Chapter 49

49.496(3)(a)2.am. am. All services provided to an individual while the individual is participating in a long-term care program.

49.496(3)(a)2.d. d. Personal care services under s. 49.46 (2) (b) 6. j.

49.496(3)(ad) (ad) The amount the department may claim against an estate of a recipient, or an estate of a nonrecipient surviving spouse, for services that are described under par. (a) 2. am. and that are provided by a managed long-term care program funded by capitated payments is equal to the amount of the capitated payment for the recipient.

49.496(3)(ag) (ag) The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.

49.496(3)(aj) (aj)

49.496(3)(aj)1. 1. Property that is subject to the department’s claim under par. (a) in the estate of a recipient or in the estate of a nonrecipient surviving spouse is all property of a decedent that is included in the estate.

49.496(3)(aj)2. 2. There is a presumption, consistent with s. 766.31, which may be rebutted, that all property in the estate of a nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property in the estate of the nonrecipient surviving spouse is subject to the department’s claim under par. (a).

49.496(3)(am) (am) The court shall reduce the amount of a claim under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent’s heirs or the beneficiaries of the decedent’s will to retain the following personal property:

49.496(3)(am)1. 1. The decedent’s wearing apparel and jewelry held for personal use.

49.496(3)(am)2. 2. Household furniture, furnishings and appliances.

49.496(3)(am)3. 3. Other tangible personal property not used in trade, agriculture or other business, not to exceed in value the amount specified in s. 861.33 (1) (a) 4.

49.496(3)(b) (b) A claim under par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.

49.496(3)(c) (c)

49.496(3)(c)1. 1. If the department’s claim is not allowable because of par. (b) and the estate includes an interest in any real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in par. (a). The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s. 863.29, 867.01 (3) (h), or 867.02 (2) (h).

49.496(3)(c)2. 2. If the department’s claim is not allowable because of par. (b), the estate includes an interest in any real property, including a home, and the personal representative closes the estate by sworn statement under s. 865.16, the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in par. (a). The personal representative shall record the statement in the same manner as described in s. 863.29, as if the statement were a final judgment.

49.496(3)(d) (d) The department may not enforce a lien under par. (c) as long as any of the following survive the decedent:

49.496(3)(d)1. 1. A spouse.

49.496(3)(d)2. 2. A child who is under age 21 or disabled.

49.496(3)(dm) (dm) All of the following apply to a lien under par. (c) that the department may not enforce because of par. (d):

49.496(3)(dm)1. 1. If the decedent’s surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.

49.496(3)(dm)2. 2. The department shall release the lien in the circumstances described in s. 49.849 (4) (c) 2.

49.496(3)(e) (e) The department may enforce a lien under par. (c) by foreclosure in the same manner as a mortgage on real property.

49.496(3)(f) (f) The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.

49.496(4) (4) Administration.

49.496(4)(a) (a) The department may require a county department under s. 46.215, 46.22, or 46.23 or the governing body of a federally recognized American Indian tribe administering medical assistance to gather and provide the department with information needed to recover medical assistance under this section. Except as provided in par. (b), the department shall pay to a county department or tribal governing body an amount equal to 5 percent of the recovery collected by the department relating to a beneficiary for whom the county department or tribal governing body made the last determination of medical assistance eligibility. A county department or tribal governing body may use funds received under this paragraph only to pay costs incurred under this paragraph and, if any amount remains, to pay for improvements to functions required under s. 49.78 (2). The department may withhold payments under this paragraph for failure to comply with the department’s requirements under this paragraph. The department shall treat payments made under this paragraph as costs of administration of the Medical Assistance program.

49.496(4)(b) (b) The department shall credit to the appropriation account under s. 20.435 (4) (im) any amount that the department would otherwise pay under par. (a) to a county department under s. 46.215 for any recovery collected by a department employee or officer, or by a county employee or officer under the management of the department.

49.496(5) (5) Use of funds. From the appropriation under s. 20.435 (4) (im), the department shall pay the amount of the payments under sub. (4) (a) that is not paid from federal funds, shall pay to the federal government the amount of the funds recovered under this section equal to the amount of federal funds used to pay the benefits recovered under this section, and shall spend the remainder of the funds recovered under this section for medical assistance benefits under this subchapter.

49.496(6) (6) Applicability.

49.496(6)(a) (a) The department may recover amounts under this section for medical assistance benefits paid on and after August 15, 1991.

49.496(6)(b) (b) The department may file a claim under sub. (3) only with respect to a recipient who dies after September 30, 1991.

49.496(6m) (6m) Waiver due to hardship. The department shall promulgate rules establishing standards for determining whether the application of this section would work an undue hardship in individual cases. If the department determines that the application of this section would work an undue hardship in a particular case, the department shall waive application of this section in that case.

49.496(7) (7) Installment payments. If a recovery under sub. (3) does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.

49.496 History History: 1991 a. 39, 269; 1993 a. 301, 437, 491; 1995 a. 27; 1997 a. 27; 1999 a. 9; 2003 a. 33; 2007 a. 20; 2009 a. 15; 2013 a. 20, 92, 151.

49.496 Annotation Preserving the Homestead of the Small Estate: Wisconsin’s Medical Assistance Recovery Law. Gilbert. Wis. Law. July 1992.

49.497 49.497 Recovery of incorrect Medical Assistance or Badger Care payments and of unpaid employer penalties.

49.497(1) (1) 

49.497(1)(a) (a) The department may recover any payment made incorrectly for benefits provided under this subchapter or s. 49.665 if the incorrect payment results from any of the following:

49.497(1)(a)1. 1. A misstatement or omission of fact by a person supplying information in an application for benefits under this subchapter or s. 49.665.

49.497(1)(a)2. 2. The failure of a Medical Assistance or Badger Care recipient or any other person responsible for giving information on the recipient’s behalf to report the receipt of income or assets in an amount that would have affected the recipient’s eligibility for benefits.

49.497(1)(a)3. 3. The failure of a Medical Assistance or Badger Care recipient or any other person responsible for giving information on the recipient’s behalf to report any change in the recipient’s financial or nonfinancial situation or eligibility characteristics that would have affected the recipient’s eligibility for benefits or the recipient’s cost-sharing requirements.

49.497(1)(b) (b) The department’s right of recovery is against any Medical Assistance or Badger Care recipient to whom or on whose behalf the incorrect payment was made. The extent of recovery is limited to the amount of the benefits incorrectly granted. The county department under s. 46.215 or 46.22 or the governing body of a federally recognized American Indian tribe administering Medical Assistance or Badger Care shall begin recovery actions on behalf of the department according to rules promulgated by the department.

49.497(1m) (1m) 

49.497(1m)(a) (a) If, after notice that an incorrect payment was made, a recipient, or parent of a minor recipient, who is liable for repayment of an incorrect payment fails to repay the incorrect payment or enter into, or comply with, an agreement for repayment, the department may bring an action to enforce the liability or may issue an order to compel payment of the liability. The department shall issue the order to compel payment personally or by any type of mail service that requires a signature of acceptance from the recipient at the address of the person who is liable for repayment as it appears on the records of the department. The refusal or failure to accept or receive the order to compel payment by the person who is liable for repayment does not prevent the department from enforcing the order to compel repayment. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order. The only issue at the hearing shall be the determination by the department that the person has not repaid the incorrect payment or entered into, or complied with, an agreement for repayment.

49.497(1m)(b) (b) If any recipient, or parent of a minor recipient, named in an order to compel payment issued under par. (a) fails to pay the department any amount due under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a true and accurate copy of the order to the circuit court for any county. An affidavit from the collections unit of the department responsible for recoveries under this section shall be evidence of the incorrect payment. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

49.497(1m)(c) (c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

49.497(1r) (1r) 

49.497(1r)(a) (a) The department may recover any penalty assessment not paid under s. 49.471 (9) (c) from the employer against which the penalty was assessed. If, after notice that payment of a penalty is overdue, the employer who is liable fails to pay the penalty amount, or enter into or comply with an agreement for payment, the department may bring an action to enforce the liability or may issue an order to compel payment of the liability. The department shall issue the order to compel payment personally or by any type of mail service that requires a signature of acceptance from the recipient at the address of the employer who is liable for repayment as it appears on the records of the department. The refusal or failure to accept or receive the order to compel payment by the employer who is liable for repayment does not prevent the department from enforcing the order to compel repayment. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order. The only issue at the hearing shall be the determination by the department that the person has not paid the penalty or entered into, or complied with, an agreement for payment.

49.497(1r)(b) (b) If any employer named in an order to compel payment issued under par. (a) fails to pay the department any amount due under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a true and accurate copy of the order to the circuit court for any county. An affidavit from the collections unit of the department responsible for recoveries under this section shall be evidence of the failure to pay the penalty. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

49.497(1r)(c) (c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

49.497(2) (2) 

49.497(2)(a) (a) Except as provided in par. (b), a county or governing body of a federally recognized American Indian tribe may retain 15 percent of benefits provided under this subchapter or s. 49.665 that are recovered under this section due to the efforts of an employee or officer of the county or tribe.

