Chapter 49

49.455(5)(a)2. 2. At the beginning of the first continuous period of institutionalization beginning after September 29, 1989, upon the request of an institutionalized spouse or a community spouse and the receipt of necessary documentation, the department shall assess and document the total value of resources under subd. 1. and shall provide a copy of the assessment and documentation to each spouse and retain a copy for departmental use. If the request is not part of an application for medical assistance, the department may charge a fee not exceeding the reasonable expenses of providing and documenting the assessment. When the department provides a copy of an assessment, it shall provide notice that a spouse has the right to a fair hearing under sub. (8) after an application for medical assistance is filed.

49.455(5)(b) (b) Notwithstanding ch. 766, in determining the resources of an institutionalized spouse at the time of application for medical assistance, the amount of resources considered to be available to the institutionalized spouse equals the value of all of the resources held by either or both spouses minus the greatest of the amounts determined under sub. (6) (b) 1. to 4.

49.455(5)(c) (c) The amount of resources determined under par. (b) to be available for the cost of care does not cause an institutionalized spouse to be ineligible for medical assistance, if any of the following applies:

49.455(5)(c)1. 1. The institutionalized spouse has assigned to the state any rights to support from the community spouse.

49.455(5)(c)2. 2. The institutionalized spouse lacks the ability to execute an assignment under subd. 1. due to a physical or mental impairment but the state has the right to bring a support proceeding against the community spouse without an assignment.

49.455(5)(c)3. 3. The department determines that denial of eligibility would work an undue hardship.

49.455(5)(d) (d) During a continuous period of institutionalization, after an institutionalized spouse is determined to be eligible for medical assistance, no resources of the community spouse are considered to be available to the institutionalized spouse, except that a transfer of those resources or other assets by the community spouse within the first 5 years of eligibility of the institutionalized spouse may result in a period of ineligibility under s. 49.453 (2) and (3) for the institutionalized spouse.

49.455(5)(e) (e) The department may deny to the institutionalized spouse eligibility for Medical Assistance if, when requested by the department, the institutionalized spouse and the community spouse do not provide the total value of their assets and information on income and resources to the extent required under federal Medicaid law or sign the application for Medical Assistance.

49.455(6) (6) Permitting transfer of resources to community spouse.

49.455(6)(a) (a) Notwithstanding s. 49.453 (2), an institutionalized spouse may transfer an amount of resources equal to the community spouse resource allowance determined under par. (b) to, or for the sole benefit of, the community spouse without becoming ineligible for medical assistance for the period of ineligibility under s. 49.453 (3) as a result of the transfer. The institutionalized spouse shall make the transfer as soon as practicable after the initial determination of eligibility for medical assistance, taking into account the amount of time that is necessary to obtain a court order under par. (c).

49.455(6)(b) (b) The community spouse resource allowance equals the amount by which the amount of resources otherwise available to the community spouse is exceeded by the greatest of the following:

49.455(6)(b)1. 1. In any year, $12,000 increased by the same percentage as the percentage increase in the consumer price index between September 1988 and September of the year before the calendar year involved.

49.455(6)(b)1m. 1m. $50,000.

49.455(6)(b)2. 2. The lesser of the following:

49.455(6)(b)2.a. a. The spousal share computed under sub. (5) (a) 1.

49.455(6)(b)2.b. b. In any year, $60,000 increased by the same percentage as the percentage increase in the consumer price index between September 1988 and September of the year before the year involved.

49.455(6)(b)3. 3. The amount established in a fair hearing under sub. (8) (d).

49.455(6)(b)4. 4. The amount transferred under a court order under par. (c).

49.455(6)(c) (c) If a court has entered a support order against a community spouse, s. 49.453 does not apply to resources transferred under the order for the support of the community spouse or a family member.

