Amendment ASA1-AB40

AB40-ASA1,621,6 2. Notwithstanding subd. 1., "property of a decedent" includes all real and personal property in which the nonrecipient surviving spouse had an ownership interest at the recipient's death and in which the recipient had a marital property interest with that nonrecipient surviving spouse at any time within 5 years before the recipient applied for medical assistance or during the time that the recipient was eligible for medical assistance.

AB40-ASA1,1184 Section 1184. 49.496 (3) (a) (intro.) of the statutes is amended to read:

AB40-ASA1,621,12 49.496 (3) (a) (intro.) Except as provided in par. (b), the department shall file a claim against the estate of a recipient, and against the estate of a nonrecipient surviving spouse, for all of the following, subject to the exclusion of any amounts under the Long-Term Care Partnership Program established under s. 49.45 (31), unless already recovered by the department under this section:

AB40-ASA1,1185 Section 1185. 49.496 (3) (a) 2. a. of the statutes is amended to read:

AB40-ASA1,621,16 49.496 (3) (a) 2. a. Home-based or community-based services under 42 USC 1396d (a) (7) and (8) and under any waiver granted under 42 USC 1396n (c) (4) (B) or 42 USC 1396u.

AB40-ASA1,1186 Section 1186. 49.496 (3) (a) 2. am. of the statutes is created to read:

AB40-ASA1,621,19 49.496 (3) (a) 2. am. All services provided to an individual while the individual is participating in a long-term care program.

AB40-ASA1,1187 Section 1187. 49.496 (3) (a) 2. b. of the statutes is repealed.

AB40-ASA1,1188 Section 1188. 49.496 (3) (a) 2. c. of the statutes is repealed.

AB40-ASA1,1189 Section 1189. 49.496 (3) (ad) of the statutes is created to read:

AB40-ASA1,622,2 49.496 (3) (ad) The amount the department may claim against an estate of a recipient, or an estate of a nonrecipient surviving spouse, for services that are described under par. (a) 2. am. and that are provided by a managed long-term care program funded by capitated payments is equal to the amount of the capitated payment for the recipient.

AB40-ASA1,1190 Section 1190. 49.496 (3) (aj) of the statutes is created to read:

AB40-ASA1,622,6 49.496 (3) (aj) 1. Property that is subject to the department's claim under par. (a) in the estate of a recipient or in the estate of a nonrecipient surviving spouse is all property of a decedent that is included in the estate.

AB40-ASA1,622,11 2. There is a presumption, which may be rebutted by clear and convincing evidence, that all property in the estate of a nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property in the estate of the nonrecipient surviving spouse is subject to the department's claim under par. (a).

AB40-ASA1,1191 Section 1191. 49.496 (3) (am) (intro.) of the statutes is amended to read:

AB40-ASA1,622,16 49.496 (3) (am) (intro.) The court shall reduce the amount of a claim under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the recipient's decedent's heirs or the beneficiaries of the recipient's decedent's will to retain the following personal property:

AB40-ASA1,1192 Section 1192. 49.496 (3) (c) 1. of the statutes is amended to read:

AB40-ASA1,622,24 49.496 (3) (c) 1. If the department's claim is not allowable because of par. (b) and the estate includes an interest in any 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 home real property subject to a lien in favor of the department for the amount described in par. (a). 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).

AB40-ASA1,1193 Section 1193. 49.496 (3) (c) 2. of the statutes is amended to read:

AB40-ASA1,623,7 49.496 (3) (c) 2. If the department's claim is not allowable because of par. (b), the estate includes an interest in any 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 home real property is assigned subject to a lien in favor of the department for the amount described in par. (a). 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.

AB40-ASA1,1194 Section 1194. 49.496 (3) (d) (intro.) of the statutes is amended to read:

AB40-ASA1,623,10 49.496 (3) (d) (intro.) The department may not enforce the a lien under par. (c) as long as any of the following survive the decedent:

AB40-ASA1,1195 Section 1195. 49.496 (3) (dm) of the statutes is created to read:

AB40-ASA1,623,13 49.496 (3) (dm) All of the following apply to a lien under par. (c) that the department may not enforce because of par. (d):

AB40-ASA1,623,16 1. 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.

AB40-ASA1,623,18 2. The department shall release the lien in the circumstances described in s. 49.848 (5) (f).

AB40-ASA1,1196 Section 1196. 49.496 (6m) of the statutes is amended to read:

AB40-ASA1,624,2 49.496 (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. This subsection does not apply with respect to claims against the estates of nonrecipient surviving spouses.

AB40-ASA1,1197 Section 1197. 49.4962 of the statutes is created to read:

AB40-ASA1,624,5 49.4962 Voiding certain transfers of real property. (1) Definitions. In this section:

AB40-ASA1,624,6 (a) "Conveyance" has the meaning given in s. 706.01 (4).

