Chapter DHS 10

DHS 10.32(1)(i) (i) Divestment. The person is not currently ineligible for the family care benefit, under the provisions of ss. 49.453 and 49.454 (2) (c) and (3) (b), Stats., and s. DHS 103.065 because he or she divested assets. The divestment provisions of ss. 49.453, 49.454 (2) (c) and (3) (b), Stats., and s. DHS 103.065 apply to all family care applicants and enrollees, regardless of whether they are eligible for medical assistance.

DHS 10.32(2) (2) Provision of necessary information. A client or person acting on behalf of a client shall provide full, correct and truthful information necessary to determine family care eligibility, entitlement status and cost sharing requirements, including the following:

DHS 10.32(2)(a) (a) A declaration of assets on a form prescribed by the department.

DHS 10.32(2)(b) (b) A declaration of income on a form prescribed by the department.

DHS 10.32(2)(c) (c) Information related to the person’s health and functional status, as required by the department.

DHS 10.32(3) (3) Reporting of changes required. An enrollee shall report to the county agency any change in circumstances that would affect his or her eligibility under this section, including income and asset changes that would affect cost sharing obligations, as specified under s. DHS 10.34 (3) (f).

DHS 10.32(4) (4) Review of eligibility. Enrollees’ eligibility for the family care benefit shall be re-determined annually or more often when a county agency has information indicating that a change has occurred in an enrollee’s circumstances that would affect his or her eligibility or cost sharing requirements.

DHS 10.32 History History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 04-040: am. (1) (b) 2. and (c) Register November 2004 No. 587, eff. 12-1-04; corrections in (1) (h) and (i) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; EmR2121: emerg. r. (4), eff. 8-5-21; CR 21-081: am. (4) Register May 2022 No. 797, eff. 6-1-22, am. (4) eff. the first day of the month after the emergency period, as defined in section 1135 (g) (1) (b) of the Social Security Act, 42 USC 1320b-5 (g) (1) (B) and declared in response to the COVID-19 pandemic, ends; correction in (4) made under s. 35.17, Stats., Register May 2022 No. 797; CR 23-046: am. (1) (a) Register April 2024 No. 820, eff. 5-1-24.

DHS 10.33 DHS 10.33 Conditions of functional eligibility.

DHS 10.33(1) (1) Definitions. In this section:

DHS 10.33(1)(a) (a) “ADL” means activities of daily living.

DHS 10.33(1)(b) (b) “IADL” means instrumental activities of daily living.

DHS 10.33(1)(c) (c) “Appropriately” means suitable in terms of time and place.

DHS 10.33(1)(d) (d) “Long-term or irreversible condition” means a physical or cognitive impairment that is expected to last for more than 90 days or result in death within one year.

DHS 10.33(1)(e) (e) “Requires ongoing care, assistance or supervision” means a person cannot safely or appropriately perform one or more ADLs or IADLs, as is evidenced by findings from functional screening.

DHS 10.33(1)(f) (f) “Safely” means without significant risk of harm to oneself or others.

DHS 10.33(2) (2) Determination of functional eligibility.

DHS 10.33(2)(a) (a) Determination. Functional eligibility for the family care benefit shall be determined pursuant to s. 46.286 (1), Stats., and this chapter, using a uniform functional screening prescribed by the department. To have functional eligibility for the family care benefit, the functional eligibility condition under par. (b) shall be met and, except as provided under sub. (3), the functional capacity level under par. (c) or (d) shall be met.

DHS 10.33(2)(b) (b) Long-term condition. The person shall have a long-term or irreversible condition.

DHS 10.33(2)(c) (c) Nursing home level. A person is functionally eligible at the nursing home level if the person requires ongoing care, assistance or supervision from another person, as is evidenced by any of the following findings from application of the functional screening:

DHS 10.33(2)(c)1. 1. The person cannot safely or appropriately perform 3 or more activities of daily living.

DHS 10.33(2)(c)2. 2. The person cannot safely or appropriately perform 2 or more ADLs and one or more instrumental activities of daily living.

DHS 10.33(2)(c)3. 3. The person cannot safely or appropriately perform 5 or more IADLs.

DHS 10.33(2)(c)4. 4. The person cannot safely or appropriately perform one or more ADL and 3 or more IADLs and has cognitive impairment.

DHS 10.33(2)(c)5. 5. The person cannot safely or appropriately perform 4 or more IADLs and has cognitive impairment.

DHS 10.33(2)(c)6. 6. The person has a complicating condition that limits the person’s ability to independently meet his or her needs as evidenced by meeting both of the following conditions:

DHS 10.33(2)(c)6.a. a. The person requires frequent medical or social intervention to safely maintain an acceptable health or developmental status; or requires frequent changes in service due to intermittent or unpredictable changes in his or her condition; or requires a range of medical or social interventions due to a multiplicity of conditions.

DHS 10.33(2)(c)6.b. b. The person has a developmental disability that requires specialized services; or has impaired cognition exhibited by memory deficits or disorientation to person, place or time; or has impaired decision making ability exhibited by wandering, physical abuse of self or others, self neglect or resistance to needed care.

DHS 10.33(2)(d) (d) Non-nursing home level. A person is functionally eligible at the non-nursing home level if the person is at risk of losing his or her independence or functional capacity unless he or she receives assistance from others, as is evidenced by a finding from application of the functional screening that the person needs assistance to safely or appropriately perform either of the following:

DHS 10.33(2)(d)1. 1. One or more ADL.

DHS 10.33(2)(d)2. 2. One or more of the following critical IADLs:

DHS 10.33(2)(d)2.a. a. Management of medications and treatments.

DHS 10.33(2)(d)2.b. b. Meal preparation and nutrition.

DHS 10.33(2)(d)2.c. c. Money management.

DHS 10.33 History History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 04-040: am. (1) (c) and (2) (a), (c) and (d) Register November 2004 No. 587, eff. 12-1-04; CR 22-026: r. (3) Register May 2023 No. 809, eff. 6-1-23; CR 23-046: renum. (1) (a) to (d) to be (1) (c) to (f), cr. (1) (a), (b), am. (2) (c) (intro.), (d) (intro.) Register April 2024 No. 820, eff. 5-1-24.

DHS 10.34 DHS 10.34 Financial eligibility and cost sharing.

DHS 10.34(1) (1) Definitions. In this section:

DHS 10.34(1)(a) (a) “Actual maintenance costs” means the sum of the following:

DHS 10.34(1)(a)1. 1. Shelter costs determined according to s. 49.455 (4) (d) 1. and 2., Stats.

DHS 10.34(1)(a)2. 2. An amount equal to the maximum food stamp allotment for a household of one under 7 USC 2017.

DHS 10.34(1)(a)3. 3. An allowance for clothing as determined by the department.

DHS 10.34(1)(b) (b) “Certification period” means a 12-month period for which financial eligibility and cost sharing requirements for the family care benefit are determined for a non-MA eligible person.

DHS 10.34(1)(c) (c) “Consumer price index” means the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor.

DHS 10.34(1)(d) (d) “Earned income” has the meaning given under s. DHS 101.03 (51).

DHS 10.34(1)(e) (e) “Unearned income” has the meaning given under s. DHS 101.03 (180).

DHS 10.34(2) (2) Individuals eligible for medical assistance. A person who is eligible for medical assistance under ch. 49, Stats., and chs. DHS 101 to 108 is financially eligible for the family care benefit. Cost sharing requirements for the family care benefit for a medical assistance-eligible person are those that apply under ch. 49, Stats., and chs. DHS 101 to 108.

DHS 10.34(3) (3) Individuals not eligible for medical assistance.

DHS 10.34(3)(a) (a) Conditions of financial eligibility. Eligibility under this subsection is effective beginning July 1, 2000. For persons who are not eligible for medical assistance, financial eligibility and cost sharing requirements for the family care benefit shall be determined pursuant to applicable provisions of s. 46.286 (1) (b) and (2), Stats., and this chapter. The maximum cost-sharing requirement for a non-MA-eligible person shall be determined by a county agency using a uniform financial eligibility and cost-sharing screening prescribed by the department. A non-MA-eligible person is financially eligible for the family care benefit if the projected cost of the person’s care plan exceeds the person’s maximum cost-sharing requirement.

DHS 10.34(3)(b) (b) Calculation of maximum cost share requirement at initial determination and annual re-determination of eligibility. A non-MA-eligible family care enrollee shall contribute to the cost of his or her care an amount that is calculated as provided under this section. Treatment of assets, including assets in trusts, and income shall be as provided under ss. 49.454 and 49.47, Stats., and ss. DHS 103.06 and 103.07 unless specified otherwise in this section. All dollar amounts specified in this section shall be updated annually based on changes in the consumer price index. The following calculation shall determine the applicant’s or enrollee’s maximum cost-sharing requirement:

DHS 10.34(3)(b)1. 1. Determine total countable assets according to ss. 49.454 and 49.47, Stats., and s. DHS 103.06. If the applicant or enrollee is legally married, include the countable assets of both members of the couple.

DHS 10.34(3)(b)2. 2. Determine monthly net countable assets by subtracting from total countable assets the following allowances, as applicable, and dividing the result by 12:

DHS 10.34(3)(b)2.a. a. Subject to subd. 6., if the applicant or enrollee is a family care spouse, the amount of the community spouse resource allowance under s. 49.455 (6) (b), Stats.

DHS 10.34(3)(b)2.b. b. If the person resides in a nursing home, community-based residential facility or adult family home, an allowance of $9,000.

DHS 10.34(3)(b)2.c. c. If the person resides in his or her own home, including a residential care apartment complex or in the private home of a relative or other person, an allowance of $12,000.

DHS 10.34(3)(b)3. 3. Determine countable monthly income by adding together all of the following:

DHS 10.34(3)(b)3.a. a. Monthly unearned income less a $20 disregard from unearned income, or if the person has less than $20 of unearned income, the remainder from earned income.

DHS 10.34(3)(b)3.b. b. Total monthly earned income, less the first $200, and then less two-thirds of any remaining earned income.

DHS 10.34(3)(b)4. 4. Add together the monthly net countable assets and the countable monthly income.

DHS 10.34(3)(b)5. 5. Deduct from the amount calculated under subd. 4. all of the following:

DHS 10.34(3)(b)5.a. a. Subject to subd. 6., if the person is a family care spouse, the community spouse monthly income allowance under s. 49.455 (4) (b), Stats.

DHS 10.34(3)(b)5.b. b. The amount of any payments the person is required to pay by court order.

DHS 10.34(3)(b)5.c. c. If the person resides in a nursing home, community-based residential facility or adult family home, a personal maintenance allowance of $65.

DHS 10.34(3)(b)5.d. d. If the person resides in his or her own home, including a residential care apartment complex or the home of another person, a personal maintenance allowance equal to the greater of the combined benefit amount available under 42 USC 1381 to 1383 and s. 49.77 (3s), Stats., or actual maintenance costs, as defined under sub. (1) (a), up to the maximum personal maintenance allowance for persons receiving home and community-based waiver services funded under 42 USC 1396 (b) or (c).

DHS 10.34(3)(b)5.e. e. If the person resides in a medical institution, the monthly cost of maintaining a homestead property when the applicant or enrollee can reasonably be expected to return within 6 months or the anticipated absence of the applicant or enrollee from the home is for more than 6 months but there is a realistic expectation, as verified by a physician, that the person will return to the home. The monthly cost shall not exceed the SSI payment level for one person living in that person’s own household.

DHS 10.34(3)(b)5.f. f. The average monthly out-of-pocket cost of necessary medical or remedial care, including health insurance premiums and cost-sharing requirements for other state or federal programs.

DHS 10.34(3)(b)5.g. g. An allowance for dependents who live in the home of the person or the person’s community spouse equal to the allowance payable under s. 49.455 (4) (a) 3., Stats.

DHS 10.34(3)(b)5.h. h. Any special allowances approved by the department.

DHS 10.34(3)(b)6. 6. If both members of a married couple are family care spouses, the community spouse resource allowance under subd. 2. a. and the community spouse monthly income allowance under subd. 5. a. may be included in the calculation of cost share for either spouse, but not for both.

DHS 10.34(3)(c) (c) Recalculation of maximum cost-sharing requirement during a certification period. When changes in income, assets or cost of care necessitate a re-determination of a person’s maximum cost-sharing requirement during a certification period as described in par. (f), the calculation for the remainder of the certification period shall be the same as under par. (b) except that the amount already incurred and paid by the person from countable assets during the certification period shall be added to the amount under par. (b) 4.

DHS 10.34(3)(d) (d) Treatment of assets. In determining financial eligibility and cost sharing requirements for the family care benefit, the department or the county agency shall treat assets, including assets in trusts, according to ss. 49.454 and 49.47 (4) (b), Stats., and s. DHS 103.06, except as follows:

DHS 10.34(3)(d)1. 1. All funds in an independence account shall be considered as an exempt asset. In this subdivision, “independence account” means one or more separate accounts at a financial institution, approved by the department, that are in the sole ownership of the client, and that consist solely of savings, and dividends or other gains derived from those savings, from earned income received after application for the family care benefit.

DHS 10.34(3)(d)2. 2. Spousal impoverishment provisions under s. DHS 10.35 apply.

DHS 10.34(3)(e) (e) Treatment of income. In determining financial eligibility and cost sharing requirements for the family care benefit, the department or the county agency shall treat income according to applicable provisions of s. 49.47 (4) (c), Stats., and s. DHS 103.07 except that worker’s compensation cash benefits under ch. 104, Stats., and unemployment insurance benefits received under ch. 108, Stats., shall be treated as earned income for purposes of par. (b) 3. b.

DHS 10.34(3)(f) (f) Certification period. Cost sharing requirements as determined under this section shall be in effect for a full 12-month certification period except as follows:

DHS 10.34(3)(f)1. 1. An enrollee shall report, within 10 days of the change, increases in assets that exceed a total of at least $1000 in a calendar month.

DHS 10.34(3)(f)2. 2. At any time, an enrollee may report decreases of any amount in assets other than decreases resulting from payment of required cost sharing under this section.

DHS 10.34(3)(f)3. 3. An enrollee shall report any change in income within 10 days of the change.

DHS 10.34(3)(f)4. 4. Cost-sharing requirements shall be re-determined whenever any of the following occurs:

DHS 10.34(3)(f)4.a. a. Reported changes in income, assets, or both, would result in a lower cost-sharing requirement.

DHS 10.34(3)(f)4.b. b. Countable assets increase more than $1000 in a calendar month.

DHS 10.34(3)(f)4.c. c. Monthly income increases by any amount.

DHS 10.34(4) (4) Payment of cost share required.

DHS 10.34(4)(a) (a) Except as provided in par. (b), a person who is required to contribute to the cost of his or her care but who fails to make the required contributions is ineligible for the family care benefit.

DHS 10.34(4)(b) (b) If the department or its designee determines that the person or his or her family would incur an undue financial hardship as a result of making the payment, the department may waive or reduce the requirement. Any reduction or waiver of cost share shall be subject to review at least every 12 months. A reduction or waiver under this paragraph shall meet all of the following conditions:

DHS 10.34(4)(b)1. 1. The hardship is documented by financial information beyond that normally collected for eligibility and cost-sharing determination purposes and is based on total financial resources and total obligations.

DHS 10.34(4)(b)2. 2. Sufficient relief cannot be provided through an extended or deferred payment plan.

DHS 10.34(4)(b)3. 3. The person is notified in writing of approval or denial within 30 days of providing necessary information to the department or its designee.

DHS 10.34 Note Note: The forced sale of a family residence or cessation of an education program for a person or his or her family member are examples of genuine hardships under this provision. Reductions or waivers of cost sharing requirements are generally restricted to situations where services are provided for a relatively long term, when deferred payments will not provide sufficient relief.

DHS 10.34(4)(c) (c) A CMO shall collect or monitor the collection of its enrollees’ cost sharing payments. If an enrollee does not meet his or her cost sharing obligations, the CMO shall notify the resource center in the county in which the enrollee resides. The resource center, directly or through arrangement with the county agency, shall notify the enrollee that he or she will be ineligible on a specified date unless cost sharing obligations are met. If the client has not paid the cost share amount due by the date specified, the county agency shall determine the person to be ineligible and disenroll the person from the CMO.