Chapter 49

49.47(4)(cm)3. 3. An individual who is otherwise eligible under this subsection and who has set aside funds in an irrevocable burial trust under s. 445.125 (1) (a) 2. shall, as a condition of eligibility for medical assistance, specify the state as a secondary beneficiary of the trust with respect to all funds in the trust that exceed the burial costs but do not exceed the amount of medical assistance paid on behalf of the individual.

49.47(4)(cr) (cr)

49.47(4)(cr)1. 1. As a condition of receiving medical assistance for long-term care services described in s. 49.453 (2) (a), an applicant for or recipient of the long-term care services shall disclose on the application or recertification form a description of any interest the individual or his or her community spouse, as defined in s. 49.453 (1) (ar), has in an annuity, regardless of whether the annuity is irrevocable or is treated as an asset. The application or recertification form shall include a statement that the state becomes a remainder beneficiary under any annuity in which the individual or his or her spouse has an interest by virtue of the provision of the medical assistance. The applicant or recipient shall, no later than 30 days after the department receives the application or recertification form, take any action required by the annuity issuer to make the state a remainder beneficiary.

49.47(4)(cr)2. 2. The department shall notify the issuer of an annuity disclosed under subd. 1. of the state’s right as a remainder beneficiary and shall request that the issuer notify the department of any changes to or payments made under the annuity contract.

49.47(4)(cr)3. 3. This paragraph applies to all of the following:

49.47(4)(cr)3.a. a. Annuities purchased on or after February 8, 2006.

49.47(4)(cr)3.b. b. Annuities purchased before February 8, 2006, for which a transaction, as defined in s. 49.453 (4) (ac), has occurred on or after February 8, 2006.

49.47(4)(d) (d) An individual is eligible for medical assistance under this section for 3 months prior to the month of application if the individual met the eligibility criteria under this section during those months.

49.47(4)(e) (e) Temporary absence of a resident from the state shall not be grounds for denying the certificate or for the cancellation of an existing certificate.

49.47(4)(f) (f) An individual determined to be eligible for benefits under par. (am) 1. remains eligible for benefits under par. (am) 1. for the balance of the pregnancy and to the last day of the first month which ends at least 60 days after the last day of the pregnancy without regard to any change in the individual’s family income.

49.47(4)(g) (g) If a child eligible for benefits under par. (am) 2. is receiving inpatient services covered under sub. (6) 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. (am) 2., the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.

49.47(4)(h) (h) For the purposes of par. (am), “income” includes income that would be used in determining eligibility for aid to families with dependent children under s. 49.19 and excludes income that would be excluded in determining eligibility for aid to families with dependent children under s. 49.19.

49.47(4)(i) (i)

49.47(4)(i)1. 1. The department shall request a waiver from the secretary of the federal department of health and human services to permit the application of subd. 2. The waiver shall request approval to implement the waiver on a statewide basis, unless the department of health services determines that statewide implementation of the waiver would present an obstacle to the approval of the waiver by the secretary of the federal department of health and human services, in which case the waiver shall request approval to implement the waiver in 48 pilot counties to be selected by the department of health services. Within 30 days after August 12, 1993, the department of safety and professional services shall notify funeral directors licensed under ch. 445, cemetery associations, as defined in s. 157.061 (1r), and cemetery authorities, as defined in s. 157.061 (2), of the terms of the waiver required to be requested under this subdivision. If the waiver is approved by the secretary of the federal department of health and human services and if the waiver remains in effect, subd. 2. shall apply.

49.47(4)(i)2. 2. Notwithstanding par. (b) 2r. and 3., a person who is described in par. (a) 3. or 4. is not eligible for benefits under this section if any of the following criteria is met:

49.47(4)(i)2.a. a. For the person or his or her spouse, the sum of the following, less the cash value of any life insurance excluded under par. (b) 2w. that was obtained after July 1, 1993, exceeds $8,000: the value of any burial space or agreement described in par. (b) 2r. that was acquired after July 1, 1993; the amount in any irrevocable burial trust under s. 445.125 (1) (a) that was acquired after July 1, 1993; and any funds set aside after July 1, 1993, to meet the burial and related expenses under par. (b) 3.

