DHS 103.065(4)(c)(c) Permitted divestment on or after August 9, 1989, but before July 1, 1990, to an exempt party — non-homestead property. For transfers that occurred on or after August 9, 1989, but before July 1, 1990, transfer of a non-homestead resource at less than fair market value is not divestment resulting in ineligibility under this section if the individual transferred the resource to one of the following individuals:

DHS 103.065(4)(c)1.1. Beginning October 1, 1989, to the community spouse or to another individual for the sole benefit of the community spouse after the individual became an institutionalized individual;

DHS 103.065(4)(c)2.2. To a minor or adult child of the institutionalized individual who meets the SSI definition of total and permanent disability or blindness under 42 USC 1382c; or

DHS 103.065(4)(c)3.3. Beginning October 1, 1989, to the individual’s spouse or to another person for the sole benefit of the individual’s spouse before the individual became an institutionalized individual. Such a transfer is not considered divestment resulting in ineligibility for as long as the individual’s spouse does not transfer the resource to another person other than his or her spouse at less than fair market value. The individual’s spouse shall report any transfer of the resource to the agency within 10 days after the transfer is made as required under s. 49.455, Stats. Failure of the institutionalized individual’s spouse to report the transfer may be fraud under s. 946.91 (2) (c), Stats.

DHS 103.065(4)(cm)(cm) Permitted divestment on or after July 1, 1990, to an exempt party — non-homestead property. Transfer of a non-homestead resource at less than fair market value on or after July 1, 1990, is not divestment resulting in ineligibility under this section to the extent that the resource was transferred:

DHS 103.065(4)(cm)2.2. To a minor or adult child of the institutionalized individual who meets the SSI definition of total and permanent disability or blindness under 42 USC 1382c.

DHS 103.065(4)(d)(d) Circumstances under which divestment is not a barrier to eligibility. An institutionalized individual who has been determined to have made a prohibited divestment under this section shall be found ineligible for MA as defined under s. DHS 101.03 (95) unless:

DHS 103.065(4)(d)1.1. The transfer of property occurred as the result of a division of resources as part of a divorce or separation action, the loss of a resource due to foreclosure or the repossession of a resource due to failure to meet payments; or

DHS 103.065(4)(d)2.d.d. The denial or termination of eligibility would work an undue hardship. In this subparagraph, “undue hardship” means that a serious impairment to the institutionalized individual’s immediate health status exists.

DHS 103.065(5)(5) Determining the period of ineligibility. An institutionalized individual who has made a prohibited divestment under this section resulting in ineligibility or whose spouse has made a divestment under this section resulting in ineligibility on or after July 1, 1990, as determined by the agency, without a condition under sub. (4) (d) existing, shall be ineligible for MA as defined in this section for, beginning with the month of divestment, the lesser of:

DHS 103.065(5)(b)(b) The number of months obtained by dividing the total uncompensated value of the transferred resources by the statewide average monthly cost to a private pay patient in an SNF at the time of application. In this paragraph, “total uncompensated value of the transferred resource” means the difference between the compensation received for the resource and the fair market value of the resource less any outstanding loans, mortgages or other encumbrances on the resource.

DHS 103.065(6)(a)(a) The agency shall determine if an applicant or recipient who is ineligible for MA under this section is eligible for MA card services. The applicant or recipient’s income eligibility shall be determined using the standards under s. DHS 103.04 (4).

DHS 103.065(6)(b)(b) The agency shall monitor retention of assets by the non-institutionalized spouse for those transfers that occur on or after October 1, 1989, but before July 1, 1990, under sub. (4) (c) 3. at each application or review of eligibility for the institutionalized spouse.

DHS 103.065 HistoryHistory: Cr. Register, March, 1990, No. 412, eff. 5-1-90; am. (1), (2), (4) (a) and (c) (intro.), (5) (intro.) and (6) (b), cr. (4) (cm), Register, May, 1991, No. 425, eff. 6-1-91; am. (2), (3) (a) and (4) (a), cr. (4) (am), Register, March, 1993, No. 447, eff. 4-1-93; emerg. renum. (3) (a) to (e) to be (3) (b), (d), (f), (g) and (j), cr. (4) (at), eff. 1-1-94; renum. (3) (a) to (e) to be (3) (b), (d), (f), (g) and (j), cr. (4) (at), Register, August, 1994, No. 464, eff. 9-1-94; corrections in (2) and (4) (c) 3. made under s. 13.93 (2m) (b) 7., Stats., Register February 2002 No. 554; corrections in (3) (f), (g), (j), (4) (a) and (d) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; correction in (4) (c) 3. made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715.

DHS 103.07(1)(a)1.1. Any financial support or contribution received by an institutionalized person shall be considered available when determining the eligibility of that person for MA.

DHS 103.07(1)(a)2.2. The income and assets of the parents of children under age 18 who reside in institutions shall be evaluated by the department to determine whether, pursuant to s. 46.10 (14), Stats., collections may be made from one or both parents. If the child is residing in an institution not specified in s. 46.10 (14), Stats., but the institution is approved to receive MA payments, the parental liability shall be the same as that provided in s. 46.10 (14), Stats., and collected in the same manner.

DHS 103.07(1)(a)3.3. The agency shall decide if the spouse of an institutionalized applicant or recipient should be referred for support action under s. 49.90, Stats. When deciding whether to refer for support action, the agency shall consider the spouse’s basic essential needs and present and future expenses. In no case may support from the spouse of an institutionalized applicant or recipient be pursued when the spouse’s assets, not counting homestead property and a motor vehicle, or, if applicable, not counting assets excluded under s. DHS 103.075 (5) (b) 2., are less than the amount provided under s. 49.47 (4) (b) 3g., Stats., or, if applicable, the spousal asset share under s. 49.455 (6) (b), Stats., and when the spouse’s income is less than the spousal monthly income allowance under s. 49.455 (4) (b), Stats.

DHS 103.07(1)(b)(b) Allocation of institutionalized person’s income to dependents outside the institution. Except as provided under s. DHS 103.075 (6), no allocation may be made from an institutionalized applicant’s or recipient’s income to a spouse who is eligible for SSI but who refuses to obtain SSI. Except as provided under s. DHS 103.075 (6), no allocation may be made to a spouse or to minor children under the spouse’s care if the spouse or any of the children are receiving SSI. Otherwise, allocations shall be made as follows:

DHS 103.07(1)(b)1.1. If the spouse is caring for a minor child for whom either the institutionalized person or the spouse is legally responsible, the AFDC assistance standard as specified in s. 49.19 (11) (am) 1m., Stats., plus expenses that would be allowed under s. DHS 103.04 (3) shall be used to determine the need of the spouse and children. If their total net income is less than their need, income of the institutionalized person shall be allocated in an amount sufficient to bring the spouse’s and children’s income up to their monthly need. In this subdivision, “total net income” means income equal to unearned income plus earned income.