49.455(7) (7) Notice. The department shall notify both spouses upon a determination of medical assistance eligibility of an institutionalized spouse, or shall notify the spouse making the request upon a request by either an institutionalized spouse or a community spouse, of all of the following:

49.455(7)(a) (a) The amount of the community spouse monthly income allowance calculated under sub. (4) (b).

49.455(7)(b) (b) The amount of any family allowances under sub. (4) (a) 3.

49.455(7)(c) (c) The method for computing the amount of the community spouse resource allowance under sub. (6) (b).

49.455(7)(d) (d) The 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.

49.455(8) (8) Fair hearing.

49.455(8)(a) (a) An institutionalized spouse or a community spouse is entitled to a departmental fair hearing concerning any of the following:

49.455(8)(a)1. 1. The determination of the community spouse monthly income allowance under sub. (4) (b).

49.455(8)(a)2. 2. The determination of the amount of monthly income otherwise available to the community spouse used in the calculation under sub. (4) (b).

49.455(8)(a)3. 3. After an application for medical assistance benefits is filed, the computation of the spousal share of resources under sub. (5) (a) 1.

49.455(8)(a)4. 4. The attribution of resources under sub. (5) (b).

49.455(8)(a)5. 5. The determination of the community spouse resource allowance under sub. (6) (b).

49.455(8)(b) (b) If the institutionalized spouse has made an application for medical assistance, and a fair hearing is requested under par. (a) concerning the determination of community spouse resource allowance, the department shall hold the hearing within 30 days after the request.

49.455(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. (4) (c), the department shall determine an amount adequate to provide for the community spouse’s needs and use that amount in place of the minimum monthly maintenance needs allowance in determining the community spouse monthly income allowance under sub. (4) (b).

49.455(8)(d) (d)

49.455(8)(d)1. 1. If either spouse establishes at a fair hearing that the community spouse resource allowance determined under sub. (6) (b) 1. to 2. or 4. without a fair hearing does not generate enough income to raise the community spouse’s income to the minimum monthly maintenance needs allowance under sub. (4) (c), the department shall establish, under subd. 2., an amount to be used under sub. (6) (b) 3. that results in a community spouse resource allowance that generates enough income to raise the community spouse’s income to the minimum monthly maintenance needs allowance under sub. (4) (c).

49.455(8)(d)2. 2. The department shall base the amount to be used under sub. (6) (b) 3. on the cost of a single premium lifetime annuity that pays monthly amounts that, combined with other available income, raises the community spouse’s income to the minimum monthly maintenance needs allowance. Any resource, regardless of whether the resource generates income, may be transferred in an amount that, combined with the community spouse resource allowance calculated before the fair hearing, provides the community spouse with sufficient funds to purchase the annuity. The community spouse is not required to purchase an annuity to obtain this amount.

49.455(8)(d)3. 3. Except in exceptional cases which would result in financial duress for the community spouse, the department may not establish an amount to be used under sub. (6) (b) 3. unless the institutionalized spouse makes available to the community spouse the maximum monthly income allowance permitted under sub. (4) (b) or, if the institutionalized spouse does not have sufficient income to make available to the community spouse the maximum monthly income allowance permitted under sub. (4) (b), unless the institutionalized spouse makes all of his or her income, except for an amount equal to the sum of the personal needs allowance under sub. (4) (a) 1. and any family allowances under sub. (4) (a) 3. paid by the institutionalized spouse and the amount incurred as expenses for medical or remedial care for the institutionalized spouse under sub. (4) (a) 4., available to the community spouse as a community spouse monthly income allowance under sub. (4) (b).

49.455 History History: 1989 a. 31, 81; 1991 a. 39, 269; 1993 a. 16, 437; 1995 a. 27; 2005 a. 441; 2013 a. 20.

49.455 Cross-reference Cross-reference: See also ch. DHS 103, Wis. adm. code.

49.455 Annotation An ineligible spouse’s individual retirement account is excluded in determining whether the applying spouse is eligible for medical assistance. Keip v. DHFS, 2000 WI App 13, 232 Wis. 2d 380, 606 N.W.2d 543, 99-0193.

