Section R9-28-911. Estate Recovery and Undue Hardship

A.      Any recovery of a claim by AHCCCS against a member’s estate shall be made only after the death of the member’s sur- viving spouse and only at a time:

1.        When there exists no surviving minor child under age 21; and

2.        When there exists no surviving child who receives bene- fits under either Title II or Title XVI of the Social Secu- rity Act because the child is blind or disabled as defined in 42 U.S.C. 1382c.

B.       Undue hardship exemption request. A member’s representa- tive may request an undue hardship exemption. If the mem- ber’s representative wishes to request an undue hardship exemption, the member’s representative shall submit the request within 30 days from the receipt of the notification of the AHCCCS claim against the estate. The member’s repre- sentative shall submit a written statement to AHCCCS describing the factual basis for a claim that the property should be exempt from estate recovery as provided under this Section. AHCCCS shall respond to the member or member’s represen- tative in writing within 30 days of receiving an undue hardship exemption request, unless the parties mutually agree to a lon- ger period of time.

C.      AHCCCS shall waive a claim against a member’s estate because of undue hardship if any of the following situations exist:

1.        The estate consists only of real property that is listed as residential property by the Arizona Department of Reve- nue or County Assessor’s Office, and the heir or devisee:

a.         Owns a business that is located at the residential property and:

i.         The business was in operation at the residential property for at least 12 months preceding the death of the member,

ii.        The business provides more than 50 percent of the heir’s or devisee’s livelihood, and

iii.      The recovery of the property would result in the heir or devisee losing the heir’s or devisee’s means of livelihood; or

b.        Currently resides in the residence and:

i.         Resided there at the time of the member’s death,

ii.        Made the residence his or her primary resi- dence for the 12 months immediately before the death of the member, and

iii.      Owns no other residence; or

2.        The estate consists only of personal property and:

a.         The heir’s or devisee’s gross annual income for the household size is less than 100 percent of the Fed- eral Poverty Level (FPL). New sources of income such as employment or Social Security that may not have yet been received are included in determining the household’s annual gross income; and

b.        The heir or devisee does not own a home, land, or other real property.

D.      When the estate consists of both personal property and real property that qualify for the undue hardship exemption criteria under subsections (B) and (C), AHCCCS shall not grant an undue hardship waiver; however, AHCCCS shall adjust its claim to the value of the personal property.

E.       AHCCCS shall exempt the following income, resources, and property of Native Americans (NA) and Alaska Natives (AN) from estate recovery:

1.        Income and resources from tribal land and  other resources currently held in trust and judgment funds from the Indian Claims Commission or U.S. Claims Court;

2.        Ownership interest in trust or non-trust property;

3.        Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources;

4.        Any other ownership interests or rights in a property that has unique religious, spiritual, traditional, or cultural sig- nificance or rights that support subsistence or a traditional life style according to applicable Tribal law or custom; and

5.        Income left as a remainder in an estate derived from any property listed in subsection (E)(1) through (4), that was either collected by a NA, or by a Tribe or Tribal organiza- tion and distributed to a NA.

Historical Note

New Section made by final rulemaking at 10 A.A.R. 1308, effective May 1, 2004 (Supp. 04-1). Amended by final rulemaking at 10 A.A.R. 3013, effective September 11, 2004 (Supp. 04-3). Amended by final rulemaking at

14 A.A.R. 3791, effective November 8, 2008 (Supp. 08-

3).