Chapter DHS 103

DHS 103.075(3)(e) (e) “Institutionalized spouse” means either an individual who is in a medical institution or nursing facility and is legally married to an individual who is not in a medical institution or nursing facility or an individual who receives services under a waiver under 42 USC 1396n (c) or (d) and is legally married to an individual who is not in a medical institution or nursing facility and does not receive services under a waiver under 42 USC 1396n (c) or (d).

DHS 103.075(3)(f) (f) “Medical institution” means a facility that:

DHS 103.075(3)(f)1. 1. Is organized to provide medical care, including nursing and convalescent care;

DHS 103.075(3)(f)2. 2. Has the necessary professional personnel, equipment and facilities to manage the medical, nursing and other health care needs of patients on a continuing basis in accordance with accepted professional standards;

DHS 103.075(3)(f)3. 3. Is authorized under state law to provide medical care; and

DHS 103.075(3)(f)4. 4. Is staffed by professional personnel who are responsible for professional medical and nursing services. The professional medical and nursing services shall include adequate and continual medical care and supervision by a physician, registered nurse or licensed practical nurse supervision and services and nurses’ aide services sufficient to meet nursing care needs and a physician’s guidance on the professional aspects of operating the institution.

DHS 103.075(3)(g) (g) “Resources” does not include items excluded under 42 USC 1382b (a) or (d) or items that would be excluded under 42 USC 1382b (a) (2) (A) but for the limitation on total value established under that provision.

DHS 103.075(4) (4) Assessment.

DHS 103.075(4)(a) (a) An institutionalized spouse or the community spouse, or a representative acting on the behalf of either spouse, may request that an agency complete an assessment of the couple’s assets for purposes of determining total countable assets of the couple and the community spouse resource allowance. If the request is not part of an application for medical assistance, the agency may charge a fee not exceeding the reasonable expenses of providing and documenting the assessment.

DHS 103.075(4)(b) (b) Both the institutionalized spouse and the community spouse shall verify the assets that they own, jointly or individually, and the value of those assets at the beginning of the most recent continuous period of institutionalization.

DHS 103.075(4)(c) (c) The agency shall:

DHS 103.075(4)(c)1. 1. Complete the assessment within 30 days after the date of the request for an assessment;

DHS 103.075(4)(c)2. 2. Determine and verify the total countable assets of the couple using the procedures under sub. (5) (b) 2.;

DHS 103.075(4)(c)3. 3. Determine the community spouse resource allowance pursuant to s. 49.455 (6) (b), Stats.; and

DHS 103.075(4)(c)4. 4. Notify in writing the institutionalized spouse and the community spouse, or a representative acting on the behalf of either spouse, of the couple’s total countable assets, the community spouse resource allowance and the amount of assets that the couple may retain so that the institutionalized spouse may be asset-eligible for MA and of the right of either spouse to a fair hearing under sub. (8) after an application for medical assistance is filed.

DHS 103.075(5) (5) Assets.

DHS 103.075(5)(a) (a) Applicability. This subsection applies only to individuals who began their most recent continuous period of institutionalization after September 29, 1989. Those individuals who began their most recent continuous period of institutionalization before September 30, 1989, shall have their eligibility determined using asset eligibility criteria under s. DHS 103.06 (1) unless the individual left the institution or lost eligibility for a community-based services waiver program under 42 USC 1396n (c) or (d) for a period of at least 30 days and subsequently began a new continuous period of institutionalization after September 29, 1989.

DHS 103.075(5)(b) (b) Eligibility determination.

DHS 103.075(5)(b)1. 1. Initial determination. The agency shall consider the total countable assets of the institutionalized spouse and his or her community spouse in determining initial MA eligibility for the institutionalized spouse.

DHS 103.075(5)(b)2. 2. Total countable assets. The agency shall count all available assets belonging to either spouse in the month for which eligibility is being determined except for the following:

DHS 103.075(5)(b)2.a. a. Homestead property;

DHS 103.075(5)(b)2.b. b. One vehicle, regardless of value;

DHS 103.075(5)(b)2.c. c. Household and personal effects, regardless of value;

DHS 103.075(5)(b)2.d. d. Burial assets and funds set aside for the purpose of meeting burial expenses, regardless of value. This includes burial trusts, burial funds, burial plots, burial insurance and other property or funds expressly set aside for burial expenses; and

DHS 103.075(5)(b)2.e. e. Any other assets that would otherwise be excluded for purposes of SSI-related MA eligibility determination as provided under s. DHS 103.06.

