Chapter 49

49.195(3n)(d)1. 1. Any debtor who fails or refuses to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.

49.195(3n)(d)2. 2. Any 3rd party who fails to surrender any property or rights to property subject to levy, upon demand of the department, is subject to proceedings to enforce the levy. The 3rd party is not liable to the department under this subdivision for more than 25 percent of the debt. The department shall serve the levy as provided under par. (m) on any 3rd party who fails to surrender property under this subdivision. Proceedings may not be initiated by the department until 5 days after service of the demand.

49.195(3n)(d)3. 3. When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the debtor with respect to the property or rights to the property arising from the surrender or payment to the department.

49.195(3n)(e) (e)

49.195(3n)(e)1. 1. If the department has levied upon property, any person, other than the debtor who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under subd. 2.

49.195(3n)(e)2. 2. In an action under subd. 1., if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.

49.195(3n)(e)3. 3. For purposes of an adjudication under this paragraph, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.

49.195(3n)(f) (f) The department shall determine its costs and expenses to be paid in all cases of levy.

49.195(3n)(g) (g)

49.195(3n)(g)1. 1. The department shall apply all money obtained under this subsection first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the debtor.

49.195(3n)(g)2. 2. The department may refund or credit any amount left after the applications under subd. 1., upon submission of a claim for that amount and satisfactory proof of the claim, to the person entitled to that amount.

49.195(3n)(h) (h) The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy, but that release does not prevent any later levy.

49.195(3n)(j) (j) If the department determines that property has been wrongfully levied upon, the department may return the property at any time, or may return an amount of money equal to the amount of money levied upon.

49.195(3n)(k) (k) Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized under this subsection with intent to evade or defeat the assessment or collection of any debt is guilty of a Class H felony and shall be assessed the costs of prosecution.

49.195(3n)(L) (L) If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal or petitioning for review has expired, the department shall make a demand to the debtor for payment of the debt that is subject to levy and give notice that the department may pursue legal action for collection of the debt against the debtor. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service that requires a signature of acceptance, at the address of the debtor as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including interest and penalties, and the name of the debtor who is liable for the debt. The debtor’s refusal or failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same debtor within one year of the date of service of the original levy.

49.195(3n)(m) (m)

49.195(3n)(m)1. 1. The department shall serve the levy upon the debtor and 3rd party by personal service or by any type of mail service that requires a signature of acceptance.

49.195(3n)(m)2. 2. Personal service shall be made upon an individual, other than a minor or incapacitated person, by delivering a copy of the levy to the debtor or 3rd party personally; by leaving a copy of the levy at the debtor’s dwelling or usual place of abode with some person of suitable age and discretion residing there; by leaving a copy of the levy at the business establishment with an officer or employee of the establishment; or by delivering a copy of the levy to an agent authorized by law to receive service of process.

49.195(3n)(m)3. 3. The department representative who serves the levy shall certify service of process on the notice of levy form and the person served shall acknowledge receipt of the certification by signing and dating it. If service is made by mail, the return receipt is the certificate of service of the levy.

49.195(3n)(m)4. 4. The debtor’s or 3rd party’s failure to accept or receive service of the levy does not invalidate the levy.

49.195(3n)(n) (n) Within 20 days after the service of the levy upon a 3rd party, the 3rd party shall file an answer with the department stating whether the 3rd party is in possession of or obligated with respect to property or rights to property of the debtor, including a description of the property or the rights to property and the nature and dollar amount of any such obligation.

49.195(3n)(p) (p) A levy is effective from the date on which the levy is first served on the 3rd party until the liability out of which the levy arose is satisfied or until the levy is released, whichever occurs first.

49.195(3n)(q) (q)

49.195(3n)(q)1. 1. The debtor is entitled to an exemption from levy of the greater of the following:

49.195(3n)(q)1.a. a. A subsistence allowance of 75 percent of the debtor’s disposable earnings then due and owing.

49.195(3n)(q)1.b. b. An amount equal to 30 times the federal minimum hourly wage for each full week of the debtor’s pay period; or, in the case of earnings for a period other than a week, a subsistence allowance computed so that it is equivalent to that amount using a multiple of the federal minimum hourly wage prescribed by the department by rule.

49.195(3n)(q)2. 2. The first $1,000 of an account in a depository institution is exempt from any levy to recover a benefit overpayment.

49.195(3n)(r) (r) No employer may discharge or otherwise discriminate with respect to the terms and conditions of employment against any employee by reason of the fact that his or her earnings have been subject to levy for any one levy or because of compliance with any provision of this subsection. Any person who violates this paragraph is guilty of a Class I felony.

49.195(3n)(s) (s) Any debtor who is subject to a levy proceeding made by the department has the right to appeal the levy proceeding under ch. 227. The appeal is limited to questions of prior payment of the debt that the department is proceeding against and mistaken identity of the debtor. The levy is not stayed pending an appeal in any case where property is secured through the levy.

49.195(3n)(t) (t) Any 3rd party is entitled to a levy fee of $5 for each levy in any case in which property is secured through the levy. If the 3rd party retains the fee, the 3rd party shall increase the levy amount by the amount of the fee and deduct the fee from the proceeds of the levy.

49.195(3p) (3p) The availability of the remedies under subs. (3m) and (3n) does not abridge the right of the department to pursue other remedies.

49.195(3r) (3r) The department may contract with or employ a collection agency or other person to enforce a repayment obligation of a person who is found liable under sub. (3) who is delinquent in making repayments.

49.195(3s) (3s) The department shall specify by rule when requests for reviews, hearings and appeals under this section may be made and the process to be used for the reviews, hearings and appeals. In promulgating the rules, the department shall provide for a hearing or review after a warrant under sub. (3m) has been issued and before the warrant has been executed, before property is levied under sub. (3m) or (3n) and after levied property is seized and before it is sold. The department shall specify by rule the time limit for a request for review or hearing. The department shall also specify by rule a minimum amount that must be due before collection proceedings under this section may be commenced.

49.195(4) (4) 

49.195(4)(a) (a) Except as provided in par. (b), any county or governing body of a federally recognized American Indian tribe may retain 15 percent of benefits distributed under s. 49.19 that are recovered due to the efforts of an employee or officer of the county or tribe.

49.195(4)(b) (b) This subsection does not apply to any of the following:

49.195(4)(b)1. 1. The recovery of benefits that were provided as a result of state, county, or tribal governing body error.

49.195(4)(b)2. 2. The recovery of benefits due to the efforts of an employee or officer of a county having a population of 750,000 or more under the supervision of the department.

49.195 History History: 1977 c. 29; 1981 c. 93, 317; 1983 a. 27; 1985 a. 29; 1985 a. 332 s. 251 (1); 1987 a. 27, 307; 1989 a. 31, 96, 173; 1993 a. 16; 1995 a. 27, 289; 1997 a. 27; 1999 a. 9, 185; 2001 a. 109; 2005 a. 25; 2007 a. 20; 2009 a. 28; 2015 a. 55, 172.

49.195 Cross-reference Cross-reference: See also ch. DCF 201, Wis. adm. code.

49.195 Annotation The words “both prior to and” in sub. (2) constitute an unconstitutional enactment and are stricken from the statute. Milwaukee County v. Walther, 66 Wis. 2d 535, 225 N.W.2d 644 (1975).

49.195 Annotation Recovery may be had only from a parent who immediately received aid. Richland County Department of Social Services v. McHone, 95 Wis. 2d 108, 288 N.W.2d 879 (Ct. App. 1980).

49.195 Annotation This section does not authorize recovery against a child with a guardianship account if the child never applied for, directly received, or made representations to obtain aid. There may be common-law authority for a claim against a guardianship estate. Kenosha County Department of Social Services v. Kenosha National Bank, 95 Wis. 2d 275, 290 N.W.2d 693 (1980).

