Chapter 49

49.45 Annotation Section 49.89, not sub. (19) (a) 2., specifically addresses assignment of actions and subrogation of rights by a public assistance recipient who is injured and has a tort claim against a third party. Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, 98-0294.

49.45 Annotation Sub. (7) (a) requires that a health care facility resident who is a recipient of certain funds apply those funds toward the cost of care in the health care facility. The agent who receives funds from the federal Social Security Administration on behalf of the resident has an obligation to pay the funds to the health care facility and is subject to an action for conversion. Methodist Manor of Waukesha, Inc. v. Martin, 2002 WI App 130, 255 Wis. 2d 707, 647 N.W.2d 409, 01-2877.

49.45 Annotation Medical assistance eligibility is not a default position that the Department of Health and Family Services must rebut, but a privilege for which the applicant must prove eligibility. An initial determination of eligibility does not preclude a later redetermination of that status. The state has an ongoing duty to ensure that a medical assistance recipient is eligible, and the recipient bears the ongoing burden of proving eligibility. Estate of Gonwa v. DHFS, 2003 WI App 152, 265 Wis. 2d 913, 668 N.W.2d 122, 02-2901.

49.45 Annotation Sub. (2) (a) 9. does not direct the Department of Health and Family Services to promulgate rules regarding conditions of reimbursement, but instead to include those conditions in a contract with the provider. A department handbook provision requiring odometer readings is a condition of reimbursement, not an administrative rule requiring promulgation. Meda-Care Vans of Waukesha, Inc. v. Division of Hearings & Appeals, 2007 WI App 140, 302 Wis. 2d 499, 736 N.W.2d 147, 05-2979.

49.45 Annotation Medicaid reimbursement is governed by the “Methods of Implementation for Wisconsin Medicaid Nursing Home Payment Rates” adopted by the Department of Health and Family Services (DHFS) under sub. (6m). Sub. (6m) (e) requires DHFS to establish an appeals mechanism within DHFS to review petitions for modifications to any payment under sub. (6m). The “Methods” provides that the nursing home appeals board is available for redress in the event a facility has extraordinary fiscal circumstances. DHFS does not have the authority to grant an increased reimbursement rate absent appeals board approval. Park Manor, Ltd. v. DHFS, 2007 WI App 176, 304 Wis. 2d 512, 737 N.W.2d 88, 06-2311.

49.45 Annotation Sub. (3) (f) gives the Department of Health Services (DHS) the authority to recoup payments made to a Medicaid provider when that provider failed to maintain records as required by DHS for verification of the provider’s claims, regardless of whether other records possessed by the provider show that the provider actually rendered the services in question. In this case, the records were not required, so DHS could not recoup payments. Newcap, Inc. v. Department of Health Services, 2018 WI App 40, 383 Wis. 2d 515, 916 N.W.2d 173, 17-1432.

49.45 Annotation When read together, sub. (3) (f) 1. and 2. make it clear that a provider has an obligation to make the required records available to the Department of Health Services (DHS) at the time of an audit in order to allow DHS to verify the provider’s claims, and DHS may recoup payments already made if the provider fails to do so. Newcap, Inc. v. Department of Health Services, 2018 WI App 40, 383 Wis. 2d 515, 916 N.W.2d 173, 17-1432.

49.45 Annotation The fact that this section does not address testamentary trusts is not an indication the legislature gave consideration to whether payments from testamentary trusts should be included as unearned income for medical assistance eligibility purposes and concluded to the contrary. Tarrant v. Department of Health Services, 2019 WI App 45, 388 Wis. 2d 461, 933 N.W.2d 145, 18-1299.

49.45 Annotation Under sub. (3) (f) 1. and 2., the Department of Health Services (DHS) may recoup Medicaid payments from service providers only in cases in which DHS cannot verify one of the following: 1) the actual provision of covered services; 2) that the reimbursement claim is appropriate for the service provided; or 3) that the reimbursement claim is accurate for the service provided. A record imperfection alone is not an independent basis for recouping payments. DHS’s practice of seeking recoupment of payments simply because a post-payment audit found that records were not perfect exceeded DHS’s recoupment authority. Papa v. Department of Health Services, 2020 WI 66, 393 Wis. 2d 1, 946 N.W.2d 17, 16-2082.

