Hardship Provision 510-05-80-20

(Revised 5/1/2026 Release 26.4 )

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(N.D.A.C. 75-02-02.1-33.1 and 75-02-02.1-33.2)

A disqualifying transfer penalty is not applied if the individual can show that it would cause an undue hardship.

Upon imposition of a penalty period because of a transfer of assets or income, an individual must be informed of the right to request a hardship exception. An individual can ask for an exception to the transfer of assets penalty if they think the penalty will cause undue hardship. They must give enough proof to support their claim within 90 days of being informed of the penalty. The facility where the individual lives can ask for an exception on the individual’s behalf if the individual or their personal representative has given consent.

Send requests for a hardship exception to the Medicaid Policy Unit. Medicaid Policy will provide a decision stating when the exception starts and ends.

An undue hardship may exist if: There is proof that if the undue hardship waiver is not approved, the individual will Be without food, clothing, shelter, other necessities of life, not get medical care such that the individual’s health or life would be endangered; or The transfer was a result of financial exploitation (e.g., fraud, misrepresentation, coercion) against the individual or their spouse. Note: If the individual lives in a facility and will be involuntarily discharged, they must provide proof of: The date of discharge; the reason for discharged; and Where they will be discharged to. All lawful means to get back the transferred assets or income, or the value of the transferred assets or income, from the transferee, a fiduciary, or any insurer have been tried; All lawful means includes, but is not limited to: Contacting the individual who took or received the assets or income and asking that they be returned; Filing criminal charges with law enforcement to pursue criminal investigation/prosecution if the transferred assets or income were stolen or improperly acquired in violation of the law; and iii. Filing a civil court action and diligently pursuing the civil action to its conclusion, including enforcement of any judgment. Note: Requesting the return of the assets/funds should be tried first, but that alone is not enough unless it is successful. Filing criminal charges is also unlikely to fully satisfy the requirement, because it may not result in prosecution and a restitution order. In most cases, filing a civil action will be necessary to pursue recovery even if law enforcement is investigating. Mediation may be a reasonable step in resolving a civil action. Note: When requesting the return of transferred assets, the individual could suggest the possibility of getting a loan to repay the transferred amount. As an example, this could include getting a mortgage to repay the value of transferred real property if that is preferable to returning the real property. This is not a requirement, but a potential option for the individual requesting hardship exemption to pursue when requesting the return of the transferred assets/income. Types of supporting documentation regarding attempts to recover assets include: Emails or letters to the individual who took or received the assets or funds; Copies of complaint or police report related to filing criminal charges, police documents regarding investigation, or criminal court documents; Copies of civil complaint, court orders, and other civil court documents; or Copies of court judgment and, if there is failure to comply with the judgment, documentation showing actions taken to enforce the judgment and collect the amount awarded. The individual, their spouse, or anyone acting on behalf of either, has not made the transfer after a previous request for a hardship exception; A person who would normally provide care would have no cause of action, or has tried all legal options against the person who got the assets or income of the individual or their spouse under North Dakota Century Code chapter 13-02.1, the Uniform Voidable Transactions Act (formerly Uniform Fraudulent Transfers Act), or any substantially similar law of another jurisdiction; The individual’s remaining available assets, and the remaining assets of their spouse, if any, are less than the asset limit for an eligible Medicaid Unit. The Medicaid Unit would be the individual, their spouse, if any, and the individual's minor children. When adding up the value of the assets, do not include the following: The home the individual or their spouse is living in is an excluded asset unless the home has equity of more than 25% of the current Home Equity Limit. The Home Equity Limit changes annually. Refer to 510-05-70-27 to calculate 25% of the current Home Equity Limit. Example: The person’s home is valued at $200,000.00. They owe $100,00.00, making their equity $100,000.00. The 2026 home equity value is $752,000.00 so 25% is $188.000.00. The home's equity is less than $188,000.00; therefore, the home can be excluded. Example: The person’s home is valued at $200,000.00. The home is fully paid making the equity $200,000.00. The 2026 equity value is $752,000.00 so 25% is $188,000.00. The home’s equity is more than $188,000.00; therefore, the home cannot be excluded. Excluded personal effects, clothing, household goods, and furniture; One motor vehicle, if the primary main use is to meet the needs of members of the Medicaid unit; and Funds in an irrevocable itemized burial contract for the individual and their spouse.

If a request for an undue hardship exception is denied, the applicant or recipient may request an appeal to the North Dakota Department of Human Services.

A hardship determination approved by the Medicaid Policy Unit, or through the appeal process, may be terminated, or adjusted if; New information is received that would have changed the original determination; Circumstances change; The individual, their spouse, or anyone with authority to transfer income or assets of the individual or their spouse, makes a later transfer of income or assets; or The individual, their spouse, or anyone with authority to manage the income or assets of the individual or their spouse changes any income or assets to a form that is excluded.