49.197 49.197 Fraud investigation and reduction and error reduction.

49.197(1m) (1m) Fraud investigation. From the appropriations under s. 20.437 (2) (dz), (kx), (L), (mc), (md), (me), and (nL), the department shall establish a program to investigate suspected fraudulent activity on the part of recipients of aid to families with dependent children under s. 49.19, on the part of participants in the Wisconsin Works program under ss. 49.141 to 49.161, and, if the department of health services contracts with the department under sub. (5), on the part of recipients of medical assistance under subch. IV, food stamp benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, and health care benefits under the Badger Care health care program under s. 49.665. The department’s activities under this subsection may include, but are not limited to, comparisons of information provided to the department by an applicant and information provided by the applicant to other federal, state, and local agencies, development of an advisory welfare investigation prosecution standard, and provision of funds to county departments under ss. 46.215, 46.22, and 46.23 or multicounty consortia, as defined in s. 49.78 (1) (br), and to Wisconsin Works agencies to encourage activities to detect fraud. The department shall cooperate with district attorneys regarding fraud prosecutions.

49.197(2) (2) Incentive program for local fraud detection.

49.197(2)(a) (a) In this subsection:

49.197(2)(a)1. 1. “County department” means a county department under s. 46.22 or 46.23.

49.197(2)(a)2. 2. “Subsidy program” means the child care subsidy program under s. 49.155.

49.197(2)(a)3. 3. “Tribal governing body” means an elected governing body of a federally recognized American Indian tribe.

49.197(2)(b) (b)

49.197(2)(b)1. 1. Subject to subd. 2., the department shall by rule establish an incentive program that, using moneys from the allocation under s. 49.175 (1) (p), rewards county departments, Wisconsin Works agencies, and tribal governing bodies that administer the subsidy program for identifying fraud in the subsidy program. The rules shall specify that a county department, Wisconsin Works agency, or tribal governing body shall receive, for identifying fraudulent activity under the subsidy program on the part of a child care provider, an amount equal to the average monthly subsidy payment per child during the prior fiscal year, multiplied by the number of children participating in the subsidy program for whom the provider provides care, multiplied by 1.5 months. A county department, Wisconsin Works agency, or tribal governing body may use payments received under this subsection for any purpose for which moneys under the Temporary Assistance for Needy Families block grant program may be used under federal law.

49.197(2)(b)2. 2. No later than January 1, 2012, the department shall submit its plan for the incentive program to the cochairpersons of the joint committee on finance for review by the committee. If the cochairpersons of the committee do not notify the department that the committee has scheduled a meeting for the purpose of reviewing the proposed plan within 14 working days after the date of the department’s submittal, the department shall promulgate the rules for the incentive program in accordance with its proposed plan. If, within 14 working days after the date of the department’s submittal, the cochairpersons of the committee notify the department that the committee has scheduled a meeting for the purpose of reviewing the proposed plan, the department may not promulgate the rules for the incentive program unless the committee approves the proposed plan. If the committee modifies and approves the proposed plan, the department may promulgate the rules for the incentive program only as modified by the committee.

49.197(3) (3) State error reduction activities. The department shall conduct activities to reduce payment errors in Wisconsin Works under ss. 49.141 to 49.161 and, if the department of health services contracts with the department under sub. (5), the Medical Assistance program under subch. IV, the food stamp program under 7 USC 2011 to 2036, the supplemental security income payments program under s. 49.77, the program providing payments for the support of children of supplemental security income recipients under s. 49.775, and the Badger Care health care program under s. 49.665.

49.197(4) (4) County and tribal error reduction. If the department of health services contracts with the department under sub. (5), the department shall provide funds from the appropriation under s. 20.437 (2) (kx) to counties, multicounty consortia, as defined in s. 49.78 (1) (br), and governing bodies of federally recognized American Indian tribes administering Medical Assistance under subch. IV, the food stamp program under 7 USC 2011 to 2036, the supplemental security income payments program under s. 49.77, the program providing payments for the support of children of supplemental security income recipients under s. 49.775, and the Badger Care health care program under s. 49.665 to offset administrative costs of reducing payment errors in those programs.