49.497(2)(b) (b) Any amount that Milwaukee County would otherwise be entitled to retain under par. (a) for benefits recovered due to the efforts of a department employee or officer, or a county employee or officer under the management of the department, shall be credited to the appropriation account under s. 20.435 (4) (L).

49.497(3) (3) Cash assets of medical assistance recipients that exceed asset limitations shall be applied against the cost of medical assistance benefits provided.

49.497(4) (4) The department may appear for the state in any and all collection matters under this section, and may commence suit in the name of the department to recover an incorrect payment from the recipient to whom or on whose behalf it was made or to recover an unpaid penalty from the employer against which the penalty was assessed.

49.497(5) (5) The department may make an agreement with a recipient, or parent of a minor recipient, who is liable under sub. (1), providing for repayment of an incorrect payment at a specified rate or amount.

49.497 History History: 1981 c. 20; 1983 a. 27, 192; 1985 a. 176; 1987 a. 27; 1989 a. 31, 173, 359; 2005 a. 25, 254; 2007 a. 20, 97; 2009 a. 15; 2017 a. 59.

49.497 Annotation There is no statutory authority to order a mother to repay lying-in expenses paid by medical assistance. State v. R.R.R., 166 Wis. 2d 306, 479 N.W.2d 237 (Ct. App. 1991).

49.498 49.498 Requirements for skilled nursing facilities.

49.498(1) (1) Definitions. In this section:

49.498(1)(a) (a) “Active treatment for developmental disability” means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual’s acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual’s current optimal functional status. “Active treatment for developmental disability” does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.

49.498(1)(b) (b) “Active treatment for mental illness” means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under ch. 448 and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.

49.498(1)(c) (c) “Developmental disability” means any of the following:

49.498(1)(c)1. 1. Significantly subaverage general intellectual functioning that is concurrent with an individual’s deficits in adaptive behavior and that manifested during the individual’s developmental period.

49.498(1)(c)2. 2. A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in 42 CFR 435.1009.

49.498(1)(d) (d) “Licensed health professional” has the meaning given under 42 USC 1396r (b) (5) (G).

49.498(1)(e) (e) “Managing employee” means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.

49.498(1)(f) (f) “Medicare” means coverage under part A or part B of Title XVIII of the federal social security act, 42 USC 1395 to 1395zz.

49.498(1)(g) (g) “Mental illness” has the meaning given under 42 USC 1396r (e) (7) (G) (i).

49.498(1)(h) (h) “Nurse aide” has the meaning given under 42 USC 1396r (b) (5) (F).

49.498(1)(i) (i) “Nursing facility” has the meaning given under 42 USC 1396r (a).

49.498(1)(j) (j) “Physician” has the meaning given under s. 448.01 (5).

49.498(1)(k) (k) “Psychopharmacologic drugs” means drugs that modify psychological functions and mental states.

49.498(1)(L) (L) “Registered professional nurse” means a registered nurse who is licensed under ch. 441 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k).

49.498(1)(m) (m) “Resident” means an individual who resides in a nursing facility.

49.498(2) (2) Requirements relating to provision of services.

49.498(2)(a) (a)

49.498(2)(a)1. 1. A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.

49.498(2)(a)2. 2. A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:

49.498(2)(a)2.a. a. Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.

49.498(2)(a)2.b. b. Develop and implement appropriate plans of action to correct identified quality deficiencies.

49.498(2)(a)3. 3. A quality assessment and assurance committee described under subd. 2. may establish written guidelines or procedures for making therapeutic alternate drug selections for the purposes of s. 450.01 (16) (hm) if the committee members include a pharmacist, as defined in s. 450.01 (15).

49.498(2)(b) (b) A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:

49.498(2)(b)1. 1. Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;

49.498(2)(b)2. 2. Is initially prepared, with participation to the extent practicable of the resident or the resident’s family or legal counsel, by a team which includes the resident’s attending physician and a registered professional nurse who has responsibility for the resident; and

49.498(2)(b)3. 3. Is periodically reviewed and revised by the team in subd. 2. after the conduct of an assessment under par. (c).

49.498(2)(c) (c)

49.498(2)(c)1. 1. A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident’s functional capacity that:

49.498(2)(c)1.a. a. Describes the resident’s capability to perform daily life functions and significant impairments in the resident’s functional capacity.

49.498(2)(c)1.b. b. Is based on a uniform minimum data set of core elements and common definitions specified as required under 42 USC 1395i-3 (f) (6) (A).