N.H. Admin. Code § He-W 821.01

Current through Register No. 50, December 12, 2024

Section He-W 821.01 - Asset Transfer Penalty Undue Hardship Waiver

(a) As used in this section, the following terms shall have the meanings indicated:

(1) "Discharge" means "discharge" as defined in RSA 151:19, I-a, namely, the "movement of a patient from a facility to a non-institutional setting or the termination of services by a home health care provider when the discharging facility or home health care provider ceases to be legally responsible for the care of the patient";

(2) "Good cause" means any circumstance beyond a person's control that prevents that person from complying with a requirement, including:

a. A death in the person's immediate family;

b. Personal injury or serious illness of the person or an immediate family member; or

c. Another compelling reason or justification;

(3) "Individual" means the person who applied for or is receiving services from the nursing facility (NF) or under the home and community based (HCBC) waiver program.

(4) "Necessities of life" means those things a person needs to live, including but not limited to, heat, hot water, electricity, gas service, or cooking fuel;

(5) "Sworn statement" means a statement made under oath or affirmation reciting facts which are personally known by the signer, and which are sworn to or affirmed and notarized by either a notary public or justice of the peace; and

(6) "Undue hardship" means a hardship that imposes an unreasonable or disproportionate burden on the individual, as described in RSA 167:4, III-a, and 42 USC 1396p(c) (2) (D) .

(b) Requests for an asset transfer penalty undue hardship waiver shall include all of the following:

(1) The individual's name, address, and telephone number;

(2) The name, address, telephone number, and relationship to the individual, of the individual's legal guardian, authorized representative (AR), power-of-attorney, or attorney, if any;

(3) Identification of the specific reason(s) for the request for an asset transfer penalty undue hardship waiver from the following list:

a. The asset was transferred by a person representing the individual and it can be demonstrated that the individual lacked the mental capacity to comprehend the disqualifying nature of the transfer;

b. The application of the asset transfer penalty would result in the individual being deprived of, and otherwise unable to obtain, necessary care such that the individual's health or life would be endangered; and

c. The application of the asset transfer penalty would result in the individual being deprived of, and otherwise unable to obtain, food, clothing, shelter, and/or other necessities of life; and

(4) The printed name and dated signature of the individual, or, if filed by the individual's agent or representative, the printed name and dated signature of the agent or representative, and their relationship to the individual.

(c) A request for an asset transfer penalty undue hardship waiver shall include the following attachments:

(1) If the request for an undue hardship waiver was filed by the individual's agent or representative, a copy of the legal documentation shall be provided that authorizes the agent or representative to act on behalf of the individual, such as an authorized representative declaration, court order appointing a guardian, power of attorney, etc.;

(2) The following verifications shall be required in all cases in the form of written documentation or other evidence that a good faith effort was made to recover the asset(s) transferred or to make the asset(s) available to the individual, such as, but not limited to:

a. Any written request for the asset(s) to be returned to the individual;

b. Any demand letter(s);

c. Any response letter(s) from any recipient of the transferred asset(s);

d. Any documents or other evidence showing that legal action has been initiated to recover the asset(s); or

e. Any document or other evidence that demonstrates that action has been taken to recover the asset(s) or to make the asset(s) available to the individual to help pay for the cost of the individual's stay in the NF or to pay for HCBC services;

(3) The following verifications shall be required if the request for an asset transfer penalty undue hardship waiver is based upon a claim that the individual lacked the mental capacity to comprehend the disqualifying nature of the transfer, pursuant to (b) (3) a. above:

a. A written, dated, and signed statement from a licensed physician stating that the individual was mentally incapacitated at the time of the transfer, along with supporting medical records or an order of findings from a probate court concerning the individual's competency at the time of the transfer; and

b. Financial records that demonstrate that the asset(s) was transferred by the individual's agent or representative.

(4) The following verifications are required if the request for an asset transfer penalty undue hardship waiver is based upon a claim that the individual's health or life will be endangered pursuant to (b) (3) b. above:

a. For NF services:

1. A dated and signed statement from the NF that documents:

(i) The individual is currently residing in the NF;

(ii) The individual's current arrearage owed to the NF; and

(iii) The monthly amount currently being paid to the NF by the individual;

2. A sworn, signed, and dated statement from the individual or the individual's agent or representative that documents:

(i) The individual lacks the income and resources to pay for the NF services and documentation of what measures have been taken to explore alternatives for payment; and

(ii) A list of the individual's health insurance(s) plan coverage;

3. A signed and dated statement from a licensed physician or licensed nurse practitioner that documents:

(i) He or she is the individual's primary care provider (PCP);

(ii) The specific services that the individual requires and receives in the NF;

(iii) Services that the individual would need if discharged from the NF;

(iv) The specific needs of the individual that cannot be met in the community if the individual is discharged from the NF;

(v) A brief explanation of the consequences to the individual if deprived of NF services and why the individual's life or health will be endangered; and

(vi) Appellant's diagnoses, his or her prognosis, and the severity of his or her condition; and

4. Evidence that the NF has, in good faith, initiated the process to discharge the individual due to a lack of payment; and

b. For HCBC services documents that show the individual lacks the income and resources to pay for the HCBC services, as follows:

1. For applicants a statement dated and signed by the individual's PCP that documents:

i. The medical services that the individual requires;

ii. A brief explanation of why the imposition of an asset transfer penalty will deprive the individual of medical care such that the individual's life or health will be endangered; and

iii. A list of the individual's health insurance(s) plan coverage; or

2. For recipients a statement dated and signed by the individual's PCP that documents:

i. The medical services that the individual requires;

ii. The services that the individual will lose if the asset transfer penalty is imposed, if any;

iii. A brief explanation of why the imposition of an asset transfer penalty will deprive the individual of medical care such that the individual's life or health will be endangered; and

iv. A list of the individual's health insurance(s) plan coverage; and

(5) The following verifications shall be required if the request for an asset transfer penalty undue hardship waiver is based upon a claim that the individual will be deprived of food, clothing, shelter, or other necessities of life pursuant to (b) (3) c. above:

a. A signed and dated statement from the individual, or the individual's agent or representative, explaining how the imposition of a penalty period will result in the deprivation of food, clothing, shelter, or other necessities of life; and

b. Signed and dated statements from the NF or HCBC service providers describing the specific services that the individual needs to avoid being deprived of food, clothing, shelter, or other necessities of life.

(d) Requests for an asset transfer penalty undue hardship waiver, including required verifications, shall be filed no later than 30 calendar days from the date on the notice of asset transfer penalty.

(e) Upon receipt of a request for an asset transfer penalty undue hardship waiver, the department of health and human services (DHHS) shall:

(1) Review the request, attachments, verifications, and any other supporting documentation provided with the request;

(2) Determine whether the request establishes that the individual will suffer an undue hardship if the asset transfer penalty is imposed; and

(3) Notify the individual, or the individual's agent or representative who submitted the request for an asset transfer penalty undue hardship waiver, of DHHS' decision on the request, including the individual's appeal rights.

(f) Failure to comply with the requirements for an asset transfer penalty undue hardship waiver request shall result in the request being denied, unless DHHS determines that there was good cause for the non-compliance.

N.H. Admin. Code § He-W 821.01

Derived From Volume XXXVII Number 28, Filed July 13, 2017, Proposed by #12217, Effective 6/22/2017, Expires 6/22/2027.