49.455 Annotation Sub. (2) applies in determining eligibility for medical assistance and the required contribution to an institutionalized person’s care. Sub. (3) (a) declares that the income of a community spouse is not available to the institutionalized spouse when, with specific exceptions, a community spouse’s income is paid solely to the spouse. In general, s. 49.90 (1) (a) 1. obligates a spouse to support a dependent spouse who is unable to financially care for him or herself while residing in an institution but must give way to the more specific terms of this section. Chippewa County Department of Human Services v. Bush, 2007 WI App 184, 305 Wis. 2d 181, 738 N.W.2d 562, 05-1113.

49.455 Annotation Sub. (8) (d) does not conflict with federal law. Federal law does not require an institutionalized spouse’s income-producing assets to be shifted to the community spouse’s minimum monthly maintenance needs allowance before his or her income is shifted to the community spouse. DHFS v. Blumer, 534 U.S. 473, 122 S. Ct. 962, 151 L. Ed. 2d 935 (2002).

49.455 Annotation Wisconsin Department of Health and Family Services v. Blumer: A “Case” Study in Pragmatism and the Expansion of Judicial Deference to Agency Interpretations. Kindstrand. 2002 WLR 1467.

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

49.46 49.46 Medical assistance; recipients of social security aids.

49.46(1) (1) Eligibility.

49.46(1)(a) (a) The following shall receive medical assistance under this section:

49.46(1)(a)1. 1. Notwithstanding s. 49.19 (20), any individual who, without regard to the individual’s resources, would qualify for a grant of aid to families with dependent children under s. 49.19.

49.46(1)(a)1g. 1g. Notwithstanding s. 49.19 (20), any individual who, without regard to the individual’s resources, would qualify for a grant of aid to families with dependent children but who would not receive the aid solely because of the application of s. 49.19 (11) (f).

49.46(1)(a)1m. 1m. Any pregnant woman whose income does not exceed the standard of need under s. 49.19 (11) and whose pregnancy is medically verified. Eligibility continues to the last day of the month in which the 60th day or, if approved by the federal government, the 90th day after the last day of the pregnancy falls.

49.46(1)(a)3. 3. Any essential person.

49.46(1)(a)4. 4. Any person receiving benefits under s. 49.77 or federal Title XVI.

49.46(1)(a)4m. 4m. Any child for whom a payment is made under s. 49.775.

49.46(1)(a)5. 5. Any child in an adoption assistance, foster care, or subsidized guardianship placement under ch. 48 or 938, as determined by the department.

49.46(1)(a)6. 6. Any person not described in pars. (c) to (e) who, without regard to the individual’s resources, would be considered, under federal law, to be receiving aid to families with dependent children for the purpose of determining eligibility for medical assistance.

49.46(1)(a)6m. 6m. Any person not described in pars. (c) to (e) who is considered, under federal law, to be receiving supplemental security income for the purpose of determining eligibility for medical assistance.

49.46(1)(a)9. 9. Any pregnant woman not described under subd. 1., 1g., or 1m. whose family income does not exceed 133 percent of the poverty line for a family the size of the woman’s family.

49.46(1)(a)10. 10. Any child not described under subd. 1. or 1g. who is under 6 years of age and whose family income does not exceed 133 percent of the poverty line for a family the size of the child’s family.

49.46(1)(a)11. 11. If a waiver under s. 49.665 is granted and in effect, any child not described under subd. 1. or 1g. who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100 percent of the poverty line for a family the size of the child’s family. If a waiver under s. 49.665 is not granted or in effect, any child not described in subd. 1. or 1g. who was born after September 30,1983, who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100 percent of the poverty line for a family the size of the child’s family.