DHS 103.075(5)(b)3. 3. Asset limit. The agency shall compare the value of the couple’s assets to the amount obtained by adding the SSI-related one person asset limit under s. 49.47 (4) (b) 3g., Stats., to the community spouse resource allowance under s. 49.455 (6) (b), Stats. If the couple’s available assets are equal to or less than the asset limit, the institutionalized spouse is asset eligible for MA.

DHS 103.075(5)(c) (c) Consideration of community spouse’s assets. During a continuous period of institutionalization after an institutionalized spouse is determined to be eligible for MA, no assets of the community spouse may be considered available to the institutionalized spouse.

DHS 103.075(5)(d) (d) Protected resources.

DHS 103.075(5)(d)1. 1. For the 12 months after an institutionalized spouse has been initially determined eligible for MA, an amount equal to the amount of assets comprising the community spouse resource allowance for which an institutionalized spouse has title interest that does not exceed the limits described in s. 49.455 (6) (b), Stats., shall be exempt from consideration;

DHS 103.075(5)(d)2. 2. After 12 months, the exemption of the protected spousal asset share ceases to exist;

DHS 103.075(5)(d)3. 3. In subsequent redeterminations of eligibility after 12 months, the agency shall compare the assets of an institutionalized spouse to the SSI-related MA asset limit provided under s. 49.47 (4) (b) 3g., Stats. If the institutionalized spouse’s assets exceed those limits, he or she is ineligible for MA.

DHS 103.075(5)(d)4. 4. Limits on countable assets shall be determined as provided in par. (b) 2. as long as there is a community spouse.

DHS 103.075(5)(e) (e) Exceptions to resource ineligibility. The agency may not determine an institutionalized spouse ineligible if one or more of the following conditions exists:

DHS 103.075(5)(e)1. 1. The institutionalized spouse has assigned to the state any rights to support from the community spouse;

DHS 103.075(5)(e)2. 2. The institutionalized spouse lacks the ability to execute an assignment under subd. 1. due to a physical or mental impairment but the agency has the right to bring a support proceeding against the community spouse without an assignment; or

DHS 103.075(5)(e)3. 3. The agency determines and documents in the case record that denial of eligibility would work an undue hardship for the institutionalized spouse. In this subdivision, “undue hardship” means that a serious impairment to the institutionalized individual’s immediate health status exists.

DHS 103.075(6) (6) Income.

DHS 103.075(6)(a) (a) Income attribution.

DHS 103.075(6)(a)1. 1. No income of a community spouse may be deemed available to an institutionalized spouse applying for MA, except if a court order is in effect.

DHS 103.075(6)(a)2. 2. The agency shall count voluntary contributions of a community spouse towards the cost of his or her institutionalized spouse’s care as income in determining an institutionalized spouse’s eligibility and the amount that an institutionalized spouse is required to contribute towards the cost of his or her care. An agency may not request or suggest that a community spouse make a voluntary contribution toward the institutionalized spouse’s cost of care.

DHS 103.075(6)(a)3. 3. Unless an institutionalized spouse establishes by a preponderance of evidence through a fair hearing that ownership interest is other than as provided under s. 49.455 (3) (b), Stats., and this subdivision, non-trust income shall be considered the income of the person in whose name the payment is made or, if the income is paid in both spouses’ names or is unspecified, half shall be considered as the income of each or, if the income is shared with others, amounts equal to each spouse’s proportionate share shall be considered available.

DHS 103.075(6)(a)4. 4. The agency shall consider trust income as available based upon the specific terms of the trust. Income paid to a spouse from the trust belongs to that spouse alone. If trust income is paid to both spouses or if the percentage is unspecified, half of the income shall be considered to belong to each spouse.

DHS 103.075(6)(a)5. 5. The income eligibility standards against which an institutionalized spouse’s income is tested shall be the same as those under s. DHS 103.04 (4).

DHS 103.075(6)(b) (b) Protecting income for the community spouse and dependent family members.

DHS 103.075(6)(b)1. 1. Community spouse income allowance. An MA-eligible institutionalized spouse may allocate income to his or her community spouse to provide for the monthly maintenance of the community spouse. An institutionalized spouse may allocate enough of his or her income, after deducting a personal needs allowance as provided under s. 49.45 (7) (a), Stats., or 42 CFR 435.726 (c) in the case of an institutionalized spouse participating in a home and community-based care waiver program under s. 46.277, Stats., to bring the community spouse’s monthly income up to the amount specified in s. 49.455 (4) (b), Stats., or an amount ordered by a court, whichever is greater. The community spouse’s monthly gross income shall be determined by the agency as provided under s. 49.47 (4) (c), Stats., without regard to the SSI-related MA deductions.

