How can I file an undue hardship waiver for Medicaid estate recovery? – North Carolina

Short Answer

In North Carolina, an undue hardship waiver for Medicaid estate recovery is a written request to the North Carolina Department of Health and Human Services to waive all or part of its estate recovery claim because recovery would be unfair and would create hardship for certain survivors or heirs. The request is handled through Medicaid’s estate recovery unit (not the Clerk of Superior Court) and should follow the submission method and formatting the unit provides (such as email with a specific subject line that includes the case number and county/jurisdiction). Because waiver processes can be time-sensitive and can change, the request should be submitted promptly and with supporting documents.

Understanding the Problem

In North Carolina, when Medicaid asserts an estate recovery claim after a Medicaid recipient’s death, a common question is: can an estate or family member ask Medicaid to waive recovery because enforcing the claim would create an undue hardship? A related practical question is how the waiver request must be submitted (for example, by email or fax), and what identifying information must be included so the request is matched to the correct estate recovery file. The key decision point is whether the waiver request is being sent in the way Medicaid’s estate recovery unit requires so it is treated as a valid request.

Apply the Law

North Carolina law requires the State to pursue Medicaid estate recovery in many cases, but it also requires a waiver process when recovery would be inequitable because it would work an undue hardship. In practice, the waiver request is handled administratively through the Department of Health and Human Services (the unit that administers estate recovery), even though the underlying estate is administered through the Clerk of Superior Court. The waiver is not a court motion in the estate file; it is a request to Medicaid supported by documents showing why recovery should be reduced or waived.

Key Requirements

Correct program and issue: The request must clearly state it is an undue hardship waiver request tied to a Medicaid estate recovery claim (not a Medicaid eligibility “transfer penalty” hardship waiver).
Proper identification of the matter: The request should include the estate recovery case number (or claim/reference number) and the county/jurisdiction so Medicaid can match the request to the right file.
Supporting documentation: The request should include a concise explanation of the hardship and attach documents that support the claim (for example, proof of occupancy, dependency, disability, limited resources, or other facts Medicaid considers for hardship).

What the Statutes Say

N.C. Gen. Stat. § 108A-70.5 (Medicaid Estate Recovery Plan) – Establishes North Carolina’s estate recovery plan and requires rules, including rules to waive recovery when it would be inequitable because it would work an undue hardship.

Analysis

Apply the Rule to the Facts: The facts describe an estate recovery case where a hardship waiver must be filed with Medicaid, and the main operational question is whether to submit by fax or by email. Under North Carolina’s estate recovery framework, the waiver request goes to the Department’s estate recovery unit rather than the Clerk of Superior Court, so following the unit’s submission instructions matters. If the unit confirmed a specific email address and required a subject line that includes the case number and jurisdiction, submitting by that method and format helps ensure the request is logged under the correct file.

Process & Timing

Who files: Typically the personal representative, an heir, or an authorized representative. Where: North Carolina DHHS Medicaid estate recovery unit (administrative submission, not the Clerk of Superior Court). What: A written “undue hardship waiver” request with attachments that support the hardship claim. When: As soon as possible after receiving the estate recovery claim notice; specific time limits can be set by the notice and can vary by program and situation.
Submit the request the way Medicaid instructs: If the estate recovery unit instructs submission by email, send it to the confirmed email address and use the required subject line format (including the case number and jurisdiction). If the unit allows fax, use fax only if the unit confirms that method and provides the correct number and cover-page requirements.
Confirm receipt and track the response: Keep a copy of the sent email/fax, attachments, and any delivery confirmation. If Medicaid requests additional information, respond by the deadline in the request letter to avoid denial for missing documentation.

Exceptions & Pitfalls

Mixing up two different “hardship” processes: North Carolina has a separate undue hardship process for Medicaid eligibility transfer penalties handled through the county department of social services; estate recovery hardship is a different process handled through the estate recovery unit.
Leaving out identifiers: If the submission does not include the case/claim number and county/jurisdiction in the subject line (or cover sheet), Medicaid may not match it to the file, delaying review.
Insufficient documentation: A hardship waiver request that is only a short statement without records often triggers a request for more information or a denial; sending organized attachments and a clear summary improves review.
Filing only in the estate file: Putting the waiver request in the estate file with the Clerk of Superior Court does not, by itself, submit the request to Medicaid.

Conclusion

In North Carolina, an undue hardship waiver for Medicaid estate recovery is an administrative request to DHHS asking the State to waive all or part of its estate recovery claim because recovery would be inequitable and would work an undue hardship. The waiver request should identify the estate recovery case number and county/jurisdiction and include documents that support the hardship. Next step: submit the written waiver request to the Medicaid estate recovery unit using the submission method it provided (including the required subject line), and do so by the deadline stated in Medicaid’s notice.

Talk to a Probate Attorney

If Medicaid estate recovery is affecting an estate administration and an undue hardship waiver may apply, our firm has experienced attorneys who can help clarify the required paperwork, submission method, and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.