49.197(5) (5) Contracts for medical assistance, food stamps, supplemental security income, and caretaker supplement. Notwithstanding s. 49.845 (1) and (2), the department of health services may contract with the department to investigate suspected fraudulent activity on the part of recipients of medical assistance under subch. IV, food stamp benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, and health care benefits under the Badger Care health care program under s. 49.665 and to conduct activities to reduce payment errors in the Medical Assistance program under subch. IV, the food stamp program under 7 USC 2011 to 2036, the supplemental security income payments program under s. 49.77, the program providing payments for the support of children of supplemental security income recipients under s. 49.775, and the Badger Care health care program under s. 49.665, as provided in this section.

49.197(6) (6) Reporting of suspected fraudulent activity.

49.197(6)(a) (a)

49.197(6)(a)1. 1. If any employee of the department, a county, or a tribal governing body reasonably suspects that fraudulent activity as described in sub. (1m) or (2) (b) has occurred or is occurring, the employee shall immediately report the facts and circumstances contributing to that suspicion to the employee’s immediate supervisor.

49.197(6)(a)2. 2. An immediate supervisor who receives a report under subd. 1. shall immediately evaluate the report to determine whether there is reason to suspect that the fraudulent activity has occurred or is occurring. If the immediate supervisor determines that there is reason to suspect that the fraudulent activity has occurred or is occurring, the immediate supervisor shall immediately report the facts and circumstances contributing to that suspicion to the unit of the department that is responsible for investigating suspected fraudulent activity under sub. (1m). If the immediate supervisor is an employee of the department or of a county having a population of 145,000 or more, the immediate supervisor shall also immediately report those facts and circumstances to the sheriff.

49.197(6)(a)3. 3. Except as provided in subd. 2., an immediate supervisor who receives a report under subd. 1. shall keep the identity of the reporter confidential. A sheriff or unit of the department that receives a report under subd. 2. shall keep the identity of the employee reporting under subd. 1. and the immediate supervisor reporting under subd. 2. confidential until the sheriff or unit determines that the report merits further investigation. If the sheriff or unit conducts a full investigation, the sheriff or unit shall keep the identity of that employee and immediate supervisor confidential if it is reasonably possible to do so. Any person who fails to report as required in subd. 1. or 2. may be required to forfeit not more than $1,000.

49.197(6)(b) (b) Any person participating in good faith in the making of a report under par. (a) 1. or 2. or in initiating, participating in, or testifying in, any action or proceeding in which fraudulent activity as described in sub. (1m) or (2) (b) is alleged shall have immunity from any liability, civil or criminal, that results by reason of the action. For the purpose of any proceeding, civil or criminal, the good faith of any person reporting under par. (a) 1. or 2. shall be presumed.

49.197(6)(c) (c) The department, a county, a tribal governing body, or an employee of the department, a county, or a tribal governing body may not take disciplinary action against, or threaten to take disciplinary action against, any person because the person in good faith reported any information under par. (a) 1. or 2. or initiated, participated in, or testified in, any action or proceeding in which fraudulent activity described in sub. (1m) or (2) (b) was alleged or because the department, county, tribal governing body, or employee believes that the person in good faith reported any information under par. (a) 1. or 2. or initiated, participated in, or testified in, such an action or proceeding.

49.197(6)(d) (d) Any person who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of par. (c) may file a complaint with the department of workforce development under s. 106.54 (9). If that department finds that a violation of par. (c) has been committed, that department may take such action under s. 111.39 as will effectuate the purpose of this section. Section 111.322 (2m) applies to a disciplinary action arising in connection with any proceeding under this paragraph.

49.197 History History: 1985 a. 29, 176; 1987 a. 27, 413; 1989 a. 31; 1991 a. 39; 1995 a. 27, 289; 1997 a. 27, 35; 2001 a. 16; 2005 a. 25; 2007 a. 20 ss. 1465 to 1466, 9121 (6) (a); 2009 a. 28, 76; 2011 a. 32.