DHS 103.075(6)(b)2. 2. Family member income allowance. An MA-eligible institutionalized spouse may deduct from his or her income, sufficient funds to bring each dependent family member’s monthly income up to the amount specified in s. 49.455 (4) (a) 3., Stats., or an amount ordered by a court, whichever is greater. A dependent family member is:

DHS 103.075(6)(b)2.a. a. Any minor natural or adopted child or step-child of either the institutionalized spouse or the community spouse who resides with the community spouse;

DHS 103.075(6)(b)2.b. b. Any adult natural or adopted child or step-child of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse;

DHS 103.075(6)(b)2.c. c. A sibling of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse; or

DHS 103.075(6)(b)2.d. d. A parent of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse.

DHS 103.075(6)(c) (c) Computing income available towards the cost of care. An institutionalized recipient shall apply his or her available income toward the cost of his or her care. In this paragraph, “available income” means any income remaining after the following deductions are made from the recipient’s gross monthly income:

DHS 103.075(6)(c)1. 1. A personal needs allowance as provided under s. 49.45 (7) (a), Stats., or 42 CFR 435.726 (c), as appropriate;

DHS 103.075(6)(c)2. 2. The community spouse monthly income allowance under par. (b) 1. that is actually made available by the institutionalized spouse to the community spouse or to another individual for the benefit of the community spouse;

DHS 103.075(6)(c)3. 3. The total family member income allowance calculated under par. (b) 2., whether or not actually made available by the institutionalized spouse to a family member; and

DHS 103.075(6)(c)4. 4. The amount incurred as expenses for remedial or medical care for the institutionalized spouse as follows:

DHS 103.075(6)(c)4.a. a. For an individual participating in a community-based care waiver program, the amount incurred as expenses for remedial or medical care and the cost of the individual’s health insurance premiums; and

DHS 103.075(6)(c)4.b. b. For an individual residing in a medical institution, the cost of the institutionalized spouse’s health insurance premiums.

DHS 103.075(7) (7) Notice. The agency shall notify both spouses when it determines that an institutionalized spouse is eligible for MA, or it shall notify the spouse who requested a determination of MA eligibility. The notice shall be in writing and shall include the following information:

DHS 103.075(7)(a) (a) The amount of the community spouse monthly income allowance calculated under sub. (6) (b) 1.;

DHS 103.075(7)(b) (b) The amount of any family allowance calculated under sub. (6) (b) 2;

DHS 103.075(7)(c) (c) The amount of the couple’s total countable assets determined under sub. (4) (c);

DHS 103.075(7)(d) (d) The amount of the community spouse resource allowance and the method used to calculate the allowance under sub. (4) (c) 3.;

DHS 103.075(7)(e) (e) The amount of income that the institutionalized spouse is required to contribute toward the cost of his or her care; and

DHS 103.075(7)(f) (f) Each spouse’s right to a fair hearing under sub. (8) concerning ownership or availability of income or resources and the determination of the community spouse monthly income or resource allowance.

DHS 103.075(8) (8) Fair hearing.

DHS 103.075(8)(a) (a) An institutionalized spouse or a community spouse may request a fair hearing in accordance with the procedures set out in s. DHS 104.01 (5) in regard to any of the following:

DHS 103.075(8)(a)1. 1. The determination of the community spouse monthly income allowance under sub. (6) (b) 1.;

DHS 103.075(8)(a)2. 2. The determination of the amount of the monthly income otherwise available to the community spouse used in the calculation under sub. (6) (b) 1.;

DHS 103.075(8)(a)3. 3. The amount of the couple’s total countable assets determined under sub. (4) (c);

DHS 103.075(8)(a)4. 4. The determination of the spousal share of resources under sub. (4) (c) 3.; and

DHS 103.075(8)(a)5. 5. The determination of the community spouse resource allowance under sub. (4) (c) 3.

DHS 103.075(8)(b) (b) If the institutionalized spouse has made an application for MA and a fair hearing is requested under par. (a), the agency shall hold the hearing within 30 days after the request.

DHS 103.075(8)(c) (c) If either spouse establishes at a fair hearing that, due to exceptional circumstances resulting in financial duress, the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance determined under sub. (6) (b), the hearing officer shall determine an amount adequate to provide for the community spouse’s needs. In this paragraph,“exceptional circumstances resulting in financial duress” means situations that result in the community spouse not being able to provide for his or her own necessary and basic maintenance needs. The agency shall use the amount determined by the hearing officer in place of the minimum monthly maintenance needs allowance determined under sub. (6) (b).

