Chapter 49

49.858 Cross-reference Cross-reference: See also ch. DCF 152, Wis. adm. code.

49.86 49.86 Disbursement of funds and facsimile signatures.

49.86(1) (1) In this section:

49.86(1)(a) (a) “Department” means the department of children and families.

49.86(1)(b) (b) “Secretary” means the secretary of children and families.

49.86(2) (2) Withdrawal or disbursement of moneys deposited in a public depository, as defined in s. 34.01 (5), to the credit of the department or any of its divisions or agencies shall be by check, share draft, or other draft signed by the secretary or by one or more persons in the department designated by written authorization of the secretary. Such checks, share drafts, and other drafts shall be signed personally or by use of a mechanical device adopted by the secretary or his or her designees for affixing a facsimile signature. Any public depository shall be fully warranted and protected in making payment on any check, share draft, or other draft bearing such facsimile signature notwithstanding that the facsimile may have been placed thereon without the authority of the secretary or his or her designees.

49.86 History History: 1995 a. 27 ss. 3213, 9130 (4); 1997 a. 3; 2007 a. 20.

49.89 49.89 Third party liability.

49.89(1) (1) Definition. In this section, “insurer” includes a sponsor, other than an insurer, that contracts to provide health care services to members of a group.

49.89(2) (2) Subrogation. The department of health services, the department of children and families, a county, or an elected tribal governing body that provides any public assistance under this chapter or under s. 253.05 as a result of the occurrence of an injury, sickness, or death that creates a claim or cause of action, whether in tort or contract, on the part of a public assistance recipient or beneficiary or the estate of a recipient or beneficiary against a 3rd party, including an insurer, is subrogated to the rights of the recipient, beneficiary or estate and may make a claim or maintain an action or intervene in a claim or action by the recipient, beneficiary, or estate against the 3rd party. Subrogation under this subsection because of the provision of medical assistance under subch. IV constitutes a lien, equal to the amount of the medical assistance provided as a result of the injury, sickness, or death that gave rise to the claim. The lien is on any payment resulting from a judgment or settlement that may be due the obligor. A lien under this subsection continues until it is released and discharged by the department of health services.

49.89(3) (3) Assignment of actions. By applying for assistance under this chapter or under s. 253.05, an applicant assigns to the state department, the county department or the tribal governing body that provided the assistance the right to make a claim to recover an indemnity from a 3rd party, including an insurer, if the assistance is provided as a result of the occurrence of injury, sickness or death that results in a possible recovery of an indemnity from the 3rd party.

49.89(3m) (3m) Notice requirements.

49.89(3m)(a) (a) An attorney retained to represent a current or former recipient of assistance under this chapter, or the recipient’s estate, in asserting a claim that is subrogated under sub. (2) or assigned under sub. (3) shall provide notice under par. (c).

49.89(3m)(b) (b) If no attorney is retained to represent a current or former recipient of assistance under this chapter, or the recipient’s estate, in asserting a claim that is subrogated under sub. (2) or assigned under sub. (3), the current or former recipient or his or her guardian or, if the recipient is deceased, the personal representative of the recipient’s estate, shall provide notice under par. (c).

49.89(3m)(bm) (bm) A person against whom a claim that is subrogated under sub. (2) or assigned under sub. (3) is made, or that person’s attorney or insurer, shall provide notice under par. (c), if that person, attorney or insurer knows, or could reasonably determine, that the claimant is a recipient or former recipient of medical assistance under subch. IV, or is the estate of a former recipient of medical assistance under subch. IV.

49.89(3m)(c) (c) If a person is required to provide notice under this paragraph, the person shall provide notice by certified mail to the department that provided the assistance as soon as practicable after the occurrence of each of the following events for a claim under par. (a) or (b):

49.89(3m)(c)1. 1. The filing of the action asserting the claim.

49.89(3m)(c)2. 2. Intervention in the action asserting the claim.

49.89(3m)(c)3. 3. Consolidation of the action asserting the claim.

49.89(3m)(c)4. 4. An award or settlement of all or part of the claim.

49.89(4) (4) Control of action. The applicant or recipient or any party having a right under this section may make a claim against the 3rd party or may commence an action and shall join the other party as provided under s. 803.03 (2). Each shall have an equal voice in the prosecution of such claim or action.

49.89(5) (5) Recovery; how computed. Reasonable costs of collection including attorney fees shall be deducted first. The amount of assistance granted as a result of the occurrence of the injury, sickness or death shall be deducted next and the remainder shall be paid to the public assistance recipient or other party entitled to payment.