49.22 49.22 Child and spousal support; establishment of paternity; medical liability.

49.22(1) (1) There is created a child and spousal support and establishment of paternity and medical support liability program in the department. The purpose of this program is to establish paternity when possible, to establish or modify support obligations, to enforce support obligations owed by parents to their children and maintenance obligations owed to spouses or former spouses with whom the children reside in this state or owed in other states if the support order was issued in this state or owed in other states if the parent, spouse, or former spouse resides in this state, to locate persons who are alleged to have taken their child in violation of s. 948.31 or of similar laws in other states, and to locate and value property of any person having a support duty. To accomplish the objectives of this program and of other assistance programs under this chapter, county and state agencies will cooperate with one another to implement a child and spousal support and paternity establishment and medical support liability program in accordance with state and federal laws, regulations, and rules and to assure proper distribution of benefits of all assistance programs authorized under this chapter.

49.22(2) (2) The department shall constitute the state location service which shall assist in locating parents who have deserted their children and other persons liable for support of dependents or persons who are alleged to have taken their child in violation of s. 948.31 or of similar laws in another state, and in locating and valuing property of any person having a support duty.

49.22(2m) (2m) 

49.22(2m)(a) (a) The department may request from any person in this state information it determines appropriate and necessary for the administration of this section, ss. 49.141 to 49.161, 49.19, 49.46, 49.468, 49.47, and 49.471 and programs carrying out the purposes of 7 USC 2011 to 2029. Unless access to the information is prohibited or restricted by law, or unless the person has good cause, as determined by the department in accordance with federal law and regulations, for refusing to cooperate, the person shall make a good faith effort to provide this information within 7 days after receiving a request under this paragraph. Except as provided in subs. (2p) and (2r) and subject to sub. (12), the department or the county child support agency under s. 59.53 (5) may disclose information obtained under this paragraph only in the administration of this section, ss. 49.141 to 49.161, 49.19, 49.46, 49.47, and 49.471 and programs carrying out the purposes of 7 USC 2011 to 2029. Employees of the department or a county child support agency under s. 59.53 (5) are subject to s. 49.83.

49.22(2m)(am) (am) In conjunction with any request for information under par. (a), including a request made by subpoena under par. (b), the department or county child support agency under s. 59.53 (5) shall advise the person of the time by which the information must be provided and of any consequences to the person under par. (d) that may result from a failure to respond or comply with the request.

49.22(2m)(b) (b) The department or county child support agency under s. 59.53 (5) may issue a subpoena, in substantially the form authorized under s. 885.02, to compel the production of financial information and other documentary evidence in the administration of this section, ss. 49.145, 49.19, 49.46, 49.47, and 49.471 and programs carrying out the purposes of 7 USC 2011 to 2029.

49.22(2m)(bc) (bc) A person in this state shall comply with an administrative subpoena that is issued from another state to compel the production of financial information or other documentary evidence for purposes comparable to those specified in par. (b).

49.22(2m)(c) (c) A person is not liable to any person for any of the following:

49.22(2m)(c)1. 1. Allowing access to financial or other records by the department or a county child support agency under s. 59.53 (5) in response to a request under par. (a) or a subpoena described in par. (bc).

49.22(2m)(c)2. 2. Disclosing information from financial or other records to the department or a county child support agency under s. 59.53 (5) in response to a request under par. (a) or a subpoena described in par. (bc).

49.22(2m)(c)3. 3. Any other action taken in good faith to comply with this section or a subpoena described in par. (bc) or to comply with a request for information or access to records from the department or a county child support agency under s. 59.53 (5) in the administration of this section, ss. 49.145, 49.19, 49.46, 49.47, and 49.471 and programs carrying out the purposes of 7 USC 2011 to 2029.