49.47(4)(i)2.b. b. The value of any burial space or agreement described in par. (b) 2r. that is held for any other member of the person’s immediate family and that was acquired after July 1, 1993, exceeds $8,000.

49.47(4)(i)2.c. c. For the person or his or her spouse, the value of amounts set aside under par. (b) 3. for cemetery property and fees to open and close grave sites, including mausoleum spaces, exceeds $1,000.

49.47(4)(j) (j) If the change in the approved state plan under s. 49.46 (1) (am) 2. is denied, the department shall request a waiver from the secretary of the federal department of health and human services to allow the use of federal matching funds to provide medical assistance coverage under par. (am) 1. and 2. to individuals whose family incomes do not exceed 185 percent of the poverty line in each state fiscal year after the 1994-95 state fiscal year.

49.47(4)(k) (k) Notwithstanding par. (b) 3. and s. 445.125 (1) (a), no later than 60 days after July 1, 2013, the department shall seek approval from the federal Centers for Medicare and Medicaid Services to permit any individual receiving medical assistance under this section to contribute funds to an irrevocable burial trust for the individual, up to a total irrevocable trust amount of $4,500, without the individual losing eligibility for medical assistance under this section. If the federal Centers for Medicare and Medicaid Services approves the request, the department shall implement the change under this section within 60 days after receiving approval.

49.47(5) (5) Investigation by department. The department may make additional investigation of eligibility at any of the following times:

49.47(5)(a) (a) When there is reasonable ground for belief that an applicant may not be eligible or that the beneficiary may have received benefits to which the beneficiary is not entitled.

49.47(5)(b) (b) Upon the request of the secretary of the U.S. department of health and human services.

49.47(6) (6) Benefits.

49.47(6)(a) (a) The department shall audit and pay charges to certified providers for medical assistance on behalf of the following:

49.47(6)(a)1. 1. Except as provided in subds. 6. to 7., all beneficiaries, for all services under s. 49.46 (2) (a) and (b), subject to s. 49.46 (2) (dc).

49.47(6)(a)6. 6.

49.47(6)(a)6.a. a. In this subdivision,“entitled to coverage under part A of medicare” means eligible for and enrolled in part A of medicare under 42 USC 1395c to 1395f.

49.47(6)(a)6.ag. ag. In this subdivision,“entitled to coverage under part B of medicare” means eligible for and enrolled in part B of medicare under 42 USC 1395j to 1395L.

49.47(6)(a)6.ar. ar. In this subdivision,“income limitation” means income that is equal to or less than 100 percent of the poverty line, as established under 42 USC 9902 (2).

49.47(6)(a)6.b. b. An individual who is entitled to coverage under Part A of Medicare, entitled to coverage under Part B of Medicare, meets the eligibility criteria under sub. (4) (a), and meets the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395zz that are not paid under 42 USC 1395 to 1395zz, including those Medicare services that are not included in the approved state plan for services under 42 USC 1396; the monthly premiums payable under 42 USC 1395v; the monthly premiums, if applicable, under 42 USC 1395i-2 (d); and the late enrollment penalty, if applicable, for premiums under Part A of Medicare. Payment of coinsurance for a service under Part B of Medicare under 42 USC 1395j to 1395w and payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

49.47(6)(a)6.c. c. An individual who is only entitled to coverage under Part A of Medicare, meets the eligibility criteria under sub. (4) (a), and meets the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395i that are not paid under 42 USC 1395 to 1395i, including those Medicare services that are not included in the approved state plan for services under 42 USC 1396; the monthly premiums, if applicable, under 42 USC 1395i-2 (d); and the late enrollment penalty, if applicable, for premiums under Part A of Medicare. Payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

49.47(6)(a)6.d. d. An individual who is entitled to coverage under Part A of Medicare, entitled to coverage under Part B of Medicare, and meets the eligibility criteria for Medical Assistance under sub. (4) (a), but does not meet the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395zz that are not paid under 42 USC 1395 to 1395zz, including those Medicare services that are not included in the approved state plan for services under 42 USC 1396. Payment of coinsurance for a service under Part B of Medicare under 42 USC 1395j to 1395w and payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

