§ 258.10. Undue hardship waivers.
(a) The Department will waive its claim in cases of undue hardship.
(b) The Department will find undue hardship and will permanently waive its claim with respect to the primary residence of a decedent if the person requesting the undue hardship waiver meets all of the following conditions:
(1) The person has continuously resided in the primary residence of the decedent for at least 2 years immediately preceding the decedent’s receipt of nursing facility services, or, for at least 2 years during the period of time which Medicaid-funded home and community based services were received.
(2) The person has no other alternative permanent residence.
(3) The person has provided care or support to the decedent for at least 2 years during the period of time that Medicaid-funded home and community based services were received by the decedent, or for at least 2 years prior to the decedent’s receipt of nursing home services during which time the decedent needed care or support to remain at home
(c) The Department will find undue hardship and will permanently waive its claim with respect to an income-producing asset if a spouse, child, parent, sibling or grandchild of the decedent meets both of the following:
(1) The asset is used to generate the primary source of income for the household.
(2) There would be a gross family income of less than 250% of the Federal poverty guideline without use of the asset.
(d) An income producing asset is property which is used in a trade or business such as a family farm, family business or rental property, excluding cash, stocks and bonds, mutual fund shares or other marketable financial instruments.
(e) The Department will find undue hardship and will permanently waive from the amount of the Department’s recovery, an amount equal to the necessary and reasonable expenses for maintaining the decedent’s home while the decedent was receiving home and community based services or maintaining decedent’s vacant home while the decedent was in a nursing facility. Necessary and reasonable expenses for maintaining the home include real estate taxes, utility bills, home repairs and home maintenance such as lawn care and snow removal necessary to keep the property in condition for the decedent to return home or to sell at fair market value. Creditors are not eligible to request a waiver under this subsection.
(f) The Department will find undue hardship and will permanently waive its claim for administered estates with a gross value of $2,400 or less, if there is an heir.
(g) A spouse, parent, child or sibling of the decedent who receives a postponement of collection in accordance with § 258.7 (relating to postponement of collection) is not precluded from receiving an undue hardship waiver if the criteria in subsection (b), (c), (e) or (f) are met.
(h) The Department has exclusive authority to waive its claim, compromise its claim, or postpone collection, in other circumstances when undue hardship exists, or when collection is not cost-effective, as determined by the Department on an individual case-by-case basis.
(i) Waiver requests shall be submitted to the following address: Estate Recovery Program, Post Office Box 8486, Harrisburg, Pennsylvania 17105-8486.
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