49.22(2m)(d) (d) Any person who fails to respond to or comply with a subpoena described in par. (bc) or a request under par. (a) by the department or a county child support agency under s. 59.53 (5) may be required to pay a forfeiture in an amount determined by the department by rule.

49.22(2p) (2p) Except as provided in sub. (12), the department or a county child support agency under s. 59.53 (5) may disclose to a parent with legal custody of a child, upon the parent’s request, the last-known address, and the name and address of the last-known employer, of the child’s other parent if that other parent owes a support obligation to the child and is in arrears in the payment of the support.

49.22(2r) (2r) The department or a county child support agency under s. 59.53 (5) may, to the extent permitted under federal law, disclose information obtained under sub. (2m) to the department of revenue for the purposes of locating persons, or the assets of persons, who have failed to file tax returns, who have underreported their taxable income or who are delinquent taxpayers, identifying fraudulent tax returns or providing information for tax-related prosecutions.

49.22(3) (3) The department, acting as a state location service, shall furnish all services under sub. (2) to any similarly appointed agency of another state which by its laws is authorized to furnish such services to this state or its agencies.

49.22(3m) (3m) The department, acting as a state location service, shall furnish services under sub. (2) upon request to the department of health services, a county department under s. 46.215, 46.22 or 46.23 or a child welfare agency that is administering a program operated under 42 USC 620 to 628b or 42 USC 670 to 679a.

49.22(4) (4) Except as provided in this section, no person may use or disclose information obtained by the state location service. Any person violating this subsection may be fined not less than $25 nor more than $500 or imprisoned for not more than one year in the county jail or both.

49.22(6) (6) The department shall establish, pursuant to federal and state laws, rules and regulations, a uniform system of fees for services provided under this section to individuals not receiving aid under s. 48.645, 49.19, 49.47, or 49.471; benefits under s. 49.148, 49.155, or 49.79; foster care maintenance payments under 42 USC 670 to 679a; or kinship care payments under s. 48.57 (3m) or long-term kinship care payments under s. 48.57 (3n). The system of fees may take into account an individual’s ability to pay. Any fee paid and collected under this subsection may be retained by the county providing the service except for the fee specified in 42 USC 653 (e) (2) for federal parent locator services.

49.22(7) (7) The department may represent the state in any action to establish paternity or to establish or enforce a support or maintenance obligation. The department may delegate its authority to represent the state in any action to establish paternity or to establish or enforce a support or maintenance obligation under this section to an attorney responsible for support enforcement under s. 59.53 (6) (a) pursuant to a contract entered into under s. 59.53 (5). The department shall ensure that any such contract is for an amount reasonable and necessary to assure quality service. The department may, by such a contract, authorize a county to contract with any attorney, collection agency or other person to collect unpaid child support or maintenance. If a county fails to fully implement the programs under s. 59.53 (5), the department may implement them and may contract with any appropriate person to obtain necessary services. The department shall establish a formula for disbursing funds appropriated under s. 20.437 (2) (md) to carry out a contract under this subsection.

49.22(7g) (7g) The department shall provide all of the following:

49.22(7g)(a) (a) Training to hospital staff members concerning the acknowledgment that is prescribed by the state registrar under s. 69.15 (3) (b) 3. and concerning the significance and benefits of, and alternatives to, of establishing paternity.

49.22(7g)(b) (b) The written information that is required to be provided to parents under s. 69.14 (1) (cm).

49.22(7m) (7m) The department may contract with or employ a collection agency or other person to enforce a support obligation of a parent who is delinquent in making support payments and may contract with or employ an attorney to appear in an action in state or federal court to enforce such an obligation. To pay for the department’s administrative costs of implementing this subsection, the department may charge a fee to counties, use federal matching funds or funds retained by the department under s. 49.24 (2) (c), or use up to 30 percent of this state’s share of a collection made under this subsection on behalf of a recipient of aid to families with dependent children or a recipient of kinship care payments under s. 48.57 (3m) or long-term kinship care payments under s. 48.57 (3n).