An official State of Texas website.
Revision 09-4; Effective December 1, 2009
A person may claim undue hardship when imposition of a transfer penalty would result in discharge to the community and/or inability to obtain necessary medical services so that the person's life is endangered. Undue hardship also exists when imposition of a transfer penalty would deprive the person of food, clothing, shelter or other necessities of life. Undue hardship relates to hardship to the person, not the relatives or responsible parties of the person. Undue hardship does not exist when imposition of the transfer penalty merely causes the person inconvenience or when imposition might restrict lifestyle, but would not cause risk of serious deprivation.
Undue hardship may exist when any one of the following conditions exists:
- location of the receiver of the asset is unknown to the person, other family members or other interested parties, and the person has no place to return in the community and/or receive the care required to meet the person's needs;
- person can show that physical harm may come as a result of pursuing the return of the asset, and the person has no place to return in the community and/or receive the care required to meet the person's needs; or
- receiver of the asset is unwilling to cooperate (such as an Adult Protective Services exploitation or potential fraud case) with the person and HHSC, and the person has no place to return in the community and/or receive the care required to meet the person's needs.
If a person claims undue hardship, HHSC must make a decision on the situation as soon as possible, but within 30 days of receipt of the request for a waiver of the penalty. The person has the right to appeal an adverse decision on undue hardship.
HHSC must permit the institution in which the individual is residing to file for an undue hardship waiver on behalf of an individual who would be subject to a penalty period resulting from a transfer of assets. Before filing for an undue hardship waiver, the institution must have the consent of the individual or the individual's authorized representative. In addition to requesting an undue hardship waiver, the institution may present information on behalf of the individual and may, with the specific written consent of the individual or the individual's authorized representative, represent the individual in an appeal of an undue hardship denial decision.
At a minimum, a written statement explaining the person's reasons for the transfer, who received the asset, how that person can be located, why the person's needs cannot be met and why there is undue hardship for the person must be included in the documentation.
The supervisor must sign off on all undue hardship cases.
I-4310 Undue Hardship Example
Revision 09-4; Effective December 1, 2009
Situation: Mr. Nelson Stiles, a nursing facility applicant, provided his bank statements as resource verification. The statements indicated that $1,000 was withdrawn from his account for the previous six consecutive months. He stated that he allowed his niece, who knew his personal identification number on his Pulse Card, to take the money. He thinks she took the money to pay off her debts and has now left the state. He does not know where she is and does not know if he will see her again. He said he has no other living relatives. He does not own a home or know anyone he could live with who could help to take care of him.
Action: This is an acceptable case of undue hardship. Document the case thoroughly and obtain the necessary approval signatures.