49.47(6)(a)6.e. e. An individual who is only entitled to coverage under Part A of Medicare and meets the eligibility criteria for Medical Assistance under sub. (4) (a), but does not meet the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395i, including those services that are not included in the approved state plan for services under 42 USC 1396. Payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

49.47(6)(a)6.f. f. For an individual who is only entitled to coverage under Part B of Medicare and meets the eligibility criteria under sub. (4), but does not meet the income limitation, Medical Assistance shall include payment of the deductible and coinsurance portions of Medicare services under 42 USC 1395j to 1395w, including those Medicare services that are not included in the approved state plan for services under 42 USC 1396. Payment of coinsurance for a service under Part B of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

49.47(6)(a)6m. 6m. An individual who is entitled to coverage under part A of medicare, as defined in subd. 6. a. is entitled to coverage under part B of medicare, as defined in subd. 6. ag. and meets the eligibility criteria under sub. (4) (a) and whose income is greater than 100 percent of the poverty line but less than 120 percent of the poverty line for the monthly premiums under 42 USC 1395r.

49.47(6)(a)7. 7. Beneficiaries eligible under sub. (4) (ag) 2. or (am) 1., for services under s. 49.46 (2) (a) and (b) that are related to pregnancy, including postpartum services and family planning services, as defined in s. 253.07 (1) (b), or related to other conditions which may complicate pregnancy.

49.47(6)(b) (b) In no event may payments be made for medical assistance rendered during a period when the beneficiary would not have been eligible for benefits under this section.

49.47(6)(c) (c) Benefits shall not include any payment with respect to:

49.47(6)(c)1. 1. Care or services in any private or public institution, unless the institution has been approved by a standard-setting authority responsible by law for establishing and maintaining standards for such institution.

49.47(6)(c)2. 2. That part of any service otherwise authorized under this section which is payable through 3rd-party liability or any federal, state, county, municipal or private benefit systems, to which the beneficiary may otherwise be entitled.

49.47(6)(c)3. 3. Care or services for an individual who is an inmate of a public institution, except as a patient in a medical institution or a resident in an intermediate care facility.

49.47(6)(c)4. 4. Except as provided under s. 49.45 (53m), services to individuals aged 21 to 64 who are residents of an institution for mental diseases and who are otherwise eligible for medical assistance, except for individuals under 22 years of age who were receiving these services immediately prior to reaching age 21 and continuously thereafter and except for services to individuals who are on convalescent leave or are conditionally released from the institution for mental diseases. For purposes of this subdivision, the department shall define “convalescent leave” and “conditional release” by rule.

49.47(6)(d) (d) No payment under this subsection may include care for services rendered earlier than 3 months preceding the month of application.

49.47(7) (7) Reduction of benefits. If the funds appropriated become or are estimated to be insufficient to make full payment of benefits provided under this section, all charges for service so authorized shall be prorated on the basis of funds available or by limiting the benefits provided.

49.47(8) (8) Enrollment fee. As long as an enrollment fee or premium is required for persons receiving benefits under Title XIX of the social security act, the department shall charge the minimum enrollment fee or premium required under federal law. The fee or premium so charged shall be related to the beneficiary’s income, in accordance with guidelines established by the secretary of the U.S. department of health and human services.

