Chapter DHS 103

DHS 103.063(3)(d)1.b. b. If the amount of divestment to be expended for maintenance needs and medical care is greater than the average MA expenditure for 24 months of care in an SNF, when the entire amount of the divestment has been expended.

DHS 103.063(3)(d)2. 2. Expended amounts shall be determined, as long as the person is institutionalized, by using the average monthly MA expenditure, statewide, for care provided in an SNF.

DHS 103.063(3)(d)3. 3. An individual who is an inpatient in a SNF, ICF or inpatient psychiatric facility who has been determined to have divested a homestead, may be found eligible if:

DHS 103.063(3)(d)3.a. a. It is shown to the satisfaction of the department that the individual can reasonably be expected to be discharged from the medical institution and return to that homestead;

DHS 103.063(3)(d)3.b. b. The title to the homestead was transferred to the individual’s spouse or child who is under age 21 or is blind or totally and permanently disabled according to a determination made by the department’s bureau of social security disability insurance;

DHS 103.063(3)(d)3.c. c. It is shown to the satisfaction of the department that the individual intended to dispose of the homestead either at fair market value or for other valuable consideration; or

DHS 103.063(3)(d)3.d. d. It is determined by the department that the denial of eligibility would work undue hardship on the individual.

DHS 103.063 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; renum. from HSS 103.02 and am., cr. (1), Register, April, 1990, No. 412, eff. 5-1-90.

DHS 103.065 DHS 103.065 Divestment on or after August 9, 1989.

DHS 103.065(1) (1) Applicability. This section applies to all institutionalized applicants for and recipients of MA who dispose of resources at less than fair market value on or after August 9, 1989, except for inter-spousal transfers occurring before October 1, 1989, and to all institutionalized applicants for and recipients of MA whose spouse disposes of resources at less than fair market value on or after July 1, 1990. Section DHS 103.063 applies to all applicants and recipients who divested before August 9, 1989 and to inter-spousal transfers occurring before October 1, 1989.

DHS 103.065(2) (2) Purpose. This section implements s. 49.453, Stats., which provides for a period of restricted MA coverage when an individual who is institutionalized or becomes institutionalized, or the individual’s spouse, disposes of resources at less than fair market value.

DHS 103.065(3) (3) Definitions. In this section:

DHS 103.065(3)(a) (a) “Annuity” means a written contract under which, in return for payment of a premium or premiums, an individual or individuals have the right to receive fixed, periodic payments for life or up to a fixed point in time.

DHS 103.065(3)(b) (b) “Community spouse” means a person who is legally married as recognized under state law to an institutionalized individual but is not himself or herself an institutionalized individual.

DHS 103.065(3)(c) (c) “Expected value of the benefit” means the amount that an irrevocable annuity will pay to a primary annuitant or to joint annuitants during his or her expected lifetime.

DHS 103.065(3)(d) (d) “Institutionalized individual” means an applicant or recipient who is an inpatient in an SNF or ICF, an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in an SNF or ICF, or receiving home and community-based care MA services under ss. 49.46 and 49.47, Stats.

DHS 103.065(3)(e) (e) “Joint annuitants” means the institutionalized individual and his or her spouse named as the payees under an annuity.

DHS 103.065(3)(f) (f) “Medical assistance” or “MA” means payment for services provided to a resident of an SNF or ICF under s. DHS 107.09 (2) and (4) (a), payment to a medical institution as defined under 42 CFR 435.1009 for care based on a level of care provided in an SNF or ICF, or payment for services provided under a home and community-based care waiver program authorized under 42 USC 1396n (c).

DHS 103.065(3)(g) (g) “Medical assistance card services” means the services covered under ch. DHS 107, except for services reimbursed as institutional care, as defined by s. DHS 107.09 (2) and (4) (a), services received in an SNF or ICF or a medical institution and services reimbursed under a home and community-based care waiver program authorized under 42 USC 1396n (c).

DHS 103.065(3)(h) (h) “MA eligibility handbook” means the medical assistance program handbook issued by the department’s division of economic support for use by agencies in determining eligibility for MA.

DHS 103.065(3)(i) (i) “Primary annuitant” means the first individual, which may be either the institutionalized individual or his or her spouse, to receive payment from an annuity.

