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TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 47 standards used by the SSI program (Title XVI). The individual will be given a reasonable amount of time to provide the medical evidence. 10 DE Reg. 558 (09/01/06) 15 DE Reg. 202 (08/01/11) 20350.11 Undue Hardship A transfer of assets is exempt from consideration if the penalty would cause undue hardship. Undue hardship exists when application of the transfer of assets provisions would deprive the individual of medical care such that his/her health or his/her life would be endangered. Undue hardship also exists when application of the transfer of assets provisions would deprive the individual of food, clothing, shelter or other necessities of life. 20 DE Reg. 117 (08/01/16) 20350.12 Transfer of Assets Procedures If an individual and/or couple alleges selling, giving away or otherwise transferring any non-excluded assets within the 60 months preceding the date of application, take the following steps: 1. Ascertain and document the FMV of the asset. 2. Ascertain and document the amount of compensation received by the individual and/or couple for the transfer. 3. Calculate the uncompensated value, if any. If the asset was transferred at FMV, process the application as usual. If the asset was transferred at less than FMV, explain to the applicant that an amendment to the Social Security Act requires that DSS presume, when assets are sold or given away at less than FMV, that the transaction was made for the purpose of establishing Medicaid eligibility. The difference between the amount received for the transfer and the FMV is counted as being available to meet the needs of the individual for a period after the date of disposal. Explain that the law requires that DSS presume the transfer to be for the purpose of establishing Medicaid eligibility unless the individual can demonstrate that: 1) the individual intended to dispose of the assets either at fair market value or for other valuable consideration; or 2) the assets were transferred exclusively for a purpose other than to qualify for Medicaid. If the applicant does not wish to rebut the presumption, she/he will be ineligible for Medicaid for a specified period. 20350.13 Rebutting the Presumption In all cases where any amount of uncompensated value is established, the applicant must be advised of the fact before the application is allowed or denied. The applicant should be given written notice that it was determined that she/he transferred an asset for less than fair market value and that this amount must be counted for eligibility purposes unless the individual wishes to rebut the presumption. If an applicant wishes to rebut the presumption, the burden of proof rests with the applicant. The intent to rebut the presumption must be received in the DSS/Medicaid office within 15 days of the date of the notice. The following information should be obtained from the applicant and placed in the file: 1. the applicant's purpose for transferring the asset 2. the applicant's attempts to dispose of the asset at FMV 3. the applicant's reasons for accepting less than FMV 4. the applicant's means of, or plans for, supporting himself/herself after the transfer 5. the applicant's relationship, if any, to the person(s) to whom the asset was transferred 6. the file should also include any pertinent documentary evidence (e.g., legal documents, realtor agreements, relevant correspondence, etc.). Statements from other individuals may also be obtained if material to the decision to transfer. Verbal statements that the individual intended to dispose of the asset at fair market value or that the individual transferred the asset for a purpose other than to qualify for Medicaid are not sufficient evidence. Convincing evidence must be presented as to the specific purpose for which the asset was transferred, as well as to the reason why the individual chose to transfer the asset. The validity of the individual's rebuttal must be determined on a case-by-case basis, based on the individual's specific circumstances. The presence of one or more of the following factors, while not conclusive, may indicate that assets were transferred exclusively for some purpose other than establishing Medicaid eligibility. This list is not all-inclusive. 1. After transfer of assets, the occurrence of traumatic onset of disability. 2. After the transfer of assets, the occurrence of unexpected loss of other resources which would have precluded Medicaid eligibility.