49.89(6) (6) Departments’ duties and powers. The department of health services and the department of children and families shall enforce their rights under this section and may contract for the recovery of any claim or right of indemnity arising under this section.

49.89(7) (7) Payments to local units of government.

49.89(7)(a) (a) Except as provided in par. (f), any county or elected tribal governing body that has made a recovery under this section shall receive an incentive payment from the sum recovered as provided under this subsection.

49.89(7)(b) (b) The incentive payment shall be an amount equal to 15 percent of the amount recovered because of benefits paid under s. 49.46, 49.465, 49.468, 49.47, or 49.471. The incentive payment shall be taken from the federal share of the sum recovered as provided under 42 CFR 433.153 and 433.154.

49.89(7)(bm) (bm) The incentive payment shall be an amount equal to 15 percent of the amount recovered because of benefits paid as state supplemental payments under s. 49.77. The incentive payment shall be taken from the state share of the sum recovered.

49.89(7)(c) (c) The incentive payment shall be an amount equal to 15 percent of the amount recovered because of benefits paid under s. 49.20, 1997 stats., or s. 49.19, 49.785, or 253.05. The incentive payment shall be taken from the state share of the sum recovered, except that the incentive payment for an amount recovered because of benefits paid under s. 49.19 shall be considered an administrative cost under s. 49.19 for the purpose of claiming federal funding.

49.89(7)(d) (d)

49.89(7)(d)1. 1. Any county or elected tribal governing body that has made a recovery under this section for which it is eligible to receive an incentive payment under par. (b) or (bm) shall report such recovery to the department of health services within 30 days after the end of the month in which the recovery is made in a manner specified by the department of health services.

49.89(7)(d)2. 2. Any county or elected tribal governing body that has made a recovery under this section for which it is eligible to receive an incentive payment under par. (c) shall report such recovery to the department of children and families within 30 days after the end of the month in which the recovery is made in a manner specified by the department of children and families.

49.89(7)(e) (e) The amount of the recovery remaining after payments are made under pars. (b) to (c) shall be deposited in the state treasury and credited to the appropriation from which the assistance was originally paid.

49.89(7)(f) (f) The amount of any incentive payment to which Milwaukee County would otherwise be entitled under this subsection for a recovery under this section due to the efforts of an employee or officer of the department of health services, or a county employee or officer under the management of the department of health services, shall be credited to the appropriation account under s. 20.435 (4) (im).

49.89(8) (8) Welfare claims not prejudiced by recipient’s release.

49.89(8)(a) (a) No person who has or may have a claim or cause of action in tort or contract and who has received assistance under this chapter or under s. 253.05 as a result of the occurrence that creates the claim or cause of action may release the liable party or the liable party’s insurer from liability to the units of government specified in sub. (2). Any payment to a beneficiary or recipient of assistance under this chapter or under s. 253.05 in consideration of a release from liability is evidence of the payer’s liability to the unit of government that granted the assistance.

49.89(8)(b) (b) Liability under par. (a) is to the extent of assistance payments under this chapter or under s. 253.05 resulting from the occurrence creating the claim or cause of action, but not in excess of any insurance policy limits, counting payments made to the injured person. The unit of government administering assistance shall include in its claim any assistance paid to or on behalf of dependents of the injured person, to the extent that eligibility for assistance resulted from the occurrence creating the claim or cause of action.

49.89(9) (9) Powers of health maintenance organizations. A health maintenance organization or other prepaid health care plan has the powers of the department of health services under subs. (2) to (5) to recover the costs which the organization or plan incurs in treating an individual if all of the following circumstances are present:

49.89(9)(a) (a) The costs result from an occurrence of an injury or sickness of an individual who is a recipient of medical assistance.

49.89(9)(b) (b) The occurrence of the injury or sickness creates a claim or cause of action on the part of the recipient or the estate of the recipient.

49.89(9)(c) (c) The medical costs are incurred during a period for which the department of health services pays a capitation or enrollment fee for the recipient.

49.89 History History: 1977 c. 29; 1979 c. 221; 1981 c. 20; 1983 a. 27, 465; 1985 a. 29 ss. 1051, 1052, 3200 (23); 1987 a. 27 s. 3202 (24); 1989 a. 31; 1995 a. 27 ss. 3152 to 3177, 3214, 3215, 9126 (19), 9130 (4); Stats. 1995 s. 49.89; 1995 a. 407; 1997 a. 3; 1999 a. 9; 2007 a. 20 ss. 1750 to 1753, 9121 (6) (a); 2007 a. 96; 2009 a. 15.

49.89 Annotation Counties were entitled to be reimbursed for medical assistance from insurance settlements obtained by accident victims despite the fact that neither victim had been fully compensated. Waukesha County v. Johnson, 107 Wis. 2d 155, 320 N.W.2d 1 (Ct. App. 1982).

49.89 Annotation A county could recoup medical assistance payments from a recipient who was a minor. Perkins v. Utnehmer, 122 Wis. 2d 497, 361 N.W.2d 739 (Ct. App. 1984).

49.89 Annotation This section, not s. 49.45 (19) (a) 2., specifically addresses the assignment of actions and subrogation of rights by a public assistance recipient who is injured and has a tort claim against a third party. Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, 98-0294.

49.89 Annotation Attorney’s fees are not chargeable against public assistance recovered in an action under this section. 70 Atty. Gen. 61.

49.89 Annotation An Arkansas law that automatically imposed a lien on tort settlements in an amount equal to the state’s Medicaid’s costs incurred on behalf of the settlement recipient, including settlement proceeds meant to compensate the recipient for damages distinct from medical costs like pain and suffering, lost wages, and loss of future earnings, contravened federal law and was therefore unenforceable. A state cannot lay claim to more than the portion of the settlement that represents medical expenses. Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006).

49.89 Annotation Under 42 USC 1396k (a) (1) (A), the federal Medicaid Act permits a state to seek reimbursement from settlement payments allocated for future medical care. Gallardo v. Marstiller, 596 U.S. ___, 142 S. Ct. 1751, 213 L. Ed. 2d 1 (2022).

49.90 49.90 Liability of relatives; enforcement.

49.90(1) (1) 

49.90(1)(a) (a)

49.90(1)(a)1. 1. The parent and spouse of any dependent person who is unable to maintain himself or herself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is; but no parent shall be required to support a child 18 years of age or older.

49.90(1)(a)2. 2. Except as provided under subs. (11) and (13) (a), the parent of a dependent person under the age of 18 shall maintain a child of the dependent person so far as the parent is able and to the extent that the dependent person is unable to do so. The requirement under this subdivision does not supplant any requirement under subd. 1. and applies regardless of whether a court has ordered maintenance by the parent of the dependent person or established a level of maintenance by the parent of the dependent person.

49.90(1)(b) (b) For purposes of this section those persons receiving benefits under federal Title XVI or under s. 49.77 shall not be deemed dependent persons.

49.90(1)(c) (c) For the purpose of determining the ability of a parent or spouse to maintain a dependent person or the ability of a parent to support the child of his or her dependent child under the age of 18, credit granted under subch. VIII of ch. 71 shall not be considered.

49.90(1m) (1m) Each spouse has an equal obligation to support the other spouse as provided in this chapter. Each parent has an equal obligation to support his or her minor children as provided in this chapter and chs. 48 and 938. Each parent of a dependent person under the age of 18 has an equal obligation to support the child of the dependent person as provided under sub. (1) (a) 2.

49.90(2) (2) Upon failure of these relatives to provide maintenance the authorities or board shall submit to the corporation counsel a report of its findings. Upon receipt of the report the corporation counsel shall, within 60 days, apply to the circuit court for the county in which the dependent person under sub. (1) (a) 1. or the child of a dependent person under sub. (1) (a) 2. resides for an order to compel the maintenance. Upon such an application the corporation counsel shall make a written report to the county department under s. 46.215, 46.22, or 46.23, with a copy to the chairperson of the county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department, and to the department of health services or the department of children and families, whichever is appropriate.

49.90(2g) (2g) In addition to the remedy specified in sub. (2), upon failure of a grandparent to provide maintenance under sub. (1) (a) 2., another grandparent who is or may be required to provide maintenance under sub. (1) (a) 2., a child of a dependent minor or the child’s parent may apply to the circuit court for the county in which the child resides for an order to compel the provision of maintenance. A county department under s. 46.215, 46.22, or 46.23, a county child support agency under s. 59.53 (5), or the department of children and families may initiate an action to obtain maintenance of the child by the child’s grandparent under sub. (1) (a) 2., regardless of whether the child receives public assistance.

49.90(2r) (2r) An action under sub. (2) or (2g) for maintenance of a grandchild by a grandparent may be joined with an action to determine paternity under s. 767.80 (1) or an action for child support under s. 767.001 (1) (f) or (j) or 767.501, or both.

49.90(3) (3) At least 10 days prior to the hearing on the application under sub. (2) or (2g), notice of the hearing shall be served upon the grandparent or other relative who is alleged not to have provided maintenance, in the manner provided for the service of summons in courts of record.

49.90(4) (4) The circuit court shall in a summary way hear the allegations and proofs of the parties and by order require maintenance from these relatives, if they have sufficient ability, considering their own future maintenance and making reasonable allowance for the protection of the property and investments from which they derive their living and their care and protection in old age, in the following order: First the husband or wife; then the father and the mother; and then the grandparents in the instances in which sub. (1) (a) 2. applies. The order shall specify a sum which will be sufficient for the support of the dependent person under sub. (1) (a) 1. or the maintenance of a child of a dependent person under sub. (1) (a) 2., to be paid weekly or monthly, during a period fixed by the order or until the further order of the court. If the court is satisfied that any such relative is unable wholly to maintain the dependent person or the child, but is able to contribute to the person’s support or the child’s maintenance, the court may direct 2 or more of the relatives to maintain the person or the child and prescribe the proportion each shall contribute. If the court is satisfied that these relatives are unable together wholly to maintain the dependent person or the child, but are able to contribute to the person’s support or the child’s maintenance, the court shall direct a sum to be paid weekly or monthly by each relative in proportion to ability. Contributions directed by court order, if for less than full support, shall be paid to the department of health services or the department of children and families, whichever is appropriate, and distributed as required by state and federal law. An order under this subsection that relates to maintenance required under sub. (1) (a) 2. shall specifically assign responsibility for and direct the manner of payment of the child’s health care expenses, subject to the limitations under subs. (1) (a) 2. and (11). Upon application of any party affected by the order and upon like notice and procedure, the court may modify such an order. Obedience to such an order may be enforced by proceedings for contempt.

49.90(5) (5) Any party aggrieved by such order may appeal therefrom but when the appeal is taken by the authorities having charge of the dependent person an undertaking need not be filed.

49.90(6) (6) If any relative who has been ordered to maintain an institutionalized dependent person or an institutionalized child of a dependent person under 18 years of age neglects to do as ordered, the authorities in charge of the dependent or child or in charge of the institution may recover in an action on behalf of the relief agency or institution for relief or support accorded the dependent person or child against such relative while the order was disobeyed and up to the time of judgment, with costs.

49.90(7) (7) When the income of a responsible relative is such that the relative would be expected to make a contribution to the support of the recipient and such recipient lives in the relative’s home and requires care, a reasonable amount may be deducted from the expected contribution in exchange for the care provided.

49.90(9) (9) In any action under this section the court may impose any sum ordered paid by a party as a charge upon any specific real estate of the party liable or may require sufficient security to be given for payment according to the judgment or order.

49.90(10) (10) If an action under this section relates to support or maintenance of a child, to the extent appropriate the court shall determine maintenance or support in the manner in which support is determined under s. 767.511.

49.90(11) (11) Except as provided in sub. (13) (b), the parent of a dependent person who is under the age of 18 and is alleged to be the father of a child is responsible for maintenance of that child only if the paternity of the child has been determined to be that of the dependent person as provided in subch. VIII of ch. 48 or under subch. IX of ch. 767. Subject to the limitations under sub. (1) (a), if a parent of a dependent person is liable for the health care expenses of the dependent person’s child under sub. (4), this liability extends to all expenses of the child’s medical care and treatment, including those associated with the childbirth, regardless of whether they were incurred prior to the determination of paternity and regardless of whether the determination of paternity is made after the child’s father attains 18 years of age, except that the period for which maintenance payment is ordered for the parent of a dependent person may not extend beyond the date on which the dependent person attains 18 years of age. The court may limit the liability of the dependent person’s parent for the child’s medical expenses if the expenses exceed 5 percent of the parent’s federal adjusted gross income for the previous taxable year, if the parent files separately, or 5 percent of the sum of the parents’ federal adjusted gross income for the previous taxable year, if the parents file jointly.

49.90(12) (12) The parent of a dependent person who maintains a child of the dependent person under sub. (1) (a) 2. may, after the dependent person attains the age of 18, apply to the circuit court for the county in which the child resides for an order to compel restitution by the dependent person of the amount of maintenance provided to the dependent person’s child by that parent. The circuit court shall in a summary way hear the allegations and proof of the parties and, after considering the financial resources and the future ability of the dependent person to pay, may by order specify a sum in payment of the restitution, to be paid weekly or monthly, during a period fixed by the order or until further order of the court. Upon application of any party affected by the order and following notice and an opportunity for presentation of allegations and proof by the parties, the court may modify the order. The parent of the dependent person may file a restitution order with the clerk of circuit court. Upon payment of the fee under s. 814.61 (5) (am) 1., the clerk of circuit court shall enter the order on the judgment and lien docket under s. 806.10 in the same manner as for a judgment in a civil action. Thereafter, the parent of the dependent person may enforce the order against the dependent person in the same manner as for a judgment in a civil action.

49.90(13) (13) 

49.90(13)(a) (a) The parent of a dependent person who is the victim of a sexual assault under s. 940.225 (1) (a) for which a conviction is obtained and which results in the birth of a child before the dependent person attains the age of 18 is not responsible under sub. (1) (a) 2. for the maintenance of that child of the dependent person.

49.90(13)(b) (b) If a dependent person is convicted at any time of causing a pregnancy under s. 940.225 (1) (a) which results in the birth of a child before the dependent person attains the age of 18, the parent of that dependent person is solely liable under the requirements of sub. (1) (a) 2. for the maintenance of the dependent person’s child.

49.90(13)(c) (c) If the parent of the dependent person specified in par. (a) provides maintenance to the dependent person’s child and if par. (b) applies, the parent may apply to the circuit court for the county in which the child resides for an order to compel restitution by the parent specified in par. (b) of the amount of maintenance provided. The circuit court shall in a summary way hear the allegations and proof of the parties and, after considering the financial resources and future ability of the parent of the dependent person specified in par. (b) to pay, may by order specify a sum in payment of the restitution, to be paid weekly or monthly, during a period fixed by the order or until further order of the court. Upon application of any party affected by the order and following notice and an opportunity for presentation of allegations and proof by the parties, the court may modify the order. The parent specified in par. (a) may file a restitution order with the clerk of circuit court. Upon payment of a fee under s. 814.61 (5) (am) 1., the clerk of circuit court shall enter the order on the judgment and lien docket under s. 806.10 in the same manner as for a judgment in a civil action. Thereafter, the parent specified in par. (a) may enforce the order against the parent specified in par. (b) in the same manner as for a judgment in a civil action.

49.90 History History: 1973 c. 90 ss. 296e, 560 (2); 1973 c. 147, 336; Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1975 c. 82, 199; 1977 c. 271, 449; 1979 c. 221, 352; 1981 c. 317; 1983 a. 186; 1985 a. 29 ss. 1055m, 1108 to 1114, 3200 (23); 1985 a. 56, 176, 311, 332; Stats. 1985 s. 49.90; 1987 a. 312 s. 17; 1987 a. 399; 1989 a. 31; 1991 a. 316; 1995 a. 27 ss. 3216 to 3219b, 9126 (19); 1995 a. 77, 224, 404; 1997 a. 3, 27; 2005 a. 443 s. 265; 2007 a. 20 ss. 1756 to 1758, 9121 (6) (a); 2019 a. 70.

49.90 Annotation Sub. (1) (a) 2. is a substantive provision, and legislative intent indicates it is to have prospective effect only. J.G. v. State, 149 Wis. 2d 624, 439 N.W.2d 615 (Ct. App. 1989).

49.90 Annotation Sub. (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 s. 49.455 (2) and (3) (a), which are specifically concerned with the allocation of income from a community spouse to an institutionalized spouse receiving medical assistance benefits. Section 49.455 (2) applies in determining eligibility for medical assistance and the required contribution to an institutionalized person’s care, and s. 49.455 (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. Chippewa County Department of Human Services v. Bush, 2007 WI App 184, 305 Wis. 2d 181, 738 N.W.2d 562, 05-1113.

49.96 49.96 Assistance grants exempt from levy. All grants of aid to families with dependent children, payments made under ss. 48.57 (3m) or (3n), 49.148 (1) (b) 1. or (c) or (1m) or 49.149 to 49.159, payments made for social services, cash benefits paid by counties under s. 59.53 (21), and benefits under s. 49.77 or federal Title XVI, are exempt from every tax, and from execution, garnishment, attachment and every other process and shall be inalienable.

49.96 History History: 1973 c. 147; 1987 a. 27, 399; 1989 a. 278; 1995 a. 27 s. 2940; Stats. 1995 s. 49.96; 1995 a. 201, 289; 1997 a. 27, 35, 105.

49.96 Annotation Aid to Families with Dependent Children money did not lose its exemption from garnishment when it was deposited in a checking account. Northwest Engineering Credit Union v. Jahn, 120 Wis. 2d 185, 353 N.W.2d 67 (Ct. App. 1984).

49.96 Annotation A support order against actual Aid to Families with Dependent Children (AFDC) grants is prohibited, but an order against earned income of one who also receives AFDC is not. State v. Rose, 171 Wis. 2d 617, 492 N.W.2d 350 (Ct. App. 1992).