Chapter 49

49.84(7)(a)2. 2. “Medical Assistance” means the Medical Assistance program under subch. IV.

49.84(7)(b) (b) Except as provided in par. (c), for determining eligibility or continued eligibility the department shall electronically verify the residence of an applicant for or recipient of Medical Assistance. If the department is unable to verify the applicant’s or recipient’s residence electronically, the applicant or recipient must provide adequate proof of residency, in the manner determined by the department, to be eligible for Medical Assistance.

49.84(7)(c) (c) The requirements under par. (b) do not apply with respect to any of the following:

49.84(7)(c)1. 1. An individual who is receiving benefits under the food stamp program under 7 USC 2011 to 2029 or under the Temporary Assistance for Needy Families block grant program and who presented an acceptable form of residency verification for receipt of those benefits.

49.84(7)(c)2. 2. An individual who resides in a nursing home, intermediate care facility, inpatient psychiatric hospital, or other residential care facility and whose care in the facility is paid for by Medical Assistance.

49.84(7)(c)3. 3. A child residing in a foster care placement under the care and placement responsibility of a county department under s. 46.215, 46.22, or 46.23 or, in a county with a population of 750,000 or more, under the care and placement responsibility of the department of children and families.

49.84 History History: 1971 c. 334; 1979 c. 221; 1985 a. 29 ss. 1005m, 3200 (23); 1985 a. 315; 1989 a. 31; 1995 a. 27 ss. 2798 to 2801b, 2803, 2804, 3210, 3211, 9126 (19); Stats. 1995 s. 49.84; 1995 a. 289; 2007 a. 20 ss. 1678 to 1680, 9121 (6) (a); 2013 a. 20; 2013 a. 116 s. 29; 2013 a. 117 s. 2, 3; 2015 a. 172; 2017 a. 334.

49.845 49.845 Fraud investigation and error reduction.

49.845(1) (1) Fraud investigation. From the appropriations under s. 20.435 (4) (bn), (kz), (L), and (nn), the department of health services shall establish a program to investigate suspected fraudulent activity on the part of recipients of medical assistance under subch. IV, food stamp benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, and health care benefits under the Badger Care health care program under s. 49.665 and, if the department of children and families contracts with the department of health services under sub. (4), on the part of recipients of aid to families with dependent children under s. 49.19 and participants in the Wisconsin Works program under ss. 49.141 to 49.161. The activities of the department of health services under this subsection may include comparisons of information provided to the department by an applicant and information provided by the applicant to other federal, state, and local agencies, development of an advisory welfare investigation prosecution standard, and provision of funds to county departments under ss. 46.215, 46.22, and 46.23 and to Wisconsin Works agencies to encourage activities to detect fraud. The department of health services shall cooperate with district attorneys regarding fraud prosecutions.

49.845(2) (2) State error reduction activities. The department of health services shall conduct activities to reduce payment errors in the Medical Assistance program under subch. IV, the food stamp program under 7 USC 2011 to 2036, the supplemental security income payments program under s. 49.77, the program providing payments for the support of children of supplemental security income recipients under s. 49.775, and the Badger Care health care program under s. 49.665 and, if the department of children and families contracts with the department of health services under sub. (4), in Wisconsin Works under ss. 49.141 to 49.161.

49.845(3) (3) Wisconsin Works agency error reduction. If the department of children and families contracts with the department of health services under sub. (4), the department of health services shall provide funds from the appropriation under s. 20.435 (4) (kz) to Wisconsin Works agencies to offset the administrative costs of reducing payment errors in Wisconsin Works under ss. 49.141 to 49.161.

49.845(4) (4) Contract for Wisconsin Works.

49.845(4)(a) (a)

49.845(4)(a)1. 1. Notwithstanding s. 49.197 (1m) and (3), the department of children and families may contract with the department of health services to investigate suspected fraudulent activity on the part of recipients of aid to families with dependent children under s. 49.19 and participants in Wisconsin Works under ss. 49.141 to 49.161 and to conduct activities to reduce payment errors in Wisconsin Works under ss. 49.141 to 49.161, as provided in this section. If any employee of the department of health services reasonably suspects that fraudulent activity as described in this subdivision has occurred or is occurring, the employee shall immediately report the facts and circumstances contributing to that suspicion to the employee’s immediate supervisor.

49.845(4)(a)2. 2. An immediate supervisor who receives a report under subd. 1. shall immediately evaluate the report to determine whether there is reason to suspect that the fraudulent activity has occurred or is occurring. If the immediate supervisor determines that there is reason to suspect that the fraudulent activity has occurred or is occurring, the immediate supervisor shall immediately report the facts and circumstances contributing to that suspicion to the sheriff and to the unit of the department of health services that is responsible for investigating suspected fraudulent activity as described in subd. 1.

49.845(4)(a)3. 3. Except as provided in subd. 2., an immediate supervisor who receives a report under subd. 1. shall keep the identity of the reporter confidential. A sheriff or unit of the department of health services that receives a report under subd. 2. shall keep the identity of the employee reporting under subd. 1. and the immediate supervisor reporting under subd. 2. confidential until the sheriff or unit determines that the report merits further investigation. If the sheriff or unit conducts a full investigation, the sheriff or unit shall keep the identity of that employee and immediate supervisor confidential if it is reasonably possible to do so. Any person who fails to report as required in subd. 1. or 2. may be required to forfeit not more than $1,000.

49.845(4)(b) (b) Any person participating in good faith in the making of a report under par. (a) 1. or 2. or in initiating, participating in, or testifying in, any action or proceeding in which fraudulent activity as described in par. (a) 1. is alleged shall have immunity from any liability, civil or criminal, that results by reason of the action. For the purpose of any proceeding, civil or criminal, the good faith of any person reporting under par. (a) 1. or 2. shall be presumed.

49.845(4)(c) (c) The department of health services or an employee of that department may not take disciplinary action against, or threaten to take disciplinary action against, any person because the person in good faith reported any information under par. (a) 1. or 2. or initiated, participated in, or testified in, any action or proceeding in which fraudulent activity as described in par. (a) 1. was alleged or because that department or employee believes that the person in good faith reported any information under par. (a) 1. or 2. or initiated, participated in, or testified in, such an action or proceeding.

49.845(4)(d) (d) Any person who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of par. (c) may file a complaint with the department of workforce development under s. 106.54 (9). If that department finds that a violation of par. (c) has been committed, that department may take such action under s. 111.39 as will effectuate the purpose of this section. Section 111.322 (2m) applies to a disciplinary action arising in connection with any proceeding under this paragraph.

49.845 History History: 2005 a. 25; 2007 a. 20 ss. 1681 to 1684, 9121 (6) (a); 2009 a. 76 ss. 37q to 37t; 2011 a. 260 s. 80.

49.846 49.846 Jurisdiction of the department of justice.

49.846(1) (1) In this section, “public assistance program” means any program administered by the department of health services or the department of children and families under this chapter under which the department administering the program provides services, benefits, or other assistance to individuals or families.

49.846(2) (2) The department of justice or the district attorney may institute, manage, control, and direct, in the proper county, any prosecution for violation of criminal laws affecting a public assistance program, including laws in this chapter, chs. 939 to 951 relating to Medical Assistance, Wisconsin Works, the food stamp program, or any other public assistance program, and laws affecting the health, safety, and welfare of public assistance program recipients. For this purpose the department of justice shall have and exercise all powers conferred upon district attorneys in such cases. If a prosecution under this section involves a person holding a license granted by the medical examining board or an interested affiliated credentialing board, the department of justice or district attorney shall notify the medical examining board or the interested affiliated credentialing board of the prosecution.

49.846 History History: 1977 c. 418; 1985 a. 340; 1993 a. 107; 1995 a. 27; 2013 a. 226 ss. 32, 33, 47; Stats. 2013 s. 49.846.

49.847 49.847 Recovery of incorrect payments under certain public assistance programs.

49.847(1) (1) Subject to ss. 49.497 (1) and 49.793 (1), the department of health services, or a county, multicounty consortium, as defined in s. 49.78 (1) (br), or elected governing body of a federally recognized American Indian tribe or band acting on behalf of the department, may recover benefits incorrectly paid under any of the programs administered by the department under this chapter.

49.847(2) (2) The department, county, multicounty consortium, as defined in s. 49.78 (1) (br), or elected governing body may recover an overpayment from a family or individual who continues to receive benefits under any program administered by the department under this chapter by reducing the family’s or individual’s benefit amount. Subject to s. 49.793 (1), the department may by rule specify other methods for recovering incorrectly paid benefits.

49.847(3) (3) 

49.847(3)(a) (a) Subject to ss. 49.497 (2) and 49.793 (2), and except as provided in par. (b), a county or elected governing body may retain a portion of an amount recovered under this section due to the efforts of an employee or officer of the county, tribe, or band, as provided by the department by rule.

49.847(3)(b) (b) Any amount that Milwaukee County would otherwise be entitled to retain under par. (a) for the recovery of an amount under this section 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).

49.847 History History: 2005 a. 25; 2007 a. 20 s. 9121 (6) (a); 2009 a. 15; 2011 a. 32.

49.847 Cross-reference Cross-reference: See also ch. DHS 2, Wis. adm. code.

49.849 49.849 Recovery of correct payments under certain public assistance programs.

49.849(1) (1) Definitions. In this section:

49.849(1)(a) (a) “Decedent” means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.

49.849(1)(b) (b) “Department” means the department of health services.

49.849(1)(c) (c) “Nonrecipient surviving spouse” means any of the following:

49.849(1)(c)1. 1. A person who was married to a recipient when the recipient was receiving or received public assistance and who survived the recipient.

49.849(1)(c)2. 2. A person who was married to a recipient on whose behalf aid under s. 49.785 was provided, who was married to the recipient at the recipient’s death or when the recipient was receiving or received any of the benefits described in s. 49.785 (1c) that made the recipient an eligible recipient under s. 49.785, or at both times, and who survived the recipient.

49.849(1)(d) (d) “Property of a decedent” means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.

49.849(1)(e) (e) “Public assistance” means any services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV, or aid under s. 49.68, 49.683, 49.685, or 49.785.

49.849(1)(f) (f) “Recipient” means a person who received public assistance.

49.849(2) (2) Recoverable amounts.

49.849(2)(a) (a) Subject to par. (b), the department may collect from the property of a decedent by affidavit under sub. (3) (b) or by lien under sub. (4) (a) an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), the long-term community support services under s. 46.27, 2017 stats., that is recoverable under s. 46.27 (7g) (c) 1., 2017 stats., or the aid under s. 49.68, 49.683, 49.685, or 49.785 that is recoverable under s. 49.682 (2) (a) or (am), and that was paid on behalf of the decedent or the decedent’s spouse, if all of the following conditions are satisfied:

49.849(2)(a)1. 1. The decedent died after September 30, 1991, or for the recovery of aid under s. 49.785 the decedent died after July 14, 2015.

49.849(2)(a)2. 2. The decedent is not survived by a spouse, a child who is under age 21, or a child who is disabled, as defined in s. 49.468 (1) (a) 1. This subdivision does not apply for the recovery of aid under s. 49.785.

49.849(2)(b) (b) The department shall reduce the amount of its recovery under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent’s heirs or beneficiaries under the decedent’s will to retain the following personal property of the decedent:

49.849(2)(b)2. 2. Wearing apparel and jewelry held for personal use.

49.849(2)(b)3. 3. Household furniture, furnishings, and appliances.

49.849(2)(b)4. 4. Other tangible personal property not used in trade, agriculture, or other business, not exceeding in value the amount specified in s. 861.33 (1) (a) 4.

49.849(2)(c) (c) There is a presumption, consistent with s. 766.31, which may be rebutted, that all property of the deceased nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property of the deceased nonrecipient surviving spouse is subject to the department’s claim under par. (a).

49.849(3) (3) Transmittal of property upon receipt of affidavit.

49.849(3)(a) (a) Any property of a decedent that is transferred by a person who has possession of the property at the time of the decedent’s death is subject to the right of the department to recover the amounts specified in sub. (2) (a). Upon request, the person who transferred the property shall provide to the department information about the property of the decedent that the person has transferred and information about the persons to whom the property was transferred.

49.849(3)(b) (b) A person who possesses or receives property of a decedent shall transmit the property to the department, if the conditions in sub. (2) (a) 1. and, if applicable, sub. (2) (a) 2. are satisfied, upon receipt of an affidavit by a person designated by the secretary of health services to administer this section showing that the department paid on behalf of the decedent or the decedent’s spouse recoverable benefits specified in sub. (2) (a). Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.

49.849(3)(c) (c) An affidavit under this subsection shall contain all of the following information:

49.849(3)(c)1. 1. That the department has a claim against the property that it intends to recover from the property.

49.849(3)(c)2. 2. The amount of and basis for the claim.

49.849(3)(c)3. 3. That the person may have a right to an administrative hearing under sub. (5m), which must be requested within 45 days after the department sent the affidavit, on the extent and fair market value of the recipient’s interest in the property.

49.849(3)(c)4. 4. How to request an administrative hearing under sub. (5m).

49.849(3)(c)5. 5. That the person may request from the department a hardship waiver, if the person co-owned the property with the decedent or is a beneficiary of the property. This subdivision does not apply for the recovery of aid under s. 49.785.

49.849(3)(c)6. 6. How to request a hardship waiver under subd. 5. This subdivision does not apply for the recovery of aid under s. 49.785.

49.849(4) (4) Recovery against real property.

49.849(4)(a) (a) If the condition in sub. (2) (a) 1. is satisfied, the department shall have a lien in the amount that it may recover under sub. (2) (a) on any interest in any property of the decedent that is real property, including a home, as defined in s. 49.496 (1) (b). The department may record the lien in the office of the register of deeds of the county in which the real property is located.

49.849(4)(b) (b) Except as provided in par. (bm), the department may enforce a lien under par. (a) by foreclosure in the same manner as a mortgage on real property, unless any of the following is alive:

49.849(4)(b)1. 1. The decedent’s spouse.

49.849(4)(b)2. 2. A child of the decedent if the child is under age 21 or disabled, as defined in s. 49.468 (1) (a) 1.

49.849(4)(bm) (bm) The department may enforce a lien under par. (a) for the recovery of aid under s. 49.785 by foreclosure in the same manner as a mortgage on real property regardless of whether the decedent’s spouse or any child of the decedent is alive.

49.849(4)(c) (c) All of the following apply to a lien under par. (a) that the department may not enforce because of par. (b):

49.849(4)(c)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.

49.849(4)(c)2. 2. The department shall release the lien if any of the following applies:

49.849(4)(c)2.a. a. The recipient’s surviving spouse or child who is under age 21 or disabled sells the property for fair market value, as described in sub. (5c) (d), during the spouse’s or child’s lifetime.

49.849(4)(c)2.b. b. The recipient’s surviving spouse or child who is under age 21 or disabled transfers the property for less than fair market value, as described in sub. (5c) (d), during the spouse’s or child’s lifetime, the transferee sells the property during the spouse’s or child’s lifetime and places proceeds equal to the lesser of the department’s lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient’s spouse or disabled child or when the recipient’s child who is not disabled reaches age 21.

49.849(4)(c)2.c. c. The surviving owner or transferee of the property, who is not the recipient’s surviving spouse or child who is under age 21 or disabled, sells the property during the lifetime of the recipient’s surviving spouse or child who is under age 21 or disabled and places proceeds equal to the lesser of the department’s lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient’s spouse or disabled child or when the recipient’s child who is not disabled reaches age 21.

49.849(4m) (4m) Allowable costs of sale of real property.

49.849(4m)(a) (a) Subject to par. (b), if any property of a decedent that is real property has been sold after the death of the decedent, only the following reasonable expenses, if any, incurred in preserving or disposing of the real property may be deducted from the sale proceeds that the department may recover:

49.849(4m)(a)1. 1. Closing costs of sale, including reasonable attorney fees of the seller, the cost of title insurance, and recording costs.

49.849(4m)(a)2. 2. Property insurance premiums.

49.849(4m)(a)3. 3. Property taxes due.

49.849(4m)(a)4. 4. Utility costs necessary to preserve the property.

49.849(4m)(a)5. 5. Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired.

49.849(4m)(b) (b) Any expense under par. (a) may be deducted from the sale proceeds only if it is documented and approved by the department and it was not incurred while any other individual was living on the property.

49.849(5) (5) Other valid claims. If a person has a valid claim against property of the decedent that would have a higher priority under s. 859.25 (1) if the property were subject to administration than the department would have under s. 859.25 (1) (e) and the person demands payment in writing within one year of the date on which the property was transmitted to the department, the department shall pay to the person the value of the property collected under sub. (3) or the amount of the claim, whichever is less. The department may authorize any person who possesses property of the decedent to honor higher priority claims with the decedent’s property before transmitting property to the department.

49.849(5c) (5c) Value of recipient’s interest. For purposes of determining the value of the recipient’s interest in property of the decedent, all of the following apply:

49.849(5c)(a) (a) If the recipient held title to real property jointly with one or more persons other than his or her spouse, the recipient’s interest in the real property is equal to the fractional interest that the recipient would have had in the property if the property had been held with the other owner or owners as tenants in common.

49.849(5c)(b) (b) If the recipient held title to personal property jointly with one or more persons other than his or her spouse, the recipient’s interest in the personal property is equal to either of the following:

49.849(5c)(b)1. 1. The percentage interest that was attributed to the recipient when his or her eligibility for public assistance was determined.

49.849(5c)(b)2. 2. If the percentage interest was not determined as provided in subd. 1., the fractional interest that the recipient would have had in the property if the property had been held with the other co-owner or co-owners as tenants in common.

49.849(5c)(c) (c) If the recipient held a life estate in real property, the recipient’s interest is equal to the recipient’s percentage of ownership in the property based on the recipient’s age on the date of death and calculated using the fair market value of the property and life estate-remainderman tables used by the department to value life estates for purposes of determining eligibility for Medical Assistance.

49.849(5c)(d) (d) A property’s fair market value is the price that a willing buyer would pay a willing seller for the purchase of the property. The burden of proof for establishing a property’s fair market value is on the surviving owners or beneficiaries, or their representatives. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.