46.27(7g)(c)5.a.a. If the department's claim is not allowable because of subd.
4. and the estate includes an interest in real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in subd.
1. The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s.
863.29,
867.01 (3) (h), or
867.02 (2) (h).
46.27(7g)(c)5.b.
b. If the department's claim is not allowable because of subd.
4., the estate includes an interest in real property, including a home, and the personal representative closes the estate by sworn statement under s.
865.16, the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in subd.
1. The personal representative shall record the statement in the same manner as described in s.
863.29, as if the statement were a final judgment.
46.27(7g)(c)6.
6. The department may not enforce a lien under subd.
5. as long as any of the following survive the decedent:
46.27(7g)(c)6m.
6m. All of the following apply to a lien under subd.
5. that the department may not enforce because of subd.
6.:
46.27(7g)(c)6m.a.
a. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.
46.27(7g)(c)7.
7. The department may enforce a lien under subd.
5. by foreclosure in the same manner as a mortgage on real property.
46.27(7g)(d)
(d) The department may require the county department or aging unit selected to administer the program in each county to gather and provide the department with information needed to recover payment of long-term community support services under this subsection. The department shall pay to the county department or aging unit an amount equal to 5 percent of the recovery collected by the department relating to a beneficiary for whom the county department or aging unit made the last determination of eligibility for funding under sub.
(7). A county department or aging unit may use funds received under this paragraph only to pay costs incurred under this paragraph and shall remit the remainder, if any, to the department for deposit in the appropriation account under s.
20.435 (4) (im). The department may withhold payments under this paragraph for failure to comply with the department's requirements under this paragraph. The department shall treat payments made under this paragraph as costs of administration of the program.
46.27(7g)(e)
(e) From the appropriation under s.
20.435 (4) (im), the department shall pay the amount of the payments under par.
(d) and shall spend the remainder of the funds recovered under this subsection for long-term community support services funded under sub.
(7) (b).
46.27(7g)(f)1.1. The department may recover amounts under this subsection for the provision of long-term community support services paid on and after January 1, 1996.
46.27(7g)(f)2.
2. The department may file a claim under par.
(c) only with respect to a client who dies after February 15, 1996.
46.27(7g)(g)
(g) The department shall promulgate rules establishing standards for determining whether the application of this subsection would work an undue hardship in individual cases. If the department determines that the application of this subsection would work an undue hardship in a particular case, the department shall waive application of this subsection in that case.
46.27(7g)(h)
(h) The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.
46.27(7m)
(7m) Right to hearing. A person who is denied eligibility for services or whose services are reduced or terminated under this section may request a hearing from the department under s.
227.44, except that lack of adequate funding or a denial under sub.
(6r) (a) may not serve as the basis for a request under this subsection.
46.27(8)
(8) County participation. Every county shall participate in and implement the program.
46.27(9)
(9) Pilot project allocating the cost of nursing home utilization increases to counties. 46.27(9)(a)
(a) The department may select up to 5 counties that volunteer to participate in a pilot project under which they will receive certain funds allocated for long-term care. The department shall allocate a level of funds to these counties equal to the amount that would otherwise be paid under s.
20.435 (4) (b),
(gm), or
(w) to nursing homes for providing care because of increased utilization of nursing home services, as estimated by the department. In estimating these levels, the department shall exclude any increased utilization of services provided by state centers for the developmentally disabled. The department shall calculate these amounts on a calendar year basis under sub.
(10).
46.27(9)(b)
(b) The department may only select counties to participate in this pilot project and receive these funds that have been part of the long-term support community options program since January 1, 1983. County participation in this pilot project shall be for periods beginning either January 1, 1984, or January 1, 1985.
46.27(9)(c)
(c) All long-term community support services provided under this pilot project in lieu of nursing home care shall be consistent with those services described in the participating county's community options plan under sub.
(4) (c) 1. and provided under sub.
(5) (b). Unless the department has contracted under s.
46.284 (2) with an entity other than the county department, each county participating in the pilot project shall assess persons under sub.
(6).
46.27(10)(a)1.1. The department shall determine for each county participating in the pilot project under sub.
(9) a funding level of state medical assistance expenditures to be received by the county. This level shall equal the amount that the department determines would otherwise be paid under s.
20.435 (4) (b),
(gm), or
(w) because of increased utilization of nursing home services, as estimated by the department.
46.27(10)(a)2.
2. The department shall transfer or credit to the participating county the amount calculated under subd.
1. for 1984 or for the first 6 months of 1985, depending on the date the county begins participating in the pilot project. The county shall use these funds to provide long-term care to medical assistance recipients covered by its community options plan, either in the form of nursing home care financed under par.
(b) or in the form of long-term community support services. The county may use extra funds available under this paragraph after it provides this long-term care for other long-term community support services under its community options plan.