49.45 Annotation A contract between the trustees of a nursing home and a medical clinic for exclusive medical services under the medical assistance act for residents of such home violates public policy of this state. 59 Atty. Gen. 68.

49.45 Annotation Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Discussing medical assistance. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).

49.45 Annotation Medical Assistance & Divestment. Canellos. Wis. Law. Aug. 1991.

49.452 49.452 Counting promissory notes as assets for certain Medical Assistance programs.

49.452(1) (1) In this section, “promissory note” means a written, unconditional agreement, given in return for goods, money loaned, or services rendered, under which one party promises to pay another party a specified sum of money at a specified time or on demand.

49.452(2) (2) If an individual’s assets are counted when determining or redetermining the individual’s financial eligibility for Medical Assistance, the department shall include a promissory note as a countable asset if all of the following apply:

49.452(2)(a) (a) The individual applying for or receiving benefits under Medical Assistance or his or her spouse provided the goods, money loaned, or services rendered for the promissory note.

49.452(2)(b) (b) The promissory note was entered into or purchased on or after July 14, 2015.

49.452(2)(c) (c) The promissory note is negotiable, assignable, and enforceable and does not contain any terms making it unmarketable.

49.452(3) (3) A promissory note is presumed to be negotiable and its asset value is the outstanding principal balance at the time the individual applies for Medical Assistance or at the time the individual’s eligibility for Medical Assistance is redetermined, unless the individual shows by credible evidence from a knowledgeable source that the note is nonnegotiable or has a different current market value, which will then be considered the asset value.

49.452 History History: 2015 a. 55.

49.453 49.453 Divestment of assets.

49.453(1) (1) Definitions. In this section and in s. 49.454:

49.453(1)(a) (a) “Assets” has the meaning given in 42 USC 1396p (h) (1).

49.453(1)(am) (am) “Covered individual” means an individual who is an institutionalized individual or a noninstitutionalized individual.

49.453(1)(ar) (ar) “Community spouse” means the spouse of either the institutionalized person or the noninstitutionalized person.

49.453(1)(b) (b) “Disabled” has the meaning given in 42 USC 1382c (a) (3).

49.453(1)(c) (c) “Expected value of the benefit” means the amount that an irrevocable annuity will pay to the annuitant during his or her expected lifetime as determined under sub. (4) (c).

49.453(1)(d) (d) “Income” has the meaning given in 42 USC 1396p (h) (2).

49.453(1)(e) (e) “Institutionalized individual” has the meaning given in 42 USC 1396p (h) (3).

49.453(1)(f) (f) “Look-back date” means either of the following:

49.453(1)(f)1m. 1m. For transfers made before February 8, 2006, the date that is 36 months before, or with respect to payments from a trust or portions of a trust that are treated as assets transferred by the covered individual under s. 49.454 (2) (c) or (3) (b) the date that is 60 months before:

49.453(1)(f)1m.a. a. For a covered individual who is an institutionalized individual, the first date on which the covered individual is both an institutionalized individual and has applied for medical assistance.

49.453(1)(f)1m.b. b. For a covered individual who is a noninstitutionalized individual, the date on which the covered individual applies for medical assistance or, if later, the date on which the covered individual, his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transferred assets for less than fair market value.

49.453(1)(f)2m. 2m. For all transfers made on or after February 8, 2006, the date that is 60 months before the dates specified in subd. 1m. a. and b.

49.453(1)(fm) (fm) “Noninstitutionalized individual” has the meaning given in 42 USC 1396p (h) (4).

49.453(1)(g) (g) “Reasonable compensation” means the prevailing local market rate of compensation for the service or care provided.

49.453(1)(h) (h) “Relative” means an individual who is related to another by blood, marriage or adoption.

49.453(1)(i) (i) “Resources” has the meaning given in 42 USC 1396p (h) (5).

49.453(1)(j) (j) “Trust” has the meaning given in 42 USC 1396p (d) (6).

49.453(2) (2) Ineligibility for medical assistance for certain services.

49.453(2)(a) (a) Institutionalized individuals. Except as provided in sub. (8), if an institutionalized individual or his or her spouse, or another person acting on behalf of the institutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the institutionalized individual’s look-back date, the institutionalized individual is ineligible for medical assistance for the following services for the period specified under sub. (3):

49.453(2)(a)1. 1. For nursing facility services.

49.453(2)(a)2. 2. For a level of care in a medical institution equivalent to that of a nursing facility.

49.453(2)(a)3. 3. For services under a waiver under 42 USC 1396n.

49.453(2)(b) (b) Noninstitutionalized individuals. Except as provided in sub. (8), if a noninstitutionalized individual or his or her spouse, or another person acting on behalf of the noninstitutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the noninstitutionalized individual’s look-back date, the noninstitutionalized individual is ineligible for medical assistance for the following services for the period specified under sub. (3):

49.453(2)(b)1. 1. Services that are described in 42 USC 1396d (a) (7), (22) or (24).

49.453(2)(b)2. 2. Other long-term care services specified by the department by rule.

49.453(3) (3) Period of ineligibility.

49.453(3)(a) (a) The period of ineligibility under this subsection begins on either of the following for an applicant for Medical Assistance:

49.453(3)(a)1. 1. In the case of a transfer of assets made before February 8, 2006, the first day of the first month beginning on or after the look-back date during or after which assets have been transferred for less than fair market value and that does not occur in any other periods of ineligibility under this subsection.

49.453(3)(a)2. 2. In the case of a transfer of assets made on or after February 8, 2006, the first day of a month beginning on or after the look-back date during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance and would otherwise be receiving institutional level care described in sub. (2) (a) 1. to 3. based on an approved application for the care but for the application of the penalty period, whichever is later, and that does not occur during any other period of ineligibility under this subsection.

49.453(3)(ag) (ag) The period of ineligibility under this subsection for a transfer of assets made at the time the individual is receiving long-term care services through Medical Assistance begins on the first day of the month following the month in which the individual receives advance notice of the period of ineligibility.

49.453(3)(b) (b) Subject to par. (bc), the department shall determine the number of months of ineligibility as follows:

49.453(3)(b)1. 1. The department shall determine the total, cumulative uncompensated value of all assets transferred by the covered individual or his or her spouse on or after the look-back date.

49.453(3)(b)2. 2. The department shall determine the average monthly cost to a private patient of nursing facility services in the state at the time that the covered individual applied for medical assistance.

49.453(3)(b)3. 3. The number of months of ineligibility equals the number determined by dividing the amount determined under subd. 1. by the amount determined under subd. 2.

49.453(3)(bc) (bc) In determining the number of months of ineligibility under par. (b), with respect to asset transfers that occur after February 8, 2006, the department may not round down the quotient, or otherwise disregard any fraction of a month, obtained in the division under par. (b) 3.

49.453(3)(c) (c) If the spouse of an individual makes a transfer of assets that results in a period of ineligibility under this section and otherwise becomes eligible for medical assistance, the department shall apportion the period of ineligibility between the individual and the spouse. The department shall promulgate rules establishing a reasonable methodology for apportioning a period of ineligibility under this paragraph.

49.453(4) (4) Irrevocable annuities, promissory notes and similar transfers.

49.453(4)(ac) (ac) In this subsection, “transaction” means any action taken by an individual that changes the course of payments to be made under an annuity or the treatment of the income or principal of an annuity, including all of the following:

49.453(4)(ac)1. 1. An addition of principal.

49.453(4)(ac)2. 2. An elective withdrawal.

49.453(4)(ac)3. 3. A request to change the distribution of the annuity.

49.453(4)(ac)4. 4. An election to annuitize the contract.

49.453(4)(ac)5. 5. A change in ownership.

49.453(4)(ag) (ag) For the purposes of sub. (2), whenever a covered individual or his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transfers assets to an irrevocable annuity, or transfers assets by promissory note or similar instrument, in an amount that exceeds the expected value of the benefit, the covered individual or his or her spouse transfers assets for less than fair market value. A transfer to an annuity, or a transfer by promissory note or similar instrument, is not in excess of the expected value only if all of the following are true:

49.453(4)(ag)1. 1. The periodic payments back to the transferor include principal and interest that, at the time that the transfer is made, is at least at one of the following:

49.453(4)(ag)1.a. a. For an annuity, promissory note or similar instrument that is not specified under subd. 1. b. or par. (am), the applicable federal rate required under section 1274 (d) of the Internal Revenue Code, as defined in s. 71.01 (6).

49.453(4)(ag)1.b. b. For an annuity with a guaranteed life payment, the appropriate average of the applicable federal rates based on the expected length of the annuity minus 1.5 percent.

49.453(4)(ag)2. 2. The terms of the instrument provide for a payment schedule that includes equal periodic payments, except that payments may be unequal if the interest payments are tied to an interest rate and the inequality is caused exclusively by fluctuations in that rate.

49.453(4)(am) (am) Paragraph (ag) 1. does not apply to a variable annuity that is tied to a mutual fund that is registered with the federal securities and exchange commission.

49.453(4)(b) (b) The amount of assets that is transferred for less than fair market value under par. (ag) is the amount by which the transferred amount exceeds the expected value of the benefit.

49.453(4)(c) (c) The department shall promulgate rules specifying the method to be used in calculating the expected value of the benefit, based on 26 CFR 1.72-1 to 1.72-18, and specifying the criteria for adjusting the expected value of the benefit based on a medical condition diagnosed by a physician before the assets were transferred to the annuity, or transferred by promissory note or similar instrument. In calculating the amount of the divestment when a transfer to an annuity, or a transfer by promissory note or similar instrument, is made, payments made to the transferor in any year subsequent to the year in which the transfer was made shall be discounted to the year in which the transfer was made by the applicable federal rate specified under par. (ag) on the date of the transfer.

49.453(4)(cm) (cm) Paragraphs (ag) to (c) apply to annuities purchased before February 8, 2006, for which no transaction has occurred on or after February 8, 2006.

49.453(4)(d) (d) For purposes of sub. (2), the purchase of an annuity by an institutionalized individual or his or her community spouse, or anyone acting on their behalf, shall be treated as a transfer of assets for less than fair market value unless any of the following applies:

49.453(4)(d)1. 1. The state is designated as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual.

49.453(4)(d)2. 2. The state is named as a beneficiary in the 2nd position after the community spouse or a minor or disabled child and is named in the first position if the community spouse or a representative of the minor or disabled child disposes of any remainder for less than fair market value.

49.453(4)(d)3. 3. The annuity satisfies the requirements under par. (e) 1. or 2.

49.453(4)(e) (e) For purposes of sub. (2), the purchase of an annuity by or on behalf of an annuitant who has applied for medical assistance for nursing facility services or other long-term care services described in sub. (2) is a transfer of assets for less than fair market value unless either of the following applies:

49.453(4)(e)1. 1. The annuity is either an annuity described in section 408 (b) or (q) of the Internal Revenue Code of 1986 or purchased with proceeds from any of the following:

49.453(4)(e)1.a. a. An account or trust described in section 408 (a), (c), or (p) of the Internal Revenue Code of 1986.

49.453(4)(e)1.b. b. A simplified employee pension, within the meaning of section 408 (k) of the Internal Revenue Code of 1986.

49.453(4)(e)1.c. c. A Roth IRA described in section 408A of the Internal Revenue Code of 1986.

49.453(4)(e)2. 2. All of the following apply with respect to the annuity:

49.453(4)(e)2.a. a. The annuity is irrevocable and nonassignable.

49.453(4)(e)2.b. b. The annuity is actuarily sound, as determined in accordance with actuarial publications of the office of the chief actuary of the social security administration.

49.453(4)(e)2.c. c. The annuity provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made.

49.453(4)(em) (em) Paragraphs (d) and (e) apply to all of the following:

49.453(4)(em)1. 1. Annuities purchased on or after February 8, 2006.