49.47 History History: 1971 c. 125; 1971 c. 213 s. 5; 1971 c. 215; 1973 c. 90, 147, 333; 1977 c. 29 ss. 593, 1656 (18); 1977 c. 105 s. 59; 1977 c. 273, 418; 1979 c. 34; 1981 c. 20, 93; 1981 c. 314 s. 144; 1983 a. 27, 245; 1985 a. 29; 1987 a. 27, 307, 399, 413; 1989 a. 9; 1989 a. 31 ss. 1462k to 1466d, 2909c to 2909i; 1989 a. 173, 336, 351; 1991 a. 39, 178, 269, 316; 1993 a. 16, 269, 277, 437; 1995 a. 27 ss. 3026 to 3028, 9126 (19); 1995 a. 225, 289, 295; 1997 a. 27; 1999 a. 9; 2001 a. 16; 2005 a. 25, 253; 2007 a. 11; 2007 a. 20 ss. 1596 to 1604, 9121 (6) (a); 2009 a. 28, 180; 2011 a. 10, 32; 2013 a. 20; 2013 a. 116 ss. 29, 30; 2013 a. 117 s. 2, 3; 2017 a. 59; 2019 a. 9; 2021 a. 58.

49.47 Cross-reference Cross-reference: See also chs. DHS 102, 103, and 107, Wis. adm. code.

49.47 Annotation Discussing compliance of state spend-down requirements with federal requirements. Swanson v. DHSS, 105 Wis. 2d 78, 312 N.W.2d 833 (Ct. App. 1981).

49.47 Annotation Evaluating disability claims requires determining whether the claimant: 1) is working; 2) has significant impairments that significantly limit physical or mental ability to work; 3) has impairments that are federal “listed impairments;” 4) does not have “listed impairments” and can return to prior work; and 5) cannot return to prior work but can perform other work. Clauer v. DHSS, 174 Wis. 2d 344, 497 N.W.2d 738 (Ct. App. 1992).

49.47 Annotation Sub. (6) (d) and s. 49.46 (1) (b) limit retroactive medical assistance payments to services received not more than three months prior to the date the application is submitted. St. Paul Ramsey Medical Center v. DHSS, 186 Wis. 2d 37, 519 N.W.2d 681 (Ct. App. 1994).

49.47 Annotation Testamentary trust payments constitute unearned income under sub. (4). Tarrant v. Department of Health Services, 2019 WI App 45, 388 Wis. 2d 461, 933 N.W.2d 145, 18-1299.

49.47 Annotation A regulation that “deemed” resources of one spouse to be “available” to the other was valid. Schweiker v. Gray Panthers, 453 U.S. 34, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981).

49.471 49.471 BadgerCare Plus.

49.471(1) (1) Definitions. In this section, unless the context requires otherwise:

49.471(1)(a) (a) “BadgerCare Plus” means the Medical Assistance program described in this section.

49.471(1)(b) (b) “Caretaker relative” means an individual who is maintaining a residence as a child’s home, who exercises primary responsibility for the child’s care and control, including making plans for the child, and who is any of the following with respect to the child:

49.471(1)(b)1. 1. A blood relative, including those of half-blood, and including first cousins, nephews, nieces, and individuals of preceding generations as denoted by prefixes of grand, great, or great-great.

49.471(1)(b)2. 2. A stepfather, stepmother, stepbrother, or stepsister.

49.471(1)(b)3. 3. An individual who is the adoptive parent of the child’s parent, a natural or legally adopted child of such individual, or a relative of an adoptive parent.

49.471(1)(b)4. 4. A spouse of any individual named in this paragraph even if the marriage is terminated by death or divorce.

49.471(1)(c) (c) “Child” means an individual who is under the age of 19 years. “Child” includes an unborn child.

49.471(1)(cm) (cm) “Disabled” means, when referring to an adult, meeting the disability standard for eligibility for federal supplemental security income under 42 USC 1382c (a) (3).

49.471(1)(d) (d) “Essential person” means an individual who satisfies all of the following:

49.471(1)(d)1. 1. Is related to an individual receiving benefits under this section.

49.471(1)(d)2. 2. Is otherwise nonfinancially eligible, except that the individual need not have a minor child under his or her care.

49.471(1)(d)3. 3. Provides at least one of the following to an individual receiving benefits under this section:

49.471(1)(d)3.a. a. Child care that enables a caretaker to work outside the home for at least 30 hours per week for pay, to receive training for at least 30 hours per week, or to attend, on a full-time basis as defined by the school, high school or a course of study meeting the standards established by the state superintendent of public instruction for the granting of a declaration of equivalency of high school graduation under s. 115.29 (4).