46.27(10)(b)
(b) Each county participating in the pilot project is liable for the entire nonfederal share of medical assistance costs related to increased utilization of nursing homes that are located in the county.
46.27(10)(c)
(c) The department's method of determining each county's base level of funding, the transfer or credit of funds and the department's specification of county financial liability under the pilot project are subject to the approval of the joint committee on finance.
46.27(11)(am)
(am) The department shall request a waiver from the secretary of the federal department of health and human services, under
42 USC 1396n (c), authorizing the department to provide as part of the medical assistance program home and community-based services for persons who are eligible for long-term support community options program services under sub.
(5) (b).
46.27(11)(b)
(b) The department shall include all assurances required under
42 USC 1396n (c) in the implementation of the waiver.
46.27(11)(c)
(c) The following conditions apply under the waiver:
46.27(11)(c)1.
1. At the end of the 3-year period during which the waiver remains in effect the department may request a 3-year extension of the waiver.
46.27(11)(c)2.
2. The department shall annually submit to the secretary of the federal department of health and human services information showing the effect of the program on the type and amount of medical assistance provided and on the health and welfare of program participants.
46.27(11)(c)3.
3. Medical assistance reimbursement for services a county, a private nonprofit agency or an aging unit with which the department contracts provides under this subsection shall be made from the appropriations under s.
20.435 (4) (bd) and
(o) and
(7) (b).
46.27(11)(c)4.
4. The department may, from the appropriation under s.
20.435 (4) (o), provide reimbursement for services provided under this subsection by counties that are in excess of the current average annual per person rate, as established by the department, and are less than or equal to the average amount approved in the waiver received under par.
(am).
46.27(11)(c)5.
5. The department may contract for services under this subsection with a county, a private nonprofit agency or, if a county board of supervisors by resolution so requests the department, an aging unit.
46.27(11)(c)5m.
5m. No county may use funds received under this subsection to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under subds.
6.,
7. and
8., one of the following applies:
46.27(11)(c)5m.a.
a. The services are provided to the person in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable independent entrance and exit and individual separate kitchen, bathroom, sleeping and living areas.
46.27(11)(c)5m.b.
b. The person suffers from Alzheimer's disease or related dementia and the services are provided to the person in a community-based residential facility that has a dementia care program.
46.27(11)(c)5n.
5n. A county may also use funds received under this subsection, subject to the limitations under subds.
6.,
7. and
8., to provide services to a person who does not live in his or her own home or apartment if the services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:
46.27(11)(c)5n.b.
b. The county department or aging unit documents that the option of in-home services has been discussed with the person, thoroughly evaluated and found to be infeasible, as determined by the county department or aging unit in accordance with rules promulgated by the department of health services.
46.27(11)(c)5n.c.
c. The county department or aging unit determines that the community-based residential facility is the person's preferred place of residence or is the setting preferred by the person's guardian.
46.27(11)(c)5n.d.
d. The county department or aging unit determines that the community-based residential facility provides a quality environment and quality care services.
46.27(11)(c)5n.e.
e. The county department or aging unit determines that placement in the community-based residential facility is cost-effective compared to other options, including home care and nursing home care.
46.27(11)(c)5p.a.a. Subject to the approval of the department, a county may establish and implement more restrictive conditions than those imposed under subd.
5m. on the use of funds received under sub.
(7) (b) for the provision of services to a person in a community-based residential facility. A county that establishes more restrictive conditions under this subd.
5p. a. shall include the conditions in its community options plan under sub.
(3) (cm).
46.27(11)(c)5p.b.
b. If the department determines that a county has engaged in a pattern of inappropriate use of funds received under sub.
(7) (b), the department may revoke its approval of the county's conditions established under subd.
5p. a., if any, and may prohibit the county from using funds received under sub.
(7) (b) to provide services under subd.
5n. 46.27(11)(c)6.a.a. No county, private nonprofit agency or aging unit may use funds received under this subsection to provide residential services in a group home, as defined in s.
48.02 (7), that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.
46.27(11)(c)6.b.
b. No county, private nonprofit agency, or aging unit may use funds received under this subsection to provide residential services in a community-based residential facility, as defined in s.
50.01 (1g), that has more than 20 beds, unless the requirements of sub.
(7) (cm) 1. a.,
b., or
c. are met.
46.27(11)(c)7.
7. A county may use funds received under this subsection to provide supportive, personal or nursing services, as defined in rules promulgated under s.
49.45 (2) (a) 23., to a person who resides in a certified residential care apartment complex, as defined in s.
50.01 (6d). Funding of the services may not exceed 85 percent of the statewide medical assistance daily cost of nursing home care, as determined by the department.
46.27(11)(c)8.
8. No county, private nonprofit agency or aging unit may use funds received under this subsection to provide services in any community-based residential facility unless the county, agency or aging unit uses as a service contract the approved model contract developed under sub.
