NC Register Volume 21 Issue 09 - Office of Administrative Hearings

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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 763
PROPOSED RULES (c) The individual or the individual's personal representative shall have 12 calendar days from the date of the notice required under Paragraph (b) of this Rule to file an application for an undue hardship waiver. The application may be made verbally or in writing. The application shall be documented in the individual's record either by the individual's written request including the date received or if the application is made verbally, the receipt of the application shall be documented and dated in the individual's record. As required by 42 U.S.C. 1396p(c)(2)(D), the facility in which an institutionalized individual is residing may file an undue hardship application on behalf of the institutionalized individual with the consent of the individual or the personal representative of the individual. A facility applying for a waiver for an individual residing in the facility shall adhere to the requirements of this Rule. (d) Upon receipt of the application for a waiver of the transfer of assets penalty specified in Paragraph (c) of this Rule, the county department of social services shall notify the individual in writing of the information and documentation necessary to determine if the requirements for approving the undue hardship waiver are met. The individual shall have 12 calendar days from the date of the notice specified in this Paragraph to provide the necessary information and documentation to establish the undue hardship. Prior to the expiration of the initial 12 calendar day period, the individual may request an additional 12 calendar days to provide the information and documentation. The request shall be documented in the individual's record either by the individual's written request including the date received or if the request is made verbally, the receipt of the request shall be documented and dated in the individual's record. The county department of social services shall grant the request, and the additional 12 calendar days shall commence on the day following the last day of the first 12 calendar day period. (1) If at the end of the time allowed, the individual fails to provide the necessary information and documentation, the county department of social services shall deny the application for waiver of the penalty for undue hardship and notify the individual of the denial pursuant to G.S. 108A-79. (2) If the necessary information and documentation is provided within the time allowed, the county department of social services shall notify the individual in 12 calendar days of its determination of whether the imposition of the penalty would result in an undue hardship to the individual. (e) Except as provided for in Paragraph (f) of this Rule undue hardship shall exist only if the individual provides the information and documentation necessary to demonstrate to the satisfaction of the Director of the county department of social services or the Director's designee that all of the following conditions are met: (1) The application of the penalty would deprive the individual of medical care, such that the individual's health or life would be endangered; or of food, clothing, shelter, or other necessities of life without which the individual's health or life would be endangered; (2) No alternative sources are available to the individual to provide the medical care or food, clothing, shelter or other necessities of life that the individual would be deprived of due to the imposition of the penalty; (3) The individual, the individual's spouse or representative, or the person who transferred the asset, including any person who had responsibility for the individual's financial affairs has made a good faith effort to pursue all reasonable means to recover the transferred resource or the fair market value of the transferred asset, including: (A) Seeking the advice of an attorney and pursuing any available legal or equitable remedies such as asset freezing, assignment, or injunction; (B) Seeking modification, avoidance or nullification of a financial instrument, promissory note, loan, mortgage or other property agreement, or other similar transfer agreement or instrument; and (C) Cooperating with any attempt to recover the transferred resource or the fair market value of the transferred resource. (4) For purposes of this Paragraph the following definitions shall apply: (A) (B) "Health or life would be endangered" means: a medical doctor with knowledge of the individual's medical condition at the time of the application of the penalty period, certifies in writing that in his or her professional opinion, the individual will be in substantial danger of death or the individual's health will suffer substantial and irreparable harm. "Other necessities of life" means: basic, life sustaining utilities, including water, heat, electricity, phone, and other items or activities that without which the individual's health or life would be endangered. (f) An undue hardship shall not exist when: (1) The application of a transfer of assets penalty merely causes the individual an inconvenience or restricts his or her lifestyle; (2) The institutionalized spouse has transferred his or her assets to the community spouse and the community spouse refuses to cooperate in making the assets available to the institutionalized spouse; or (3) The individual's total available income and resources (or if a couple, the total combined available income and resources of the 21:09 NORTH CAROLINA REGISTER NOVEMBER 1, 2006 764
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NC Register Volume 21 Issue 09 - Office of Administrative Hearings

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