Section 178.104b. Clarification of fair consideration provisions for disposition of assets made on or after February 8, 2006—statement of policy

(a) For the purposes of this statement of policy, an undue hardship exists when application of the transfer of assets penalty provision would deprive the individual of one of the following:

(1) Medical care so that the individual’s health or life would be endangered.

(2) Food, clothing, shelter or other necessities of life.

(b) Consistent with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C.A. § 1396p(c)(2)(D)), regarding liens, adjustments and recoveries, and transfers of assets, effective with applications made on or after March 3, 2007, the Department will provide undue hardship waiver guidelines to an individual who is determined ineligible for payment of long-term care services due to a transfer of assets for less than fair market value made on or after February 8, 2006. The undue hardship waiver guidelines provide for the following:

(1) A notice to the individual that an undue hardship waiver exception exists.

(2) A timely process for determining whether an undue hardship waiver will be granted.

(3) A process under which an adverse determination can be appealed.

(c) Consistent with section 1917(c)(2)(D) of the Social Security Act, the undue hardship waiver request guidelines will permit the facility in which the institutionalized individual is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal representative of the individual.

(d) Until the Secretary of Health and Human Services establishes the demonstrated hardship process, the Department will apply the undue hardship process for an individual whose equity interest in the individual’s home exceeds $500,000. Consistent with section 1917(f)(1)(C) of the Social Security Act, this dollar amount shall be increased beginning January 1, 2011, from year to year based on the percentage increase in the Consumer Price Index for all urban consumers (all items; United States city average), rounded to the nearest $1,000. Revisions to this amount, as required by Federal law and regulations, will be published as a notice in the Pennsylvania Bulletin and will be made available upon request.

The provisions of this § 178.104b adopted March 2, 2007, effective March 3, 2007, 37 Pa.B. 1046; amended September 23, 2011, effective retroactive to January 1, 2011, 41 Pa.B. 5064. Immediately preceding text appears at serial page (325975).