49.46(1)(a)12. 12. Any child not described under subd. 1. or 1g. who is under 19 years of age and whose income does not exceed the standard of need under s. 49.19 (11).

49.46(1)(a)13. 13. Any child who is under one year of age, whose mother was determined to be eligible under subd. 9. and who lives with his or her mother.

49.46(1)(a)14. 14. Any person who would meet the financial and other eligibility requirements for home or community-based services under s. 46.277 or 46.2785 but for the fact that the person engages in substantial gainful activity under 42 USC 1382c (a) (3), if a waiver under s. 49.45 (38) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under s. 46.277 or 46.2785.

49.46(1)(a)14m. 14m. Any person who would meet the financial and other eligibility requirements for home or community-based services under the family care benefit but for the fact that the person engages in substantial gainful activity under 42 USC 1382c (a) (3), if a waiver under s. 46.281 (1d) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under the family care benefit.

49.46(1)(a)15. 15. Any individual who is infected with tuberculosis and meets the income and resource eligibility requirements for the federal Supplemental Security Income program under 42 USC 1381 to 1383d. For purposes of this subdivision, “income” has the meaning given for “family income” in s. 49.471 (1) (f).

49.46(1)(a)16. 16. Any child who is living with a relative who is eligible to receive payments under s. 48.57 (3m) or (3n) with respect to that child, if the department determines that no other insurance is available to the child.

49.46(1)(am) (am)

49.46(1)(am)1. 1. If the change requested under subd. 2. in the approved state plan for services under 42 USC 1396 is approved by the federal department of health and human services, the department shall disregard income from the following individuals, in an amount sufficient for the individual to become eligible for medical assistance under this section:

49.46(1)(am)1.a. a. A pregnant woman whose family income, before any income is disregarded under this paragraph, does not exceed, in state fiscal year 1994-95, 155 percent of the poverty line for a family the size of the woman’s family; and, in each state fiscal year after the 1994-95 state fiscal year, 185 percent of the poverty line for a family the size of the woman’s family.

49.46(1)(am)1.b. b. A child who is under 6 years of age and whose family income, before any income is disregarded under this paragraph, does not exceed, in state fiscal year 1994-95, 155 percent of the poverty line for a family the size of the child’s family; and, in each state fiscal year after the 1994-95 state fiscal year, 185 percent of the poverty line for a family the size of the child’s family.

49.46(1)(am)1.c. c. A child who is under one year of age, whose mother was determined to be eligible under subd. 1. a. and who lives with his or her mother.

49.46(1)(am)2. 2. The department shall request a change in the approved state plan for services under 42 USC 1396 to allow, pursuant to the authority granted under 42 USC 1396a (r) (2), the use of federal matching funds to provide medical assistance coverage to individuals under subd. 1., beginning on July 1, 1994.

49.46(1)(b) (b) Any person shall be considered a recipient of aid for 3 months prior to the month of application if the proper agency determines eligibility existed during such prior month.

49.46(1)(c) (c) Except as provided under par. (cr), a family that becomes ineligible for aid to families with dependent children under s. 49.19 because of increased income from employment or increased hours of employment shall receive medical assistance for 4 calendar months, or, if required under federal law, up to 12 months, following the month in which a parent, caretaker, or dependent child of the family becomes ineligible for aid to families with dependent children if all of the following apply:

49.46(1)(c)1g. 1g. The family is eligible for aid to families with dependent children for at least 3 of the 6 months immediately preceding the month in which the family becomes ineligible.

49.46(1)(c)1r. 1r. The family continues to include a child who is, or would be if needy, a dependent child under s. 49.19.

49.46(1)(cg) (cg) Except as provided under par. (cr), medical assistance shall be provided to a dependent child, a relative with whom the child is living or the spouse of the relative, if the spouse meets the requirements of s. 49.19 (1) (c) 2. a. or b., for 4 calendar months beginning with the month in which the child, relative or spouse is ineligible for aid to families with dependent children because of the collection or increased collection of maintenance or support, if the child, relative or spouse received aid to families with dependent children in 3 or more of the 6 months immediately preceding the month in which that ineligibility begins.