DHS 103.065(3)(j) (j) “Resource” has the meaning given in 42 USC 1382b, except that the home, as defined in s. DHS 101.03 (75), is a nonexempt resource.

DHS 103.065(4) (4) Divestment.

DHS 103.065(4)(a) (a) Divestment resulting in ineligibility. An institutionalized individual or someone acting on behalf of that individual who disposes of resources at less than fair market value within 30 months immediately before or at any time after the individual becomes institutionalized if the individual is receiving MA on the date he or she becomes institutionalized or, if the individual is not receiving MA on that date, within 30 months immediately before or at any time after the date the individual applies for MA while institutionalized, shall be determined to have divested. A divestment results in ineligibility for MA for the institutionalized individual unless made to an exempt party under par. (b) or (c) or when one of the circumstances in par. (d) exist. An institutionalized individual may also be determined ineligible for MA if his or her spouse disposes of resources at less than fair market value on or after July 1, 1990. In this paragraph, “receiving” means entitled to receive as well as actually receiving, in the same way that “recipient” as defined in s. DHS 101.03 (150) means a person who is entitled to receive benefits under MA as defined under s. DHS 101.03 (95).

DHS 103.065 Note Note: The department advises that when the transfer for less than fair market value has been made by the spouse of the institutionalized applicant or recipient, the determination of whether or not the transfer will be treated as a divestment will be made pursuant to both the divestment provisions under s. 49.453, Stats., and the spousal impoverishment prevention provisions under s. 49.455, Stats.

DHS 103.065(4)(am) (am) Transfer of resources within same month. In determining the amount of the divestment to be satisfied, the agency shall consider all transfers by either the institutionalized individual or his or her community spouse at less than fair market value that occur within a calendar month as one divestment.

DHS 103.065(4)(at) (at) Transfer of resources to an irrevocable annuity on or after October 1, 1993.

DHS 103.065(4)(at)1. 1. Whenever an institutionalized individual or his or her spouse, or another person acting on behalf of the institutionalized individual or his or her spouse, transfers funds on or after October 1, 1993, to an irrevocable annuity in an amount that exceeds the expected value of the benefit, the institutionalized individual or his or her spouse shall be determined to have divested.

DHS 103.065(4)(at)2. 2. The agency shall determine the amount of the divestment under subd. 1. by:

DHS 103.065(4)(at)2.a. a. Determining the life expectancy of the primary annuitant or joint annuitants using the life expectancy tables included in the MA eligibility handbook. Table I shows the age at which the male or female institutionalized individual chose the settlement option for annuitization, life expectancy for an individual of that age, and estimated remaining years of life based on the age at which the institutionalized individual chose the settlement option. Table II shows the ages at which both the male and female joint annuitants chose the settlement option for annuitization, life expectancy for each individual of that individual’s age, and estimated remaining years of life based on the ages at which the joint annuitants chose this settlement option; and

DHS 103.065(4)(at)2.b. b. Adding together the amount of all the payments from the irrevocable annuity scheduled to be made after the month in which the primary annuitant’s age or joint annuitants’ ages exceed the estimated remaining years of life. The divested amount is the sum of all the payments to be made from the irrevocable annuity after the month in which the primary annuitant’s age or joint annuitants’ ages exceed the estimated remaining years of life.

DHS 103.065 Note Note: For a copy of the life expectancy tables included in the MA eligibility handbook, write the Bureau of Health Information Policy, Division of Public Health, P.O. Box 2659, Madison, WI 53701-2659.

DHS 103.065(4)(at)3. 3. If the agency receives a physician’s statement which states that the primary annuitant or joint annuitant had a diagnosed medical condition which would shorten his or her life expectancy and that the medical condition was diagnosed before the institutionalized individual, his or her spouse, or someone acting on behalf of the institutionalized individual or his or her spouse transferred funds to an irrevocable annuity, the agency shall determine the expected value of the benefits based upon the physician’s statement instead of using a life expectancy table as provided under subd. 2.

