Virginia Law

A. Undue hardship exists when the department determines that the application of the transfer of assets provisions would deprive the individual of medical care such that his health or his life would be endangered or would deprive the individual of food, clothing, shelter or other necessities of life.

B. When determining the eligibility of an individual who has transferred resources without receiving adequate compensation, the individual must be notified:

1. That an undue hardship can be claimed, the process for seeking an exception from the transfer of assets provisions and the time frame making determinations of whether an undue hardship exists;

a. That written documentation must be provided to substantiate the circumstances of the transfer and the claim of undue hardship.

b. That written documentation must be provided to document that the resources transferred without adequate compensation cannot be recovered.

c. That written documentation must clearly substantiate the immediate adverse impact of the denial of Medicaid coverage of long-term care services due to the uncompensated transfer and would result in the individual being removed from the institution or unable to receive life sustaining medical care, food, clothing, shelter or other necessities of life.

2. That a denial of a claim for undue hardship may be appealed in accordance with the provisions of 12VAC30-110.

C. A hardship waiver may be requested by:

1.The applicant for, or recipient of, medical assistance services;

2.The applicant or recipient's spouse, legal guardian, power-of-attorney or person who has been authorized in writing by the applicant or recipient to act on his behalf; or

3. With the written consent of the individual or his personal representative, the nursing facility in which the institutionalized individual is residing.