The department shall file a release of a lien imposed under this subsection if the recipient is discharged from the nursing home and returns to live in the home.
Except as provided in par. (b)
, the department shall file a claim against the estate of a recipient or against the estate of the surviving spouse of a recipient for all of the following unless already recovered by the department under this section:
The amount of medical assistance paid on behalf of the recipient while the recipient resided in a nursing home or while the recipient was an inpatient in a medical institution and was required to contribute to the cost of care.
The following medical assistance services paid on behalf of the recipient after the recipient attained 55 years of age:
Related hospital services, as specified by the department by rule.
Related prescription drug services, as specified by the department by rule.
The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.
The court shall reduce the amount of a claim under par. (a)
by up to $3,000 if necessary to allow the recipient's heirs or the beneficiaries of the recipient's will to retain the following personal property:
The decedent's wearing apparel and jewelry held for personal use.
Other tangible personal property not used in trade, agriculture or other business, not to exceed $1,000 in value.
A claim under par. (a)
is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
If the department's claim is not allowable because of par. (b)
and the estate includes an interest in a home, the court exercising probate jurisdiction shall, in the final judgment, assign the interest in the home subject to a lien in favor of the department for the amount described in par. (a)
. The personal representative shall record the final judgment as provided in s. 863.29
The department may not enforce the lien under par. (c)
as long as any of the following survive the decedent:
The department may enforce a lien under par. (c)
by foreclosure in the same manner as a mortgage on real property.
The department may require a county department under s. 46.215
or the governing body of a federally recognized American Indian tribe administering medical assistance to gather and provide the department with information needed to recover medical assistance under this section. The department shall pay to a county department or tribal governing body an amount equal to 5% of the recovery collected by the department relating to a beneficiary for whom the county department or tribal governing body made the last determination of medical assistance eligibility. A county department or tribal governing body may use funds received under this subsection only to pay costs incurred under this subsection and, if any amount remains, to pay for improvements to functions required under s. 49.33 (2)
. The department may withhold payments under this subsection for failure to comply with the department's requirements under this subsection. The department shall treat payments made under this subsection as costs of administration of the medical assistance program.
(5) Use of funds.
From the appropriation under s. 20.435 (5) (im)
, the department shall pay the amount of the payments under sub. (4)
that is not paid from federal funds, shall pay to the federal government the amount of the funds recovered under this section equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the funds recovered under this section for medical assistance benefits under this subchapter.
The department may recover amounts under this section for medical assistance benefits paid on and after August 15, 1991.
The department may file a claim under sub. (3)
only with respect to a recipient who dies after September 30, 1991.
(6m) Waiver due to hardship.
The department shall promulgate rules establishing standards for determining whether the application of this section would work an undue hardship in individual cases. If the department determines that the application of this section would work an undue hardship in a particular case, the department shall waive application of this section in that case.
(7) Instalment payments.
If a recovery under sub. (3)
does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.
Recovery of benefits from the estate of a recipient's surviving spouse under sub. (3) (a) exceeds the authority granted by federal law. DHSS v. Estate of Budney, 197 W (2d) 949, 541 NW (2d) 245 (Ct. App. 1995).
Preserving the Homestead of the Small Estate: Wisconsin's Medical Recovery Law. Gilbert. Wis. Law. July 1992.
Recovery of incorrect medical assistance payments. 49.497(1)(1)
The department may recover any payment made incorrectly for benefits specified under s. 49.46
if the incorrect payment results from any misstatement or omission of fact by a person supplying information in an application for benefits under s. 49.46
. The department may also recover if a medical assistance recipient or any other person responsible for giving information on the recipient's behalf fails to report the receipt of income or assets in an amount that would have affected the recipient's eligibility for benefits. The department's right of recovery is against any medical assistance recipient to whom or on whose behalf the incorrect payment was made. The extent of recovery is limited to the amount of the benefits incorrectly granted. The county department under s. 46.215
or the governing body of a federally recognized American Indian tribe administering medical assistance shall begin recovery actions on behalf of the department according to rules promulgated by the department.
A county or governing body of a federally recognized American Indian tribe may retain 15% of benefits distributed under s. 49.46
that are recovered under sub. (1)
due to the efforts of an employe or officer of the county or tribe.
Cash assets of medical assistance recipients that exceed asset limitations shall be applied against the cost of medical assistance benefits provided.
There is no statutory authority to order a mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M. 166 W (2d) 306, 479 NW (2d) 237 (Ct. App. 1991).
Requirements for skilled nursing facilities. 49.498(1)(a)
"Active treatment for developmental disability" means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual's acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual's current optimal functional status. "Active treatment for developmental disability" does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.
"Active treatment for mental illness" means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under ch. 448
and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.
"Developmental disability" means any of the following:
Significantly subaverage general intellectual functioning that is concurrent with an individual's deficits in adaptive behavior and that manifested during the individual's developmental period.
A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in 42 CFR 435.1009
"Managing employe" means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.
"Psychopharmacologic drugs" means drugs that modify psychological functions and mental states.
"Registered professional nurse" means a registered nurse who is licensed under ch. 441
"Resident" means an individual who resides in a nursing facility.
(2) Requirements relating to provision of services. 49.498(2)(a)1.1.
A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.
A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:
Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.
Develop and implement appropriate plans of action to correct identified quality deficiencies.
A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:
Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;
Is initially prepared, with participation to the extent practicable of the resident or the resident's family or legal counsel, by a team which includes the resident's attending physician and a registered professional nurse who has responsibility for the resident; and
Is periodically reviewed and revised by the team in subd. 2.
after the conduct of an assessment under par. (c)
A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident's functional capacity that:
Describes the resident's capability to perform daily life functions and significant impairments in the resident's functional capacity.
Is based on a uniform minimum data set of core elements and common definitions specified as required under 42 USC 1395i-3
(f) (6) (A).
Uses an instrument which shall be specified by the department by rule.
A registered professional nurse shall conduct or coordinate with the appropriate participation of health professionals, sign and certify the completion of an assessment under subd. 1.
Each individual who completes a portion of the assessment shall sign and certify as to the accuracy of that portion of the assessment.
No individual may wilfully and knowingly certify under subd. 2.
a material and false statement in an assessment.
No individual may wilfully and knowingly cause another individual to certify under subd. 2.
a material and false statement in an assessment.
If the department determines by survey of a nursing facility or otherwise that an individual has knowingly and wilfully certified a false assessment under subd. 2.
, the department may require that individuals who are independent of the nursing facility and are approved by the department conduct and certify assessments under this paragraph.
Conduct an assessment under subd. 1.
no later than 4 days after the admission of an individual admitted after September 30, 1990.
Conduct all of the assessments under subd. 1.
for a resident of the nursing facility by October 1, 1991, for a resident who resides in the facility on that date; promptly after a significant change in a resident's physical or mental condition; and, for every resident, no less often than once every 12 months.
Examine a resident no less frequently than once every 3 months and, as appropriate, revise the resident's assessment under subd. 1.
to assure the assessment's continuing accuracy.
The assessment conducted under subd. 1.
shall be used in developing, reviewing and revising a nursing facility resident's plan of care under par. (b)
A nursing facility shall coordinate an assessment conducted under this paragraph with the conduct of preadmission screening under s. 49.45 (6c) (b)
to the maximum extent practicable in order to avoid duplicative testing and effort.
To the extent needed to fulfill the plans of care required under par. (b)
, a nursing facility shall provide or arrange for the provision of all of the following, which shall meet professional standards of quality:
Nursing services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.
Medically related social services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.
Pharmaceutical services, including procedures that assure the accurate acquiring, receiving, dispensing and administering of all drugs and biologicals, to meet the needs of each resident.
Dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident.
An ongoing program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental and psychosocial well-being of each resident.
Routine dental services to the extent covered under the approved state medicaid plan and emergency dental services to meet the needs of each resident.
Services specified under subd. 1. a.
shall be provided to a resident by qualified persons in accordance with the resident's written plan of care under par. (b)
Provide 24-hour per day licensed nursing services which are sufficient to meet the nursing needs of its residents; and