NC Register Volume 21 Issue 09 - Office of Administrative Hearings

PROPOSED RULES
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Health and Human Services- Division of
Medical Assistance intends to adopt the rule cited as 10A NCAC
21B .0314.
Proposed Effective Date: March 1, 2007
Public Hearing:
Date: November 16, 2006
Time: 10:30 a.m.
Location: 1985 Umstead Drive, Raleigh, NC 27603, Kirby
Building, Room 132
Reason for Proposed Action: This rule is required by Section
10.5(b) of S.L. 2006-66 (eff.7/1/06), which provides: "The
Department of Health and Human Services shall proved for a
hardship waiver process in accordance with 42 U.S.C.
1396p(c)(2)(D)". Time is of the essence because the waiver
process required under 42 U.S.C. 1396p(c)(2)(D) is a necessary
prerequisite for the Department's implementation of changes to
federal transfer of asset laws that became effective February 8,
2006 with the passage of the Deficit Reduction Act. Individuals
who transfer assets for less than fair market value in order to
become eligible for medical assistance for long term care
services are subject to a transfer of assets penalty. The penalty
will result in the individual being denied or terminated from
medical assistance for long term care services for a certain
length of time, depending on the fair market value of the
transferred assets. The transfer of asset penalties are imposed
pursuant to federal and state authority under 42 U.S.C. 1396p(c)
and G.S. 108A-58.1. The rule sets forth the right of the
individual to receive notice of the right to request a waiver due
to undue hardship, the application procedures and time lines,
and conditions that must be met to satisfactorily demonstrate
that an undue hardship exists for the individual.
Procedure by which a person can object to the agency on a
proposed rule: Should you desire to object to a proposed
rule(s) please respond to DMA with the objection, reasons for
the objection, and the clearly identified portion of the rule to
which the objection pertains. This must be submitted in writing
to Teresa Smith, Division of Medical Assistance, 1985 Umstead
Drive, Raleigh, NC 27603 or 2501 Mail Service Center, Kirby
Building.
Comments may be submitted to: Teresa Smith, Division of
Medical Assistance, 1985 Umstead Drive, Raleigh, NC 27603,
Kirby Building, 2501 Mail Service Center, Raleigh, NC 27699-
2501, fax (919) 733-6608
Comment period ends: January 1, 2007
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 21 - MEDICAL ASSISTANCE
ADMINISTRATION
SUBCHAPTER 21B – ELIGIBILITY DETERMINATION
SECTION .0300 - CONDITIONS FOR ELIGIBILITY
10A NCAC 21B .0314 WAIVER OF TRANSFER OF
ASSETS PENALTY DUE TO UNDUE HARDSHIP
(a) An individual who incurs a penalty for transfer of assets by
being denied or terminated from Medicaid payment of long term
care services under the provisions of 42 U.S.C. 1396p shall have
that penalty waived if the Director of the county department of
social services or the Director's designee determines that the
imposition of the penalty would result in an undue hardship to
the individual.
(b) When it is determined that an individual is to be penalized
for a transfer of assets, the county department of social services
shall notify the individual in accordance with G.S. 108A-79.
The notice shall include the individual's right to apply to the
county department of social services for a waiver of the penalty
if the imposition of the penalty would result in an undue
hardship to the individual.
21:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2006
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