49.46(1)(cr) (cr) To the extent approved by the federal department of health and human services, an individual or family described in par. (c) or (cg) is not eligible for Medical Assistance if the federal department of health and human services approves a request from the department to deny all or some transitional Medical Assistance benefits to that individual or family, if approval is required. The department shall allow individuals who are receiving transitional Medical Assistance benefits on December 31, 2013, to continue to receive those benefits until their 12-month period ends, if required under federal law. If the federal department of health and human services approves the department’s request to charge a premium to recipients of continued transitional Medical Assistance benefits, the department may charge a premium to any recipient of continued transitional Medical Assistance benefits whose income exceeds 100 percent of the poverty line.

49.46(1)(d) (d) For the purposes of this section:

49.46(1)(d)1. 1. Children who are placed in licensed foster homes by the department and who would be eligible for payment of aid to families with dependent children in foster homes except that their placement is not made by a county department under s. 46.215, 46.22, or 46.23 will be considered as recipients of aid to families with dependent children.

49.46(1)(d)2. 2. Any accommodated person or any patient in a public medical institution shall be considered a recipient for purposes of this section if such person or patient would have inadequate means to meet his or her need for care and services if living in his or her usual living arrangement.

49.46(1)(d)3. 3. Any child adopted under s. 48.48 (12) shall be considered a recipient for any medical condition which exists at the time of the adoption or develops subsequent to the adoption.

49.46(1)(d)4. 4. A child who meets the conditions under 42 USC 1396a (e) (3) shall be considered a recipient of benefits under s. 49.77 or federal Title XVI.

49.46(1)(e) (e) If an application under s. 49.47 (3) shows that the individual meets the income limits under s. 49.19 or meets the income and resource requirements under federal Title XVI or s. 49.77, or that the individual is an essential person, an accommodated person, or a patient in a public medical institution, the individual shall be granted the benefits enumerated under sub. (2) whether or not the individual requests or receives a grant of any of such aids.

49.46(1)(em) (em) To the extent approved by the federal government, for the purposes of determining financial eligibility and any cost-sharing requirements of an individual under par. (a) 6m., 14., or 14m., (d) 2., or (e), the department or its designee shall exclude any assets accumulated in a person’s independence account, as defined in s. 49.472 (1) (c), and any income or assets from retirement benefits earned or accumulated from income or employer contributions while employed and receiving medical assistance under s. 49.472.

49.46(1)(j) (j) An individual determined to be eligible for benefits under par. (a) 9. remains eligible for benefits under par. (a) 9. for the balance of the pregnancy and to the last day of the month in which the 60th day or, if approved by the federal government, the 90th day after the last day of the pregnancy falls without regard to any change in the individual’s family income.

49.46(1)(k) (k)

49.46(1)(k)1. 1. If a child eligible for benefits under par. (a) 10. is receiving inpatient services covered under sub. (2) on the day before the birthday on which the child attains the age of 6 and, but for attaining that age, the child would remain eligible for benefits under par. (a) 10., the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.

49.46(1)(k)2. 2. If a child eligible for benefits under par. (a) 11. is receiving inpatient services covered under sub. (2) on the day before the birthday on which the child attains the age of 19 and, but for attaining that age, the child would remain eligible for benefits under par. (a) 11., the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.

49.46(1)(L) (L) For the purposes of par. (a) 9. to 12., “income” includes income that would be used in determining eligibility for aid to families with dependent children under s. 49.19, except to the extent that that determination is inconsistent with 42 USC 1396a (a) 17., and excludes income that would be excluded in determining eligibility for aid to families with dependent children under s. 49.19. For the purposes of par. (am), “income” shall be determined in accordance with the approved state plan for services under 42 USC 1396.