DHS 103.075(8)(d) (d) If either spouse establishes at a fair hearing that the community spouse resource allowance determined by the agency under sub. (4) (c) 3. does not generate enough income to raise the community spouse’s income to the minimum monthly maintenance needs allowance under s. 49.455 (4) (c), Stats., the hearing officer shall establish an amount to be used under sub. (5) (b) that results in a community spouse resource allowance that generates sufficient income to raise the community spouse’s monthly income to the minimum monthly maintenance needs allowance under s. 49.455 (4) (c), Stats.

DHS 103.075(8)(e) (e) Neither the institutionalized spouse nor the community spouse shall have the right to a fair hearing under this section until after an MA application is filed and MA eligibility and the benefit level are determined.

DHS 103.075 History History: Cr. Register, March, 1993, No. 447, eff. 4-1-93; correction in (8) (a) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 103.08 DHS 103.08 Beginning of eligibility.

DHS 103.08(1) (1) Date. Except as provided in subs. (2) to (5), eligibility shall begin on the date on which all eligibility requirements were met, but no earlier than the first day of the month 3 months prior to the month of application. Retroactive eligibility of up to 3 months may occur even though the applicant is found ineligible in the month of application.

DHS 103.08(2) (2) Spend-down period.

DHS 103.08(2)(a) (a)

DHS 103.08(2)(a)1. 1. The spend-down period shall begin on the first day of the month in which all eligibility factors except income were met, but no earlier than the first day of the month 3 months prior to the month of application. However, at the recipient’s option, it may begin on the first day of any of the 3 months prior to the date of application if all eligibility factors, except income, were met in that month. A recipient’s decision to choose an optional beginning date shall be recorded in the agency’s case record. For persons who previously received MA and then reapply, the spend-down period cannot cover the time during which they were receiving MA.

DHS 103.08(2)(a)2. 2. The BadgerCare Plus-related or SSI-related MA group shall be eligible as of the date within the spend-down period on which the expenditure of excess income or the obligation to expend excess income is achieved.

DHS 103.08(2)(a)3. 3. The applicant shall be responsible for some bills or parts of bills for services received on the first day of eligibility if there is remaining unspent and unobligated excess income on that day.

DHS 103.08(2)(b) (b) If the amount of the monthly excess income changes before the expenditure or obligation of excess income is achieved, the expenditure or obligation of excess income for the remainder of the 6–month period shall be recalculated. When the size of the BadgerCare Plus -related or SSI-related MA group changes, the monthly income limit shall be adjusted appropriately to the size of the new group, and the amount of excess income to be expended or obligated shall be adjusted accordingly. If any change is reported that may affect eligibility, the eligibility of the entire BadgerCare Plus-related or SSI-related MA group may be redetermined and, if there is determined to be excess income, a new spend–down period shall be established.

DHS 103.08(2)(c) (c)

DHS 103.08(2)(c)1. 1. Once the expenditure or obligation of excess income has been achieved, the BadgerCare Plus-related or SSI-related MA group shall be eligible for the balance of the 6–month spend–down period, unless it is determined that assets have increased enough to make the MA group ineligible, or that a change in circumstances has caused someone in the MA group to become ineligible for non-financial reasons.

DHS 103.08(2)(c)2. 2. If the entire group is determined ineligible, the MA benefits shall be discontinued with proper notice. If only one person in the MA group is determined ineligible for non-financial reasons, only that person’s BadgerCare Plus-related or SSI-related MA benefits shall, with proper notice, be discontinued. The other person or persons in the MA group continue their eligibility until the end of the 6–month period.

DHS 103.08(2)(c)3. 3. If the size of the MA group increases due to the addition of a child, that child is eligible for benefits during the rest of the spend–down period. An adult caretaker who enters the BadgerCare Plus-related or SSI-related MA group, except a woman who is medically verified as pregnant or a person who is SSI–related, is not eligible for benefits during the remainder of the spend–down period.

DHS 103.08(3) (3) Presumptive disability cases. If, in a presumptive disability case, the applicant meets all other conditions for eligibility, MA benefits shall begin on the date the presumptive disability finding is made and shall continue at least until the official disability determination is completed. Presumptive disability eligibility shall not be granted retroactively. MA benefits based on presumptive disability shall not be continued pending an appeal of a negative official disability determination.