(a) The department shall consider, at initial application or redetermination, whether an undue hardship, as described in subdivision (b), exists prior to finding that an applicant or recipient is subject to a period of ineligibility for medical assistance for home and facility care pursuant to this article. No person shall be subject to a period of ineligibility for medical assistance for home and facility care at the time of the initial application or redetermination if the department determines that an undue hardship exists.

(b) An undue hardship shall be found to exist under any of the following circumstances:

(1) The individual has been determined eligible for medical assistance for home and facility care based on an application filed on or after January 1, 2006, and before the date that regulations adopted pursuant or relating to this section have been certified with the Secretary of State.

(2) The deprivation of medical assistance for home and facility care would cause an endangerment to the life or health of the individual.

(3) The denial of medical assistance for home and facility care would result in the eviction of the individual from a nursing home.

(4) The individual is otherwise eligible for the Medi-Cal program and unable to obtain home and facility care without Medi-Cal.

(5) The denial of medical assistance for home and facility care would cause the individual to be unable to remain at home or in the community and would hasten or cause the individual’s entry into a medical or long-term care institution.

(6) The individual would be deprived of food, clothing, shelter, or other necessities of life.

(c) The department shall establish regulations, procedures, and forms that ensure all of the following:

(1) The department or county provides a notice of the undue hardship process, at the initial request and the annual redetermination, to any individual who requests medical assistance for home and facility care. The notice shall inform the individual that undue hardship shall be considered before a request for medical assistance for home and facility care is denied.

(2) A timely and simplified process is established to determine whether an undue hardship exists and an exception will be granted.

(3) If the issue of undue hardship is considered and found not to apply, the department shall provide the individual with a notice of action that states the reasons for the adverse determination. The notice of action shall specify how that adverse determination can be appealed. Upon the request of the applicant or beneficiary, or person acting on his or her behalf, undue hardship notices shall be provided to the home and facility care administrator in accordance with regulations promulgated by the department.

(d) This section shall be implemented pursuant to the requirements of Title XIX of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.) and any regulations adopted pursuant to that act, and only to the extent that federal financial participation is available.

(e) To the extent that regulations are necessary to implement this section, the department shall promulgate regulations using the nonemergency regulatory process described in Article 5 (commencing with Section 11346) of Chapter 3.5 of Part 1 of Division 3 of the Government Code.

(f) It is the intent of the Legislature that the provisions of this section shall apply prospectively to any individual to whom the act applies commencing from the date regulations adopted pursuant to this act are filed with the Secretary of State.

(Added by Stats. 2008, Ch. 379, Sec. 9. Effective January 1, 2009.)