DHS 103.065(4)(b) (b) Permitted divestment to an exempt party — homestead property. Transfer of homestead property at less than fair market value is not divestment resulting in ineligibility under this section if the individual transferred title to the homestead property to:

DHS 103.065(4)(b)1. 1. The spouse of the institutionalized individual on or after October 1, 1989;

DHS 103.065(4)(b)2. 2. A child of the institutionalized individual who is under age 21 or who meets the SSI definition of total and permanent disability or blindness under 42 USC 1382c;

DHS 103.065(4)(b)3. 3. A sibling of the institutionalized individual who has an equity interest in the homestead and who was residing in the institutionalized individual’s home for at least one year immediately before the date the individual became an institutionalized individual. In this subdivision, “equity interest” means ownership interest in a homestead by one or more persons who pay or have paid all or a portion of mortgage or land contract payments, expenses for upkeep and repair or payment of real estate taxes. The institutionalized individual shall provide documentation to verify the sibling’s equity interest in the homestead; or

DHS 103.065(4)(b)4. 4. The child, other than a child described in subd. 2., of the institutionalized individual who was residing in the institutionalized individual’s home for a period of at least 2 years immediately before the date the individual became an institutionalized individual and who provided care to the institutionalized individual which permitted him or her to reside at home rather than in an SNF, ICF or medical institution which receives payment based on a level of care provided in an SNF or ICF. The institutionalized individual shall provide a notarized statement to the agency from his or her physician or another person or persons who have personal knowledge of the living circumstances of the institutionalized individual stating that the individual was able to remain in his or her home because of the care provided by the child. A notarized statement only from the child does not satisfy the requirements of this subdivision.

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)1. 1. To or from the individual’s spouse or to another individual for the sole benefit of the spouse; or

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. 2. It is shown to the satisfaction of the department that one of the following occurred:

DHS 103.065(4)(d)2.a. a. The individual intended to dispose of the resource either at fair market value or for other valuable consideration;

DHS 103.065(4)(d)2.b. b. The resource was transferred exclusively for some purpose other than to become eligible for MA;

DHS 103.065(4)(d)2.c. c. The ownership of the divested property was returned to the individual who originally disposed of it; 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)(a) (a) Thirty months; or

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) (6) Agency responsibilities.

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 History 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; correction in (4) (c) 3. made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715.

DHS 103.07 DHS 103.07 Income.

DHS 103.07(1) (1) Special situations of institutionalized persons.

DHS 103.07(1)(a) (a) Support received by 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.

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.

DHS 103.07(1)(b)2. 2. 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 and 416.1124 shall be used as appropriate in computing income.

DHS 103.07(1)(b)3. 3. 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.:

DHS 103.07(1)(b)3.a. a. All earnings of a child less than 14 years old, or less than 18 years old when the child is a full-time student;

DHS 103.07(1)(b)3.b. b. All earnings of a child less than 18 years old who attends school part-time and is employed fewer than 30 hours a week;

DHS 103.07(1)(b)3.c. c. Any portion of any grant, scholarship or fellowship used to pay the costs of tuition, fees, books and transportation to and from classes;

DHS 103.07(1)(b)3.d. d. Amounts received for foster care or subsidized adoption;

DHS 103.07(1)(b)3.e. e. The bonus value of food stamps and the value of foods donated by the federal department of agriculture;

DHS 103.07(1)(b)3.f. f. Home produce grown for personal consumption; and

DHS 103.07(1)(b)3.g. g. Income actually set aside for the post-high school education of a child who is a junior or senior in high school.

DHS 103.07(1)(c) (c) When both spouses are institutionalized and there is an application for MA. When both spouses are institutionalized, the following shall apply:

DHS 103.07(1)(c)1. 1. 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;

DHS 103.07(1)(c)2. 2. 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

DHS 103.07(1)(c)3. 3. 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, Stats.

DHS 103.07(1)(d) (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:

DHS 103.07(1)(d)1. 1. A personal needs allowance, as provided under s. 49.45 (7) (a), Stats., and

DHS 103.07(1)(d)2. 2. If employed, the first $65 and one-half of the remainder of gross earnings;

DHS 103.07(1)(d)3. 3. The cost of health insurance;

DHS 103.07(1)(d)4. 4. Necessary medical or remedial care recognized under state law but not covered by MA;

DHS 103.07(1)(d)5. 5. 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) (am) 1m., Stats.; and

DHS 103.07(1)(d)6. 6. 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) (2) Special types of income.

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.