5725.1 Evidence to Support a Claim of Undue Hardship

The individual must supply evidence to support the claim of undue hardship. Evidence must be presented to support both financial and medical hardship claims. The evidence should be directly related to the claim of undue hardship and may be of any form (e.g., legal documents, medical reports, etc.). The circumstances surrounding the transfer shall also be considered.

Financial Hardship - The individual must demonstrate that an effort has been made to make resources available to pay for his or her care. Hardship may be demonstrated by documentation of one or more events in the following list. Comparable reasons may also be considered, but considerable documentation is necessary. The individual has demonstrated that all reasonable efforts to meet his or her needs from other available sources have been exhausted. Such efforts include using available exempt and non-exempt assets in which the individual currently has access, unless such use would put the individual or another blind, disabled, or deprived individual at serious risk. For example, the individual would not be expected to sell a modest home in which he and his disabled son lived. He would also not be expected to sell necessary medical equipment, or a vehicle required for employment. All reasonable means have been made by the individual to regain ownership of the transferred property or to receive full compensation for the property, or the individual demonstrates that efforts to do so would likely be unsuccessful or would not be cost effective. If funds can be made available only by selling assets which would deprive the individual, or another individual of a significant income source, which would put such individual at risk of receiving public benefits. Such risk must be demonstrated by the individual and must be substantiated by an individual certified to determine benefits for such public benefits. This does not apply if the asset being excepted is the asset transferred. The individual cannot recover the assets due to loss, destruction, or other extraordinary circumstances. Neither the individual nor the community spouse have sufficient non-exempt assets to pay for the essential care. This would include those amounts otherwise protected for the individual under the allowable resource limit. For situations where a community spouse exists, the community spouse resources, including those protected under Spousal Impoverishment provisions, are considered on a case-by-case basis depending on his or her needs as well as the amount of assets owned by the community spouse.

Medical or Deprivation Hardship - The individual must demonstrate that he or she would be deprived of medical care, food, shelter, or other necessities of life. Hardship may be demonstrated by documentation of one or more events in the following list. Comparable reasons may also be considered, but considerable documentation is necessary. The institutional provider has initiated discharge proceedings or termination of services or has refused to admit the individual or approve services due to non-payment or the inability to pay. A treating physician certifies that the immediate adverse impact of the denial of the essential institutional or alternative community-based services would put the individual at risk of death or permanent disability. The individual has demonstrated that no less costly long term care alternatives are available.