Wisconsin Legislature: DHS 103.075(6)(b)2.a.

(b) Eligibility determination.

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.

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:

a. Homestead property;

b. One vehicle, regardless of value;

c. Household and personal effects, regardless of value;

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

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

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.

(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.

(d) Protected resources.

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;

2. After 12 months, the exemption of the protected spousal asset share ceases to exist;

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.

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

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

1. The institutionalized spouse has assigned to the state any rights to support from the community spouse;

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

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.

(6) Income.

(a) Income attribution.

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.

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.

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.

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.

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).

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

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.

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:

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;

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;

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

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.

(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:

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

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;

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

4. The amount incurred as expenses for remedial or medical care for the institutionalized spouse as follows:

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

b. For an individual residing in a medical institution, the cost of the institutionalized spouse’s health insurance premiums.

(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:

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

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

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

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

(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.

(8) Fair hearing.

(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:

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

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.;

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

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

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

(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.

(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).

(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.

(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.

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 Beginning of eligibility.

(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.

(2) Spend-down period.

(a)

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.

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.

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.

(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.

(c)

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.

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.

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.

(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.

(4) Pregnancy-related MA cases. For pregnancy-related cases pursuant to ss. 49.46 (1) (a) 1m. and 9. and 49.47 (4) (ag) 2. and (am) 1., Stats., eligibility shall begin on the date pregnancy is verified or the date of application, whichever is earlier, but eligibility may only be backdated as provided under sub. (1).

(5) BadgerCare cases. Eligibility for BadgerCare shall begin on the first day of the month in which all eligibility requirements are met, but no earlier than the first day of the month of application.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; am. (4), Register, March, 1993, No. 447, eff. 4-1-93; emerg. am. (1), (2) (a) 2., (b) and (c), eff. 7-1-99; am. (1), (2) (a) 2., (b) and (c) and cr. (5), Register, March, 2000, No. 531, eff. 4-1-00; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 21-067: am. (2) (c) 1., 2. Register March 2022 No. 795, eff. 4-1-22, am. (2) (c) 1., 2. eff.the first day of the month after the emergency period, as defined in 42 USC 1320b-5 (g) (1) (B) and declared in response to the COVID-19 pandemic, ends; correction in (2) (c) 2. made under s. 35.17, Stats., Register March 2022 No. 795; CR 23-046: am. (2) (a) 2., (b), (c) Register April 2024 No. 820, eff. 5-1-24.

DHS 103.085 Conditions for continuation of eligibility for BadgerCare Plus.

(1) Premiums.

(a) Authority. Subject to s. 49.471 (10) (b) 2., Stats., and this section, a child under the age of 19 eligible for BadgerCare Plus may be required to pay a premium.

(b) Applicability.

1. A child under age 19 eligible for BadgerCare Plus with budgetable income at or below 201% of the poverty line is not required to pay a premium toward the cost of the health care coverage.

2. Except as provided in subd. 3., 4., or 5., a child under age 19 eligible for BadgerCare Plus with budgetable income above 201% of the poverty line shall pay a premium toward the cost of the health care coverage.

3. A BadgerCare Plus applicant group does not owe a premium for the first month of BadgerCare Plus unless a member of the BadgerCare Plus fiscal test group was an MA recipient in the previous month.

4. A BadgerCare Plus applicant group does not owe a premium for the first month of BadgerCare Plus unless a member of the BadgerCare Plus fiscal test group was a BadgerCare Plus recipient in the previous 12 months.

5. A child under the age of 19 shall not be required to pay a premium if any of the following apply:

a. The child is a Native American or an Alaskan Native.

b. The child is under age 1.

c. The child is pregnant.

d. The child is eligible under s. 49.471 (4) (a) 5., Stats.

e. The child is eligible under s. 49.471 (4) (a) 7., Stats.