. The customer or representative will need to provide proof of all of the following:
The customer is incapacitated as established by the Court or by a physician;
The person who had the legal authority to handle the customer’s finances has violated the terms of that legal authority; and
A person acting on the customer’s behalf has exhausted all legal remedies to get the asset back, including filing a police report and seeking recovery through civil court.
The request for undue hardship will not be granted when:
The customer was mentally competent and would have been aware of the consequences of the transfers at the time the transfers occurred; or
The customer was mentally competent and gave another person the legal authority to make the transfers, and the person did not violate the limits of that authority in making the transfers.
When a customer sends information to request undue hardship, see How to Request an Undue Hardship Determination.
See How to Determine if an Undue Hardship should be requested for a Transfer to an Income Only Trust (IOT) when a transfer penalty applies for income left in the trust (MA902I.1).
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Term |
Definition |
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Financial legal authority |
For purposes of transfer policy, the legal right to sell, trade, use, or give away a person’s income or resources. This authority can be in the form of:
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Incapacitated |
Mentally impaired and lacking sufficient understanding or capacity to make or communicate responsible decisions as determined by a court or physician. |
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Mentally competent |
Having the mental capacity and understanding to responsibly participate in making one’s own decisions to which they are accountable for. |
Proof of undue hardship, the customer’s mental competence, and of financial legal authority includes:
Court documents, medical records, and written statements from a physician about the customer’s mental competence or incapacity;
Proof of medical and other expenses to support a claim that the customer would be deprived of medically necessary care or food and shelter without long-term care services;
Medical records;
Eviction notice from the customer’s current facility; or
Any other documents supporting the customer’s claim.
Proof of exhausting all legal remedies to get an asset back includes:
Court documents;
Adult Protective Services (APS) reports;
Police reports; or
Claims filed with the Attorney General’s office.
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Program |
Legal Authorities |
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ALTCS |
42 USC 1396p(c)(2)(D) AAC R9-28-409.H |