Page 197

CODE OF COLORADO REGULATIONS 10 CCR 2505-10 8.100 Medical Services Board

197 e. An individual or representative may request that the Eligibility Site waive a transfer penalty on the basis of undue hardship. The request shall be made in writing to the applicant’s or client’s Eligibility Site case worker. The individual making the request has the burden of proof and must provide clear and convincing evidence to substantiate the circumstances surrounding the transfer, attempts to recover the assets, and the impact of the denial of Medicaid payments for Long-Term Care services. The request and documentation shall include all of the following: i) the reason(s) for the transfer including the individual’s participation in the transfer or grant of legal authority to another that gave rise to the transfer, and the relationship between the transferor and transferee; ii) evidence to prove that the assets have been irretrievably lost and that all reasonable attempts made to recover the asset(s), including any legal actions and the results of the attempts, including but not limited to a request for an adult protection investigation (such as in a case of financial exploitation), filing a police report, or filing a civil action have been exhausted or have been or are being pursued; and, iii) documentation such as a notice of discharge or pending discharge from the facility and a physician’s statement detailing how the inability to receive nursing facility or community based services would result in the individual’s inability to obtain life-sustaining medical care or that the individual would not be able to obtain food, clothing or shelter. f. To the extent that the transferred assets are recovered pursuant to the attempts in (e)(ii) above, the individual shall reimburse Medicaid for the funds expended as a result of an approved undue hardship request. g. If the transferee and the transferor of the assets for which the transfer penalty is being imposed are related parties there shall be a rebuttable