AB40-ASA1,624,8 (b) "Fair market value" means the price that a willing buyer would pay a willing seller for the purchase of real property.

AB40-ASA1,624,9 (c) "Fraudulent transfer" means any of the following:

AB40-ASA1,624,10 1. A transfer of title to real property for less than fair market value.

AB40-ASA1,624,13 2. A transfer of title to real property by a conveyance that is not recorded during the lifetime of the grantor in the office of the register of deeds of the county in which the real property is located.

AB40-ASA1,624,14 (d) "Grantee" has the meaning given in s. 706.01 (6).

AB40-ASA1,624,15 (e) "Grantor" has the meaning given in s. 706.01 (6).

AB40-ASA1,624,17 (2) Voidable transfers. (a) A transfer of real property to which all of the following apply is voidable by the department:

AB40-ASA1,624,20 1. The transfer was made by a grantor who was receiving or who received medical assistance, or by someone on his or her behalf, during the time that the grantor was eligible for medical assistance.

AB40-ASA1,624,22 2. The department was not notified and was unaware that the transfer was made.

AB40-ASA1,624,24 3. The transfer was made to hinder, delay, or defraud the department from recovering medical assistance benefits that were paid on behalf of the grantor.

AB40-ASA1,625,3 (b) The department may commence an action in circuit court against the grantee to void the transfer. If the court voids the transfer, the title to the real property reverts to the grantor or his or her estate.

AB40-ASA1,625,7 (3) Presumption. There is a presumption, which may be rebutted by clear and convincing evidence, that a transfer described in sub. (2) (a) 1. that is a fraudulent transfer was made to hinder, delay, or defraud the department from recovering medical assistance benefits that were paid on behalf of the grantor.

AB40-ASA1,625,11 (4) Burden of proof. With respect to a transfer under sub. (1) (c) 1., the burden of proof for establishing fair market value is on the grantee. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.

AB40-ASA1,625,15 (5) Inapplicable to purchaser in good faith. Subsection (2) does not apply if, after the transfer described in sub. (2), the real property was transferred by a conveyance to a purchaser in good faith and for a valuable consideration and the conveyance was recorded.

AB40-ASA1,625,17 (6) Applicability. This section applies to any of the following transfers of real property:

AB40-ASA1,625,19 (a) A transfer that is made on or after the effective date of this paragraph .... [LRB inserts date].

AB40-ASA1,625,22 (b) A transfer that was made before the effective date of this paragraph .... [LRB inserts date], if the grantor is receiving medical assistance on, or receives medical assistance after, the effective date of this paragraph .... [LRB inserts date].

AB40-ASA1,1198 Section 1198. 49.67 of the statutes, as affected by 2013 Wisconsin Act 8, is repealed.

AB40-ASA1,1199 Section 1199. 49.682 (1) (am) of the statutes is created to read:

AB40-ASA1,626,2 49.682 (1) (am) "Decedent" means a deceased client or a deceased nonclient surviving spouse, whichever is applicable.

AB40-ASA1,1200 Section 1200. 49.682 (1) (d) of the statutes is created to read:

AB40-ASA1,626,6 49.682 (1) (d) "Nonclient surviving spouse" means any person who was married to a client while the client was receiving services for which the cost may be recovered under sub. (2) (a) and who survived the client.

AB40-ASA1,1201 Section 1201. 49.682 (1) (e) of the statutes is created to read:

AB40-ASA1,626,12 49.682 (1) (e) 1. "Property of a decedent" means all real and personal property to which the client held any legal title or in which the client had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, living trust, or any other arrangement.

AB40-ASA1,626,18 2. Notwithstanding subd. 1., "property of a decedent" includes all real and personal property in which the nonclient surviving spouse had an ownership interest at the client's death and in which the client had a marital property interest with that nonclient surviving spouse at any time within 5 years before the client applied for aid under s. 49.68, 49.683, or 49.685 or during the time that the recipient was eligible for aid under s. 49.68, 49.683, or 49.685.

AB40-ASA1,1202 Section 1202. 49.682 (2) (a) of the statutes is amended to read:

AB40-ASA1,626,23 49.682 (2) (a) Except as provided in par. (d), the department shall file a claim against the estate of a client or, and against the estate of the a nonclient surviving spouse of a client, for the amount of aid under s. 49.68, 49.683, or 49.685 paid to or on behalf of the client.

AB40-ASA1,1203 Section 1203. 49.682 (2) (bm) of the statutes is created to read:

AB40-ASA1,627,3 49.682 (2) (bm) 1. Property that is subject to the department's claim under par. (a) in the estate of a client or in the estate of a nonclient surviving spouse is all property of a decedent that is included in the estate.

AB40-ASA1,627,7 2. There is a presumption, which may be rebutted by clear and convincing evidence, that all property in the estate of the nonclient surviving spouse was marital property held with the client and that 100 percent of the property in the estate of the nonclient surviving spouse is subject to the department's claim under par. (a).

