Rule 111-3-8-.08 - Hardship Waiver(1) Hardship waivers will be submitted to the program administrator for review. The denial of a hardship waiver may be appealed as provided under the Administrative Procedures Act, O.C.G.A. § 50-13-1et. seq. The waiver is limited to the period in which the undue hardship exists.(2) There is no hardship waiver provided at the time of lien placement against the real property of a deceased Medicaid Member. The equity interest of the heir will be considered to determine the percentage of the deceased member's interest in the property.(3) Lien placement is utilized to delay recovery until such time as an exemption to recovery does not exist, or in the case of an undue hardship, until such time as the undue hardship no longer exists. The state's lien would be for the Medicaid benefits paid on behalf of the Member or the percentage of interest of the deceased Member at the time of sale, whichever is less.(4) Recovery will be waived in whole or in part pursuant to Rule 111-3-8-.08(1) of any estate or lien recovery when the requesting party is able to show, through clear and convincing evidence, that the state's pursuit of recovery subjects them to undue hardship. In determining whether an undue hardship exists, the following criteria will be used: (a) The asset to be recovered is an income producing farm and sole income source of one or more of the Heirs and the annual gross income is limited to $25,000 or less and is not merely rental income; or(b) The recovery of assets would cause the applicant to become eligible for needs based governmental public assistance based on need and/or medical assistance programs.(5) Notwithstanding the provisions of Paragraph (4) of this Rule, an undue hardship exists when an estate has a gross value of $25,000 or less. Therefore, estates with a gross value of $25,000 or less are exempt from estate recovery. In this instance, undue hardship does not need to be asserted.(6) Undue hardship does not exist when: (a) The adjustment or recovery of the Member's cost of assistance would merely cause the Member's family members inconvenience or restrict the family's lifestyle; or(b) The Member and/or the Heirs divest assets to qualify under the undue hardship provision.(7) To the extent that there is any conflict between the preceding criteria and the standards that may be specified by the secretary of the U.S. Department of Health and Human Services, the federal standards shall prevail.(8) The personal representative and/or Heirs shall apply for an undue hardship exemption by:(a) Making a written request to the Department within thirty (30) days of receipt of the notice; and(b) Verifying to the Department's satisfaction the criteria specified in this section for an undue hardship waiver.(9) The Department shall issue a decision on an undue hardship exemption request within thirty (30) days of receipt of the request and supporting documentation.(10) If the state denies the personal representative's request for an undue hardship waiver, the personal representative may request an appeal. The denial of a waiver must state the requirements of an application for an adjudicative proceeding to contest the Department's decision to deny the waiver and where assistance may be obtained to make such application.(11) If an appeal is requested, a hearing shall be conducted by the probate judge if the estate is in probate court. An administrative law judge shall conduct the administrative hearing if the case is not in probate court.(12) If the Department deems an undue hardship does exist, the state may waive recovery or defer recovery until the death of eligible exempt dependents, on the sole discretion of the Department.(13) The provisions of this section are severable. If any provision of this section is held invalid, the remaining provisions remain in effect.Ga. Comp. R. & Regs. R. 111-3-8-.08
O.C.G.A. § 49-4-147.1.
Original Rule entitled "Hardship Waiver" adopted. F. July 16, 2004; eff. August 5, 2004.Amended: F. Aug. 17, 2004; eff. Sept. 6, 2004.Amended: F. Oct. 19, 2006; eff. Nov. 8, 2006.Amended: F. Mar. 27, 2020; eff. Apr. 16, 2020.