Section 831. Undue hardship

A. Undue hardship can be claimed when the value of resources owned on the first day of the first month of the first continuous period of institutionalization cannot be verified after both spouses have exhausted all avenues to document the value of the resources owned on that day. When hardship is claimed, the spousal resource standard shall be used as a substitute for the spousal share when calculating the spousal protected resource amount.

B. Undue hardship can also be claimed if each of the following criteria are met:

1. The applicant establishes by affidavit specific facts sufficient to demonstrate:

a. That he has taken all steps reasonable under the circumstances to locate the spouse, to obtain relevant information about the resources of the spouse, and to obtain financial support from the spouse; and

b. That he has been unsuccessful in doing so.

Absent extraordinary circumstances, determined by DMAS, the requirements of subdivision 1 a of this subsection cannot be met unless the applicant and spouse have lived separate and apart without cohabitation and without interruption for at least 36 months.

2. Upon such investigation as DMAS may undertake, no facts are revealed that refute the statements contained in the applicant's affidavit, as required by subdivision 1 of this subsection;

3. The applicant has assigned to DMAS, to the full extent allowed by law, all claims he may have to financial support from the spouse; and

4. The applicant cooperates with DMAS in any effort undertaken or requested by DMAS to locate the spouse, to obtain information about the spouse's resources or to obtain financial support from the spouse.

Historical Notes

Derived from Volume 18, Issue 21, eff. August 1, 2002.

Statutory Authority

§ 32.1-325 of the Code of Virginia.