(2) (j) or a contract that includes all of the provisions of the approved model contract.
46.27(11g)
(11g) Report. Beginning January 1, 1997, and every January 1 thereafter, the department shall submit a report to the joint committee on finance and to the appropriate standing committees under s.
13.172 (3), summarizing the data collected for the state and for individual counties under the program in the calendar year ending immediately before the preceding calendar year.
46.27(12)
(12) Rules. The department shall promulgate rules establishing the following:
46.27(12)(a)
(a) Fiscal management procedures required to be implemented by counties in administering the program under this section, as follows:
46.27(12)(a)1.
1. A simple contract between the community options program client and the service provider for that client.
46.27(12)(a)2.
2. A method for documenting the amount of service provided to enable verification of the appropriateness of payment.
46.27(12)(a)3.
3. Guidelines for determining whether a potential community options program client is competent to receive community options program funds directly or if an action should be brought for a determination of competency and the appointment of a guardian.
46.27(12)(a)4.
4. Supervisory review of community options program client payment decisions.
46.27(12)(b)
(b) Standards to ensure that only a single payment is made by the department for an initial community options case plan conducted by a county.
46.27(12)(c)
(c) A sliding scale formula for a fee chargeable for conduct of an assessment under sub.
(6) (a) or for development of a case plan under sub.
(6) (b) that is based on the person's ability to pay, unless prohibited from payment under
42 USC 1396 to
1396v or under regulations under
42 USC 1396 to
1396v.
46.27(13)
(13) Program termination. Notwithstanding subs.
(5),
(6),
(6g),
(6u),
(7),
(7m),
(8), and
(11), after the date the family care benefit, as defined in s.
46.2805 (4), is available to eligible residents of a county, the department may discontinue the program under this section in that county.
46.27 History
History: 1981 c. 20;
1983 a. 27;
1983 a. 189 s.
329 (5);
1983 a. 192,
239;
1985 a. 29 ss.
876s to
896am,
3200 (56);
1985 a. 120,
176;
1987 a. 27,
399;
1989 a. 31,
77,
336,
359;
1991 a. 32,
39,
235,
274;
1993 a. 16,
27,
437;
1995 a. 27;
1997 a. 13,
27,
39,
79,
237;
1999 a. 9,
63;
2001 a. 16,
103;
2003 a. 33;
2005 a. 22,
25,
264,
386,
387;
2007 a. 20 ss.
904 to
921,
9121 (6) (a);
2007 a. 141;
2009 a. 2;
2011 a. 32;
2013 a. 20,
92;
2013 a. 165 s.
114;
2015 a. 55,
180;
2017 a. 366.
46.27 Cross-reference
Cross-reference: See also ch.
DHS 73, Wis. adm. code.
46.27 Annotation
The county was found to be the employer, for worker's compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under sub. (11). County of Barron v. Labor and Industry Review Commission,
2010 WI App 149,
330 Wis. 2d 203,
792 N.W.2d 584,
09-1845.
46.271
46.271
Long-term support pilot projects. 46.271(1)(a)
(a) From the appropriation under s.
20.435 (4) (bd), the department shall award $100,000 in each fiscal year to applying county departments under s.
46.215,
46.22,
46.23,
51.42 or
51.437 or to an aging unit under the conditions specified in par.
(c) to establish pilot projects for home and community-based long-term support services. Funds awarded to the pilot projects shall be used to do any of the following:
46.271(1)(a)1.
1. Provide administration for projects that serve individuals who are discharged from hospitals and meet one of the eligibility requirements under s.
46.27 (6r) (b) 1. to
4. 46.271(1)(a)2.
2. Promote the development of a system of home and community-based long-term support services that is easily accessible to individuals who are eligible for and potentially need these services.
46.271(1)(b)
(b) The department shall do all of the following:
46.271(1)(b)1.
1. Solicit applications from county departments or aging units for the pilot projects under par.
(a).
46.271(1)(b)2.
2. Require that an applying county department or aging unit under subd.
1. submit as part of the application specific plans for improving the coordination between hospitals and providers of home and community-based long-term support services.
46.271(1)(c)
(c) The department may contract with an aging unit, as defined in s.
46.27 (1) (a), for administration of services under par.
(a) if, by resolution, the county board of supervisors of that county so requests the department.
46.272
46.272
Children's community options program. 46.272(1)(a)
(a) “Child" means a person under 22 years of age who is not eligible to receive services in or on a waiting list for an adult long-term care program.
46.272(1)(b)
(b) “Disability" means a severe physical, developmental, or emotional impairment which is diagnosed medically, behaviorally, or psychologically, which is characterized by the need for individually planned and coordinated care, treatment, vocational rehabilitation, or other services and which has resulted or is likely to result in substantial limitation on the ability to function in at least 2 of the following areas, equivalent to nursing home, hospital, or institution for mental disease level of care:
