The department shall waive recovery on the basis of undue hardship as provided in (a), (b), (c), (d), (e) or (f) below:

1. (a) Where the estate includes real property on which a business or farm is located and:

   1. (1) The business or farm has been in operation at the primary residence of the heir for at least 12 months preceding the death of the decedent;
   2. (2) The business or farm produces more than 50% of the heir's livelihood; and
   3. (3) The recovery of the claim would directly result in the loss of the livelihood of the heir;

2. (b) Where the estate includes income-producing property and:

   1. (1) The heir has used his/her own personal resources for the past 12 months to maintain the income-producing property;
   2. (2) The property produces more than 50% of the heir's livelihood; and
   3. (3) The recovery of the claim would directly result in the loss of the livelihood of the heir;
3. (c) Where the estate includes only personal property and recovery by the department would directly result in the heir becoming eligible for public assistance;

4. (d) Where the estate includes the home of the Medicaid recipient upon which the department placed a lien or upon which the department had authority to place a lien but didn’t due to insufficient time, and:

   1. (1) The applicant is an adult child of the deceased Medicaid recipient;
   2. (2) The applicant is the grandchild of a deceased Medicaid recipient who died on or after January 1, 2008 and who can establish that the deceased Medicaid recipient had guardianship over the applicant while the applicant was a minor or that the deceased Medicaid recipient served as in-loco parentis to the applicant while he or she was a minor;
   3. (3) The applicant resided in the home of the deceased Medicaid recipient for a period of at least 2 years immediately before the date of the deceased Medicaid recipient's admission to the medical institution;

   4. (4) The applicant establishes that he or she provided uncompensated care daily to the deceased Medicaid recipient for at least 2 years immediately before the date of the deceased Medicaid recipient’s admission to the medical institution which permitted the deceased Medicaid recipient to reside at home rather than in a medical institution, including but not limited to any or all of the following activities:

      1. a. Bathing;
      2. b. Dressing;
      3. c. Administering medication;
      4. d. Shopping;
      5. e. Cooking;
      6. f. Feeding;
      7. g. House cleaning;
      8. h. Money management;
      9. i. Driving; or
      10. j. Other care specific to the condition of the deceased Medicaid recipient; and
   5. (5) The applicant is lawfully residing in the home of the deceased Medicaid recipient and has lawfully resided in such home on a continuous basis since the date of the deceased Medicaid recipient's admission to the medical institution;

5. (e) Where the estate includes the home of the Medicaid recipient, and:

   1. (1) The applicant is a sibling of the deceased Medicaid recipient;
   2. (2) The applicant resided in the home of the deceased Medicaid recipient for a period of at least one year immediately before the date of the deceased Medicaid recipient's admission to the medical institution; and
   3. (3) The applicant is lawfully residing in the home of the deceased Medicaid recipient and has lawfully resided in such home on a continuous basis since the date of the deceased Medicaid recipient's admission to the medical institution; or

6. (f) Where the estate includes the home of the Medicaid recipient which she or he held either in life estate or in joint tenancy, and:

   1. (1) The applicant can demonstrate that he or she is either the remainderman under the life estate or the surviving joint tenant; and
   2. (2) The applicant can demonstrate that he or she paid value for the remainder interest or joint interest either when the interest was created or to cure a transfer of asset penalty contemplated at He-W 820.01(s)(3).

Source. (See Revision Note #1 at Chapter Heading He-W 600) #5171, eff 6-26-91, EXPIRED: 6-26-97 New. #7311, eff 6-22-00; ss by #7667, eff 3-27-02; ss by #9225, eff 8-1-08; ss by #11170, eff 8-26-16 (See Revision Note at Part heading for He-W 895)