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.
(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:
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.
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)
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 History
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
Special situations of institutionalized persons. 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.
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.
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)
(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 AFDC or SSI. Otherwise, allocations shall be made as follows:
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 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 net earned income, and "net earned income" means income equal to gross earned income minus work-related expenses according to requirements of AFDC. Income disregards of the AFDC program under 45 CFR 233.20
(a) shall be used as appropriate in computing income.
If the spouse is not caring for a minor child, the SSI payment level for one person living in that person's own household shall be used to determine the spouse's monthly need. The spouse's earned income shall be netted by subtracting the work-related expenses according to sub. (3)
and $20. from earned or unearned income or both. If the spouse's net income is less than the spouse's monthly need, income of the institutionalized person may be allocated in an amount sufficient to bring the spouse's income up to monthly need. Income disregards of the SSI program under 20 CFR 416.1112
shall be used as appropriate in computing income.
The following amounts shall be excluded when computing the income of the spouse and children under subd. 1.
or the spouse alone under subd. 2.
All earnings of a child less than 14 years old, or less than 18 years old when the child is a full-time student;
All earnings of a child less than 18 years old who attends school part-time and is employed fewer than 30 hours a week;
Any portion of any grant, scholarship or fellowship used to pay the costs of tuition, fees, books and transportation to and from classes;
The bonus value of food stamps and the value of foods donated by the federal department of agriculture;
Income actually set aside for the post-high school education of a child who is a junior or senior in high school.
(c) When both spouses are institutionalized and there is an application for MA.
When both spouses are institutionalized, the following shall apply:
If one spouse applies for MA, the total income of both spouses may be combined to ascertain if their combined income is less than total need, provided that the spouse not applying has income exceeding that spouse's needs and is willing to make that income available;
If the combined income of both spouses is less than total need, separate determinations shall be made to see if either spouse has excess income. Any excess may be allocated to the other spouse. Either one or both of the spouses may be eligible depending on income allocation; and
If the combined income of both spouses exceeds total need, separate determinations shall be made. Only the actual amount of income made available from one spouse to the other may be used in determining the eligibility of the other spouse. If the spouse refuses to make a reasonable amount available, the agency shall review the case under par. (a) 3.
to determine if legal action for support should be taken pursuant to s. 49.90
(d) Computing income available towards cost of care.
Institutionalized recipients of MA who are determined eligible under s. DHS 103.06
and this section shall apply their available income toward the cost of their care after deducting the income disregards in this paragraph. In this paragraph, "available income" means any remaining income after the following reductions are made:
If employed, the first $65 and one-half of the remainder of gross earnings;
Necessary medical or remedial care recognized under state law but not covered by MA;
The actual amount paid by the institutionalized person for support of a person for whom the institutionalized person is legally responsible but not to exceed the appropriate AFDC assistance standard unless the institutionalized person is paying court-ordered support in an amount greater than the AFDC assistance standard in s. 49.19 (11) (a) 1.
, Stats.; and
The monthly cost of maintaining a home when the conditions of s. DHS 103.06 (1) (b) 3.
are met, but not to exceed the SSI payment level for one person living in that person's own household.
DHS 103.07(2)(a)(a) Farm and self-employment income.
Farm and self-employment income used in MA calculations shall be determined by adding back into the net earnings the following: depreciation, personal business and entertainment expenses, personal transportation, purchases of capital equipment, and payments on the principal of loans. The total shall be divided by 12 to get monthly earnings. If no tax return has been filed, the individual shall complete a 1040 form of the internal revenue service (IRS) to determine net earnings or loss, or to anticipate, in case of relatively new businesses, net earnings as required by the IRS. If the latest income tax return does not accurately reflect the household's actual circumstances because the household has experienced a substantial increase or decrease in business, the agency shall calculate the self-employment income based on anticipated earnings. Agencies shall determine whether it is necessary to use anticipated earnings on a case-by-case basis and shall document the reasons for the determination in the case record.
(b) Contractual employment income.
Income received on other than an hourly or piecework basis from employment performed under a contract which is renewable on an annual basis shall be averaged over a 12-month period. Persons receiving this income shall be considered to receive compensation for the entire 12-month period even though actual compensation may only be received for part of the year.
DHS 103.07 Note
Note: For example, if school teachers are paid 9 months a year, the wages they receive are to be averaged over a 12-month period.
(c) In-kind benefits.
Predictable in-kind benefits received regularly and in return for a service or product delivered shall be treated as earned income in MA calculations. The value of the in-kind income is determined by using the prevailing wage rate in the local community for the type of work performed, but not less than the minimum wage for that type of work.
(d) Income from providing room and board.
Net profit from room and board shall be treated as earned income in MA calculations. Net profit is determined by deducting the following expenses of providing room and board from the gross room and board income received:
Roomer and boarder - current food stamp allotment for one plus $15.00.
(e) Income from rentals.
When the owner reports rental income to the IRS as self-employment income, the procedures set forth in par. (a)
shall be followed in MA calculations. If the owner does not report rental income to the IRS as self-employment income, net rental income shall be determined as follows:
When the owner is not an occupant, net rental income is the rental income minus the mortgage payment and verifiable operational costs;
When the owner receives rental income from a duplex or multiple rental unit building and the owner resides in one of the units, net rental income shall be computed according to the following method:
Add the interest portion of the mortgage and other verifiable operational costs common to the entire operation;
Add the result in subd. 2. c.
to any operational costs paid by the owner that are unique to any rental unit; and
(f) Income of SSI child's parents.