49.471(1)(d)3.b. b. Care for anyone who is incapacitated.

49.471(1)(e) (e) “Family” means all children for whom assistance is requested, their minor siblings, including half brothers, half sisters, stepbrothers, and stepsisters, and any parents of these minors and their spouses.

49.471(1)(f) (f) “Family income” has the meaning given for “household income” under 42 CFR 435.603 (d).

49.471(1)(g) (g) “Group health plan” has the meaning given in 42 USC 300gg-91 (a) (1).

49.471(1)(h) (h) “Health insurance coverage” has the meaning given in 42 USC 300gg-91 (b) (1), and also includes any arrangement under which a 3rd party agrees to pay for the health care costs of the individual.

49.471(1)(i) (i) “Parent” has the meaning given in s. 49.141 (1) (j).

49.471(1)(j) (j) “Recipient” means an individual receiving benefits under this section.

49.471(1)(k) (k) “Unborn child” means an individual from conception until he or she is born alive for whom all of the following requirements are met:

49.471(1)(k)1. 1. The unborn child’s mother is not eligible for medical assistance under this subchapter, except that she may be eligible for benefits under s. 49.45 (27).

49.471(1)(k)2. 2. The income of the unborn child’s mother, mother and her spouse, or mother and her family, whichever is applicable, does not exceed 300 percent of the poverty line.

49.471(1)(k)3. 3. Each of the following applicable persons who is employed provides verification from his or her employer, in the manner specified by the department, of his or her earnings:

49.471(1)(k)3.a. a. The unborn child’s mother.

49.471(1)(k)3.b. b. The spouse of the unborn child’s mother.

49.471(1)(k)3.c. c. Members of the unborn child’s mother’s family.

49.471(1)(k)4. 4. The unborn child’s mother provides medical verification of her pregnancy, in the manner specified by the department. An unborn child’s eligibility for coverage under this section does not begin before the first day of the month in which the unborn child’s mother provides the medical verification.

49.471(1)(k)5. 5. The unborn child and the mother of the unborn child meet all other applicable eligibility requirements under this chapter or established by the department by rule except for any of the following:

49.471(1)(k)5.a. a. The mother is not a U.S. citizen or an alien qualifying for Medicaid under 8 USC 1612.

49.471(1)(k)5.b. b. The mother is an inmate of a public institution.

49.471(1)(k)5.c. c. The mother does not provide a social security number, but only if subd. 5. a. applies.

49.471(2) (2) Waiver and state plan amendments. The department shall request a waiver from, and submit amendments to the state Medical Assistance plan to, the secretary of the federal department of health and human services to implement BadgerCare Plus. If the state plan amendments are approved and a waiver that is substantially consistent with the provisions of this section, excluding sub. (2m), is granted and in effect, the department shall implement BadgerCare Plus beginning on January 1, 2008, the effective date of the state plan amendments, or the effective date of the waiver, whichever is latest. If the state plan amendments are not approved or if a waiver that is substantially consistent with the provisions of this section, excluding sub. (2m), is not granted, BadgerCare Plus may not be implemented. If the state plan amendments are approved but approval is not continued or if a waiver that is substantially consistent with the provisions of this section, excluding sub. (2m), is granted but not continued in effect, BadgerCare Plus shall be discontinued.

49.471(2m) (2m) Approval to qualify as a health coverage tax credit plan. The department shall seek any necessary federal approvals to ensure that BadgerCare Plus is qualified health insurance under 26 USC 35 (e). Notwithstanding subs. (4) and (5), if BadgerCare Plus is determined to be qualified health insurance under 26 USC 35 (e), the department shall expand eligibility under BadgerCare Plus to include individuals who are eligible individuals under 26 USC 35 (c). Notwithstanding sub. (10) (a) and (b) 1. to 4., individuals who are eligible for coverage under BadgerCare Plus under this subsection shall pay premiums that are equal to the capitation payments that the department would make on behalf of similar individuals with coverage under BadgerCare Plus, or the full per member per month cost of coverage, whichever is appropriate.