Section 28 of Chapter 118E of the General Laws is hereby amended by inserting at the end thereof the following sections:

In accordance with P.L. 109-171 amending Section 1917(c)(2)(D) of the Social Security Act, the division shall establish criteria and procedures for determining whether undue hardship exists as a result of the imposition of a period of ineligibility, which shall include written notice to said individual that an undue hardship waiver shall be granted and an opportunity to appeal.  An individual shall have no fewer than 30 days after the date of the final decision including court appeals to impose a period of ineligibility to request an undue hardship waiver.

There shall be a rebuttable presumption that an institutionalized individual is eligible for an undue hardship waiver if the individual provides documentation that all of the following criteria are met:

1) the individual has insufficient available resources (excluding the community spouse resource allowance) to provide medical care, food, shelter, clothing and other necessities of life such that the individual would be at risk of serious deprivation or harm;

2) the individual has made reasonable attempts to retrieve the transferred resources or receives adequate compensation.  Reasonable attempts shall not include the filing of frivolous lawsuits;

3) there is no available lest costly alternative to institutional care that would meet the individual's care needs; and

4) the period of ineligibility will not be a mere inconvenience to the applicant but rather will create a situation that would subject the applicant to risk of serious deprivation.  A nursing facility does not have to express an intent to discharge the individual for nonpayment in order for a hardship waiver to be granted.

The division shall promulgate regulations incorporating these criteria for consideration of an undue hardship waiver request.