Income of a disabled child's parents shall not be considered when determining the child's eligibility for MA if the child meets the conditions stated in 42 USC 1396a
(h) Income from land contracts.
Income received from a land contract shall be counted as unearned income. If the income is received on a monthly basis, it shall be included as monthly income. Payments received on less than a monthly basis shall be prorated to a monthly amount over the period between payments. Any expenses that the applicant or recipient is required to pay under the terms of the land contract shall be deducted from the gross income received from the land contract.
It exceeds $20.00 per month. Amounts of $20.00 or less are considered inconsequential income and are disregarded.
The interest shall be counted as income in the month in which it is received. Interest income that is received less often than monthly shall be prorated over the period the payment covers.
DHS 103.07(3)(a)(a) Work-related deduction.
If an individual is employed, $90 shall be deducted from the individual's earned income when determining MA eligibility.
(b) Dependent care deductions.
When employment cannot be maintained without dependent care for a child or incapacitated adult in the MA or fiscal test group, the following deductions shall be applied:
The actual cost of care but not more than $175 each month for each dependent child age 2 or over or incapacitated adult; and
The actual cost of care but not more than $200 each month for each dependent child under age 2.
(c) Special deductions for employed blind persons.
Transportation expenses incurred in getting to and from work, expenses related to job performance and expenses related to improving job ability such as training meant to improve employability and increase earning power shall be deducted from the earned income of blind persons.
DHS 103.07 Note
Note: Examples of expenses related to job performance are a reader, translation of material into braille, the cost and upkeep of a seeing eye dog for a blind person, and the cost of a prosthesis.
(4) Deduction from any income for support to an institutionalized person.
If a person in the MA group has legal responsibility for a person residing in an institution where the cost of care cannot be covered by MA, any income actually made available by the MA group toward the institutional cost of care shall be deducted from the MA group's income.
DHS 103.07 History
Cr. Register, February, 1986, No. 362
, eff. 3-1-86; cr. (2) (h), Register, July, 1989
. No. 403, eff. 8-1-89; emerg. r. and recr. (3) (a) and (b), eff. 10-2-89; r. and recr. (3) (a) and (b), Register, March, 1990, No. 411
, eff. 4-1-90; am. (1) (a) 3., (b) (intro.), (c) 3. and (d) (intro.), r. and recr. (1) (d) 1., cr. (2) (i), Register, March, 1993, No. 447
, eff. 4-1-93; correction in (1) (a) 3. and (2) (e) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1999, No. 520
Prevention of spousal impoverishment. DHS 103.075(1)(1)
For resource eligibility, this section applies to all institutionalized applicants for and recipients of MA who began a continuous period of institutionalization on or after September 30, 1989, and to their spouses. For purposes of computing income available towards the cost of an institutionalized individual's care, this section applies to all institutionalized applicants for and recipients of MA who were residing in an institution on October 1, 1989, or who entered an institution subsequent to that date, and to their spouses.
This section implements s. 49.455
, Stats., which provides for protection of a couple's income and resources when one spouse is institutionalized and the other spouse lives in the community.
"Community spouse" means an individual who is legally married as recognized under state law to an institutionalized spouse but is not himself or herself an institutionalized individual.
"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.
"Continuous period of institutionalization" means an individual has resided in or is likely to remain in an institution for at least 30 consecutive days.
"Family member" means a minor or dependent child, dependent parent or dependent sibling of an institutionalized or community spouse who resides with the community spouse.
"Institutionalized spouse" means either an individual who is in a medical institution or nursing facility and is legally married to an individual who is not in a medical institution or nursing facility or an individual who receives services under a waiver under 42 USC 1396n
(c) or (d) and is legally married to an individual who is not in a medical institution or nursing facility and does not receive services under a waiver under 42 USC 1396n
(c) or (d).
Is organized to provide medical care, including nursing and convalescent care;
Has the necessary professional personnel, equipment and facilities to manage the medical, nursing and other health care needs of patients on a continuing basis in accordance with accepted professional standards;
Is staffed by professional personnel who are responsible for professional medical and nursing services. The professional medical and nursing services shall include adequate and continual medical care and supervision by a physician, registered nurse or licensed practical nurse supervision and services and nurses' aide services sufficient to meet nursing care needs and a physician's guidance on the professional aspects of operating the institution.
"Resources" does not include items excluded under 42 USC 1382b
(a) or (d) or items that would be excluded under 42 USC 1382b
(a) (2) (A) but for the limitation on total value established under that provision.
An institutionalized spouse or the community spouse, or a representative acting on the behalf of either spouse, may request that an agency complete an assessment of the couple's assets for purposes of determining total countable assets of the couple and the community spouse resource allowance. If the request is not part of an application for medical assistance, the agency may charge a fee not exceeding the reasonable expenses of providing and documenting the assessment.
Both the institutionalized spouse and the community spouse shall verify the assets that they own, jointly or individually, and the value of those assets at the beginning of the most recent continuous period of institutionalization.