49.455(6)(b)2.b.b. In any year, $60,000 increased by the same percentage as the percentage increase in the consumer price index between September 1988 and September of the year before the year involved.

49.455(6)(b)3.3. The amount established in a fair hearing under sub. (8) (d).

49.455(6)(b)4.4. The amount transferred under a court order under par. (c).

49.455(6)(c)(c) If a court has entered a support order against a community spouse, s. 49.453 does not apply to resources transferred under the order for the support of the community spouse or a family member.

49.455(7)(7) Notice. The department shall notify both spouses upon a determination of medical assistance eligibility of an institutionalized spouse, or shall notify the spouse making the request upon a request by either an institutionalized spouse or a community spouse, of all of the following:

49.455(7)(d)(d) The spouse’s right to a fair hearing under sub. (8) concerning ownership or availability of income or resources and the determination of the community spouse monthly income or resource allowance.

49.455(8)(a)1.1. The determination of the community spouse monthly income allowance under sub. (4) (b).

49.455(8)(a)2.2. The determination of the amount of monthly income otherwise available to the community spouse used in the calculation under sub. (4) (b).

49.455(8)(a)3.3. After an application for medical assistance benefits is filed, the computation of the spousal share of resources under sub. (5) (a) 1.

49.455(8)(a)4.4. The attribution of resources under sub. (5) (b).

49.455(8)(a)5.5. The determination of the community spouse resource allowance under sub. (6) (b).

49.455(8)(b)(b) If the institutionalized spouse has made an application for medical assistance, and a fair hearing is requested under par. (a) concerning the determination of community spouse resource allowance, the department shall hold the hearing within 30 days after the request.

49.455(8)(c)(c) If either spouse establishes at a fair hearing that, due to exceptional circumstances resulting in financial duress, the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance determined under sub. (4) (c), the department shall determine an amount adequate to provide for the community spouse’s needs and use that amount in place of the minimum monthly maintenance needs allowance in determining the community spouse monthly income allowance under sub. (4) (b).

49.455(8)(d)1.1. If either spouse establishes at a fair hearing that the community spouse resource allowance determined under sub. (6) (b) 1. to 2. or 4. without a fair hearing does not generate enough income to raise the community spouse’s income to the minimum monthly maintenance needs allowance under sub. (4) (c), the department shall establish, under subd. 2., an amount to be used under sub. (6) (b) 3. that results in a community spouse resource allowance that generates enough income to raise the community spouse’s income to the minimum monthly maintenance needs allowance under sub. (4) (c).

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.