49.455(8)(d)2.2. The department shall base the amount to be used under sub. (6) (b) 3. on the cost of a single premium lifetime annuity that pays monthly amounts that, combined with other available income, raises the community spouse’s income to the minimum monthly maintenance needs allowance. Any resource, regardless of whether the resource generates income, may be transferred in an amount that, combined with the community spouse resource allowance calculated before the fair hearing, provides the community spouse with sufficient funds to purchase the annuity. The community spouse is not required to purchase an annuity to obtain this amount.

49.455(8)(d)3.3. Except in exceptional cases which would result in financial duress for the community spouse, the department may not establish an amount to be used under sub. (6) (b) 3. unless the institutionalized spouse makes available to the community spouse the maximum monthly income allowance permitted under sub. (4) (b) or, if the institutionalized spouse does not have sufficient income to make available to the community spouse the maximum monthly income allowance permitted under sub. (4) (b), unless the institutionalized spouse makes all of his or her income, except for an amount equal to the sum of the personal needs allowance under sub. (4) (a) 1. and any family allowances under sub. (4) (a) 3. paid by the institutionalized spouse and the amount incurred as expenses for medical or remedial care for the institutionalized spouse under sub. (4) (a) 4., available to the community spouse as a community spouse monthly income allowance under sub. (4) (b).

49.455 AnnotationAn ineligible spouse’s individual retirement account is excluded in determining whether the applying spouse is eligible for medical assistance. Keip v. DHFS, 2000 WI App 13, 232 Wis. 2d 380, 606 N.W.2d 543, 99-0193.

49.455 AnnotationSub. (2) applies in determining eligibility for medical assistance and the required contribution to an institutionalized person’s care. Sub. (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. In general, s. 49.90 (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 this section. Chippewa County Department of Human Services v. Bush, 2007 WI App 184, 305 Wis. 2d 181, 738 N.W.2d 562, 05-1113.

49.455 AnnotationSub. (8) (d) does not conflict with federal law. Federal law does not require an institutionalized spouse’s income-producing assets to be shifted to the community spouse’s minimum monthly maintenance needs allowance before his or her income is shifted to the community spouse. DHFS v. Blumer, 534 U.S. 473, 122 S. Ct. 962, 151 L. Ed. 2d 935 (2002).

49.455 AnnotationWisconsin Department of Health and Family Services v. Blumer: A “Case” Study in Pragmatism and the Expansion of Judicial Deference to Agency Interpretations. Kindstrand. 2002 WLR 1467.

49.46(1)(a)1.1. Notwithstanding s. 49.19 (20), any individual who, without regard to the individual’s resources, would qualify for a grant of aid to families with dependent children under s. 49.19.

49.46(1)(a)1g.1g. Notwithstanding s. 49.19 (20), any individual who, without regard to the individual’s resources, would qualify for a grant of aid to families with dependent children but who would not receive the aid solely because of the application of s. 49.19 (11) (f).

49.46(1)(a)1m.1m. Any pregnant woman whose income does not exceed the standard of need under s. 49.19 (11) and whose pregnancy is medically verified. Eligibility continues to the last day of the month in which the 60th day or, if approved by the federal government, the 90th day after the last day of the pregnancy falls.

49.46(1)(a)3.3. Any essential person.

49.46(1)(a)4.4. Any person receiving benefits under s. 49.77 or federal Title XVI.

49.46(1)(a)4m.4m. Any child for whom a payment is made under s. 49.775.

49.46(1)(a)5.5. Any child in an adoption assistance, foster care, or subsidized guardianship placement under ch. 48 or 938, as determined by the department.

49.46(1)(a)6.6. Any person not described in pars. (c) to (e) who, without regard to the individual’s resources, would be considered, under federal law, to be receiving aid to families with dependent children for the purpose of determining eligibility for medical assistance.

49.46(1)(a)6m.6m. Any person not described in pars. (c) to (e) who is considered, under federal law, to be receiving supplemental security income for the purpose of determining eligibility for medical assistance.

49.46(1)(a)9.9. Any pregnant woman not described under subd. 1., 1g., or 1m. whose family income does not exceed 133 percent of the poverty line for a family the size of the woman’s family.

49.46(1)(a)10.10. Any child not described under subd. 1. or 1g. who is under 6 years of age and whose family income does not exceed 133 percent of the poverty line for a family the size of the child’s family.

49.46(1)(a)11.11. If a waiver under s. 49.665 is granted and in effect, any child not described under subd. 1. or 1g. who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100 percent of the poverty line for a family the size of the child’s family. If a waiver under s. 49.665 is not granted or in effect, any child not described in subd. 1. or 1g. who was born after September 30,1983, who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100 percent of the poverty line for a family the size of the child’s family.

49.46(1)(a)12.12. Any child not described under subd. 1. or 1g. who is under 19 years of age and whose income does not exceed the standard of need under s. 49.19 (11).

49.46(1)(a)13.13. Any child who is under one year of age, whose mother was determined to be eligible under subd. 9. and who lives with his or her mother.

49.46(1)(a)14.14. Any person who would meet the financial and other eligibility requirements for home or community-based services under s. 46.277 or 46.2785 but for the fact that the person engages in substantial gainful activity under 42 USC 1382c (a) (3), if a waiver under s. 49.45 (38) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under s. 46.277 or 46.2785.

49.46(1)(a)14m.14m. Any person who would meet the financial and other eligibility requirements for home or community-based services under the family care benefit but for the fact that the person engages in substantial gainful activity under 42 USC 1382c (a) (3), if a waiver under s. 46.281 (1d) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under the family care benefit.

49.46(1)(a)15.15. Any individual who is infected with tuberculosis and meets the income and resource eligibility requirements for the federal Supplemental Security Income program under 42 USC 1381 to 1383d. For purposes of this subdivision, “income” has the meaning given for “family income” in s. 49.471 (1) (f).