AB40-ASA1,1204 Section 1204. 49.682 (2) (c) (intro.) of the statutes is amended to read:

AB40-ASA1,627,12 49.682 (2) (c) (intro.) The court shall reduce the amount of a claim under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the client's decedent's heirs or the beneficiaries of the client's decedent's will to retain the following personal property:

AB40-ASA1,1205 Section 1205. 49.682 (2) (e) 1. of the statutes is amended to read:

AB40-ASA1,627,20 49.682 (2) (e) 1. If the department's claim is not allowable because of par. (d) 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 home real property subject to a lien in favor of the department for the amount described in par. (a). 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).

AB40-ASA1,1206 Section 1206. 49.682 (2) (e) 2. of the statutes is amended to read:

AB40-ASA1,628,3 49.682 (2) (e) 2. If the department's claim is not allowable because of par. (d), 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 home real property is assigned subject to a lien in favor of the department for the amount described in par. (a). 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.

AB40-ASA1,1207 Section 1207. 49.682 (2) (f) (intro.) of the statutes is amended to read:

AB40-ASA1,628,6 49.682 (2) (f) (intro.) The department may not enforce the a lien under par. (e) as long as any of the following survive the decedent:

AB40-ASA1,1208 Section 1208. 49.682 (2) (fm) of the statutes is created to read:

AB40-ASA1,628,9 49.682 (2) (fm) All of the following apply to a lien under par. (e) that the department may not enforce because of par. (f):

AB40-ASA1,628,12 1. 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.

AB40-ASA1,628,14 2. The department shall release the lien in the circumstances described in s. 49.848 (5) (f).

AB40-ASA1,1209 Section 1209. 49.682 (3) of the statutes is amended to read:

AB40-ASA1,628,21 49.682 (3) The department shall administer the program under this section and may contract with an entity to administer all or a portion of the program, including gathering and providing the department with information needed to recover payment of aid provided under s. 49.68, 49.683, or 49.685. All funds received under this subsection, net of any amount claimed under s. 867.035 (3) 49.849 (5), shall be remitted for deposit in the general fund.

AB40-ASA1,1210 Section 1210. 49.682 (5) of the statutes is amended to read:

AB40-ASA1,629,3 49.682 (5) 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. This subsection does not apply with respect to claims against the estates of nonclient surviving spouses.

AB40-ASA1,1210c Section 1210c. 49.686 (6) of the statutes is repealed.

AB40-ASA1,1211 Section 1211. 49.78 (1) (b) of the statutes is amended to read:

AB40-ASA1,629,10 49.78 (1) (b) "Income maintenance program" means the Medical Assistance program under subch. IV of ch. 49, the Badger Care health care program under s. 49.665, the food stamp program under 7 USC 2011 to 2036 except for the employment and training program described in s. 49.79 (9), or the cemetery, funeral, and burial expenses program under s. 49.785.

AB40-ASA1,1211b Section 1211b. 49.78 (2) (b) 3. of the statutes is amended to read:

AB40-ASA1,629,15 49.78 (2) (b) 3. That the department will reimburse a multicounty consortium for services provided under the contract on a risk-adjusted case load basis using a method determined by the department that includes the number of cases for which the consortium is responsible and the complexity of those cases.

AB40-ASA1,1211c Section 1211c. 49.785 (1) (intro.) of the statutes is amended to read:

AB40-ASA1,629,24 49.785 (1) (intro.) Except as provided in sub. (1m) and subject to s. 49.825, if any recipient specified in sub. (1c) dies and the estate of the deceased recipient is insufficient to pay the funeral, burial, and cemetery expenses of the deceased recipient, from the appropriation under s. 20.435 (4) (br) the department or county or applicable tribal governing body or organization responsible for burial of the recipient shall pay, to the person designated by the department or county department under s. 46.215, 46.22, or 46.23 or applicable tribal governing body or organization responsible for the burial of the recipient, all of the following:

AB40-ASA1,1211d Section 1211d. 49.785 (1m) (a) of the statutes is amended to read:

AB40-ASA1,630,4 49.785 (1m) (a) If the total cemetery expenses for the recipient exceed $3,500, the department or county or applicable tribal governing body or organization responsible for burial of the recipient is not required to make a payment for the cemetery expenses under sub. (1) (a).

AB40-ASA1,1211e Section 1211e. 49.785 (1m) (b) of the statutes is amended to read:

AB40-ASA1,630,9 49.785 (1m) (b) If the total funeral and burial expenses for the recipient exceed $4,500, the department or county or applicable tribal governing body or organization responsible for burial of the recipient is not required to make a payment for funeral and burial expenses under sub. (1) (b).

AB40-ASA1,1211f Section 1211f. 49.785 (1m) (c) of the statutes is amended to read: