Chapter 49

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.

49.471(3) (3) Ineligibility for other Medical Assistance benefits.

49.471(3)(a) (a)

49.471(3)(a)1. 1. Notwithstanding ss. 49.46 (1), 49.465, 49.47 (4), and 49.665 (4), if the amendments to the state plan under sub. (2) are approved and a waiver under sub. (2) that is substantially consistent with the provisions of this section, excluding sub. (2m), is granted and in effect, an individual described in sub. (4) (a) or (5) is not eligible under s. 49.46, 49.465, 49.47, or 49.665 for Medical Assistance or BadgerCare health program benefits. The eligibility of an individual described in sub. (4) (a) or (5) for Medical Assistance benefits shall be determined under this section.

49.471(3)(a)2. 2. Notwithstanding subd. 1., an individual who is eligible for medical assistance under s. 49.46 (1) (a) 3. or 4. may not receive benefits under this section.

49.471(3)(a)3. 3. Notwithstanding subd. 1., an individual described in sub. (4) (a) or (5) who is eligible for medical assistance under s. 49.46 (1) (a) 5., 6m., 14., 14m., or 15. or (d) or 49.47 (4) (a) or (as) may receive medical assistance benefits under this section or under s. 49.46 or 49.47.

49.471(3)(b) (b)

49.471(3)(b)1. 1. If an individual over 18 years of age who is eligible for and receiving Medical Assistance benefits under s. 49.46, 49.47, or 49.665 in the month before BadgerCare Plus is implemented loses that eligibility solely due to the implementation of BadgerCare Plus and, because of his or her income, is not eligible for BadgerCare Plus, the individual shall continue receiving for 12 consecutive months the medical assistance he or she was receiving before the implementation of BadgerCare Plus if all of the following are satisfied:

49.471(3)(b)1.a. a. The individual’s eligibility for the Medical Assistance benefits in the month before the implementation of BadgerCare Plus was based on an application filed before the implementation of BadgerCare Plus.

49.471(3)(b)1.b. b. The individual continues to pay any premium that he or she was required to pay for the Medical Assistance coverage in the same amount as the amount that was due in the month before the implementation of BadgerCare Plus.

49.471(3)(b)1.c. c. The individual meets all nonfinancial eligibility requirements under this section.

49.471(3)(b)1.d. d. The individual continues to be ineligible for BadgerCare Plus because of his or her income.

49.471(3)(b)2. 2. Notwithstanding subd. 1., if at any time during an individual’s 12-month eligibility extension under subd. 1. any criterion under subd. 1. a. to d. is not satisfied, the individual’s eligibility for the extended coverage is terminated and any time remaining in the eligibility period is lost.

49.471(4) (4) General eligibility criteria; applicable benefits.

49.471(4)(a) (a) Except as otherwise provided in this section, all of the following individuals are eligible for the benefits described in s. 49.46 (2) (a) and (b), subject to sub. (6) (k) and s. 49.45 (24j):

49.471(4)(a)1. 1. A pregnant woman whose family income does not exceed 200 percent of the poverty line.

49.471(4)(a)1g. 1g. A pregnant woman whose family income exceeds 200 percent but does not exceed 300 percent of the poverty line.

49.471(4)(a)1m. 1m. A pregnant woman who obtains eligibility under sub. (7) (b) 1.

49.471(4)(a)2. 2. A child who is under one year of age, whose mother was, on the day the child was born, eligible for and receiving medical assistance under subd. 1. or 5. or s. 49.46 or 49.47, and who lives with his or her mother in this state.

49.471(4)(a)2m. 2m. A child who is under one year of age, whose mother was determined to be eligible under subd. 1g., and who lives with his or her mother in this state.

49.471(4)(a)3. 3. A child whose family income does not exceed 200 percent of the poverty line. For a child under this subdivision who is an unborn child, benefits are limited to prenatal care.

49.471(4)(a)3g. 3g. A child whose family income exceeds 200 percent but does not exceed 300 percent of the poverty line. For a child under this subdivision who is an unborn child, benefits are limited to prenatal care.

49.471(4)(a)3m. 3m. A child who obtains eligibility under sub. (7) (b) 2.

49.471(4)(a)4. 4. An individual who satisfies all of the following criteria:

49.471(4)(a)4.a. a. The individual is a parent or caretaker relative of a dependent child who is living in the home with the parent or caretaker relative or who is temporarily absent from the home for not more than 6 months or, if the dependent child has been removed from the home for more than 6 months, the parent or caretaker relative is working toward unifying the family by complying with a permanency plan under s. 48.38 or 938.38. For purposes of this subdivision, a “dependent child” means an individual who is under the age of 18 or an individual who is age 18 and a full-time student in secondary school or equivalent vocational or technical training if before attaining the age of 19 the individual is reasonably expected to complete the school or training.

49.471(4)(a)4.b. b. The individual’s family income does not exceed 100 percent of the poverty line before application of the 5 percent income disregard under 42 CFR 435.603 (d).

49.471(4)(a)5. 5. An individual who, regardless of family income, was born on or after January 1, 1988, and who, on his or her 18th birthday, was in a foster care placement under the responsibility of this state, or at the option of the department, under the responsibility of another state, and enrolled in Medical Assistance under this subchapter or a Medicaid program, as determined by the department. The coverage for an individual under this subdivision ends on the last day of the month in which the individual becomes 26 years of age, unless he or she otherwise loses eligibility sooner.

49.471(4)(a)6. 6. Migrant workers and their dependents who are determined eligible under sub. (6) (f).

49.471(4)(a)7. 7. Individuals who qualify for a medical assistance eligibility extension under s. 49.46 (1) (c) or (cg) when their income increases above the poverty line, except as provided in s. 49.46 (1) (cr).

49.471(4)(d) (d) An individual is eligible to purchase coverage of the benefits described in sub. (11) for himself or herself and for his or her spouse and dependent children, at the full per member per month cost of coverage, if all of the following apply:

49.471(4)(d)1. 1. The individual lost his or her employer-sponsored health care coverage as a result of his or her employer’s or former employer’s bankruptcy.

49.471(4)(d)2. 2. After losing his or her employer-sponsored health care coverage, the individual received health care coverage through a voluntary employment benefit association that was established before August 2006.

49.471(4)(d)3. 3. The individual is not otherwise eligible for coverage under this section.

49.471(4)(d)4. 4. The individual is under 65 years of age.

49.471(4)(e) (e) If the department obtains approval from the federal department of health and human services to provide an alternate benchmark plan under sub. (11r), to the extent the federal department of health and human services approves, the department may enroll in the alternate benchmark plan under sub. (11r) any individual whose family income exceeds 100 percent of the poverty line, who is either an adult who is not pregnant or a child, and who applies and is otherwise eligible to receive benefits under this section, except that the department shall enroll a child who has a parent who is enrolled in a plan under this section in the same plan as his or her parent.

49.471(5) (5) Presumptive eligibility.

49.471(5)(a) (a) In this subsection:

49.471(5)(a)1. 1. “Qualified entity” means an entity that satisfies the requirements under 42 USC 1396r-1a (b) (3) (A), as determined by the department.

49.471(5)(a)2. 2. “Qualified provider” means a provider that satisfies the requirements under 42 USC 1396r-1 (b) (2), as determined by the department.

49.471(5)(b) (b)

49.471(5)(b)1. 1. Except as provided in sub. (6) (a) 1., a pregnant woman is eligible for the benefits specified in par. (c) during the period beginning on the day on which a qualified provider determines, on the basis of preliminary information, that the woman’s family income does not exceed 300 percent of the poverty line and ending on the applicable day specified in subd. 3.

49.471(5)(b)2. 2. Except as provided in sub. (6) (a) 2., a child who is not an unborn child is eligible for the benefits described in s. 49.46 (2) (a) and (b) during the period beginning on the day on which a qualified entity determines, on the basis of preliminary information, that the child’s family income does not exceed any of the following and ending on the applicable day specified in subd. 3., unless the federal department of health and human services approves the department’s request to not extend eligibility to children during this period:

49.471(5)(b)2.a. a. 150 percent of the poverty line for a child who is 6 years of age or older but has not yet attained the age of 19.

49.471(5)(b)2.b. b. 185 percent of the poverty line for a child who is one year of age or older but has not yet attained the age of 6.

49.471(5)(b)2.c. c. 300 percent of the poverty line for a child who is under one year of age.

49.471(5)(b)3. 3.

49.471(5)(b)3.a. a. If the woman or child applies for benefits under sub. (4) within the time required under par. (d), the benefits specified in subd. 1. or 2., whichever is applicable, end on the day on which the department or the county department under s. 46.215, 46.22, or 46.23 determines whether the woman or child is eligible for benefits under sub. (4), except that a child who is not an unborn child is not eligible for benefits described in s. 49.46 (2) (a) and (b) during that time if the federal department of health and human services approves the department’s request not to provide those benefits during that time.