49.85(3)(a)5.
5. Request that the person inform the department of health and family services if a bankruptcy stay is in effect with respect to the person or if the claim has been discharged in bankruptcy.
49.85(3)(a)6.
6. Inform the person that the person may need to contact the department of revenue in order to protect the refunds of spouses who are not liable for the claim.
49.85(3)(b)
(b) At least 30 days before certification of an amount, the department of industry, labor and job development shall send a notice to the last-known address of the person from whom that department intends to recover the amount. The notice shall do all of the following:
49.85(3)(b)1.
1. Inform the person that the department of industry, labor and job development intends to certify to the department of revenue an amount that the department of industry, labor and job development has determined to be due under
s. 49.125,
49.161 or
49.195 (3), for setoff from any state tax refund that may be due the person.
49.85(3)(b)2.
2. Inform the person that he or she may appeal the determination of the department of industry, labor and job development to certify the amount by requesting a hearing under
sub. (4) within 30 days after the date of the letter and inform the person of the manner in which he or she may request a hearing.
49.85(3)(b)3.
3. Inform the person that, if the determination of the department of industry, labor and job development is appealed, that department will not certify the amount to the department of revenue while the determination of the department of industry, labor and job development is under appeal.
49.85(3)(b)4.
4. Inform the person that, unless a contested case hearing is requested to appeal the determination of the department of industry, labor and job development, the person may be precluded from challenging any subsequent setoff of the certified amount by the department of revenue, except on the grounds that the certified amount has been partially or fully paid or otherwise discharged, since the date of the notice.
49.85(3)(b)5.
5. Request that the person inform the department of industry, labor and job development if a bankruptcy stay is in effect with respect to the person or if the claim has been discharged in bankruptcy.
49.85(3)(b)6.
6. Inform the person that the person may need to contact the department of revenue in order to protect the refunds of spouses who are not liable for the claim.
49.85(4)(a)(a) If a person has requested a hearing under this subsection, the department of health and family services shall hold a contested case hearing under
s. 227.44, except that the department of health and family services may limit the scope of the hearing to exclude issues that were presented at a prior hearing or that could have been presented at a prior opportunity for hearing.
49.85(4)(b)
(b) If a person has requested a hearing under this subsection, the department of industry, labor and job development shall hold a contested case hearing under
s. 227.44, except that the department of industry, labor and job development may limit the scope of the hearing to exclude issues that were presented at a prior hearing or that could have been presented at a prior opportunity for hearing.
49.85(5)
(5) Effect of certification. Receipt of a certification by the department of revenue shall constitute a lien, equal to the amount certified, on any state tax refunds or credits owed to the obligor. The lien shall be foreclosed by the department of revenue as a setoff under
s. 71.93. Certification of an amount under this section does not prohibit the department of health and family services or the department of industry, labor and job development from attempting to recover the amount through other legal means. The department of health and family services or the department of industry, labor and job development shall promptly notify the department of revenue upon recovery of any amount previously certified under this section.
49.85 History
History: 1993 a. 437,
1995 a. 27 ss.
2143 to
2157,
3212,
9126 (19),
9130 (4); Stats. 1995 s. 49.85;
1995 a. 289.
49.855
49.855
Certification of delinquent payments. 49.855(1)
(1) If a person obligated to provide child support or maintenance is delinquent in making court-ordered payments, or owes an outstanding amount that has been ordered by the court for past support, medical expenses or birth expenses, the clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)], whichever is appropriate, upon application of the county designee under
s. 59.53 (5) or the department of industry, labor and job development, shall certify the delinquent payment or outstanding amount to the department of industry, labor and job development.
49.855 Note
NOTE: Sub. (1) is shown as affected by three acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
49.855(2)
(2) At least annually, the department of industry, labor and job development shall provide to the department of revenue the certifications that it receives under
sub. (1) and any certifications of delinquencies or outstanding amounts that it receives from another state because the obligor resides in this state.
49.855(2m)
(2m) At least annually, the department of health and family services shall certify to the department of revenue any obligation owed to the department of health and family services under
s. 46.10 if the obligation is rendered to a judgment.
49.855(3)
(3) Receipt of a certification by the department of revenue shall constitute a lien, equal to the amount certified, on any state tax refunds or credits owed to the obligor. The lien shall be foreclosed by the department of revenue as a setoff under
s. 71.93 (3),
(6) and
(7). When the department of revenue determines that the obligor is otherwise entitled to a state tax refund or credit, it shall notify the obligor that the state intends to reduce any state tax refund or credit due the obligor by the amount the obligor is delinquent under the support or maintenance order, by the outstanding amount for past support, medical expenses or birth expenses under the court order or by the amount due under
s. 46.10 (4). The notice shall provide that within 20 days the obligor may request a hearing before the circuit court rendering the order. Within 10 days after receiving a request for hearing under this subsection, the court shall set the matter for hearing. Pending further order by the court or family court commissioner, the clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)] is prohibited from disbursing the obligor's state tax refund or credit. The family court commissioner may conduct the hearing. The sole issues at that hearing shall be whether the obligor owes the amount certified and, if not and it is a support or maintenance order, whether the money withheld from a tax refund or credit shall be paid to the obligor or held for future support or maintenance. An obligor may, within 20 days of receiving notice that the amount certified shall be withheld from his or her federal tax refund or credit, request a hearing under this subsection.
49.855 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
49.855(4)
(4) The department of revenue shall send that portion of any state or federal tax refunds or credits withheld for delinquent child support or maintenance or past support, medical expenses or birth expenses to the department of industry, labor and job development for distribution to the appropriate clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)]. The department of industry, labor and job development shall make a settlement at least annually with the department of revenue and with each clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)] who has certified a delinquent obligation or outstanding amount for past support, medical expenses or birth expenses. The settlement shall state the amounts certified, the amounts deducted from tax refunds and credits and returned to the clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)] and the administrative costs incurred by the department of revenue. The department of industry, labor and job development may charge the county whose clerk of circuit court or [county] support collection designee under
s. 59.07 (97m) [59.53 (5m)] certified the obligation or outstanding amount the related administrative costs incurred by the department of industry, labor and job development and the department of revenue.
49.855 Note
NOTE: The bracketed numbers indicate the correct cross-references. The bracketed "county" was inserted by
1995 Wis. Act 404 without being shown as underscored. The change was intended. Corrective legislation is pending.
49.855(4m)(a)(a) In this subsection, "vendor" means a person providing goods or services to this state under
subch. IV or
V of ch. 16 or under
ch. 84 or any medical assistance provider, as defined under
s. 49.43 (10).
49.855(4m)(b)
(b) The department of revenue may provide a certification that it receives under
sub. (2) or
(2m) to the department of administration. Upon receipt of the certification, the department of administration shall determine whether the obligor is a vendor or is receiving any other payments from this state, except for wages, retirement benefits or assistance under s.
45.352, 1971 stats.,
s. 45.351 (1), this chapter or
ch. 46 or
108.If the department of administration determines that the obligor is a vendor or is receiving payments from this state, except for wages, retirement benefits or assistance under s.
45.352, 1971 stats.,
s. 45.351 (1), this chapter or
ch. 46 or
108, it shall begin to withhold the amount certified from those payments and shall notify the obligor that the state intends to reduce any payments due the obligor by the amount the obligor is delinquent under the support or maintenance order, by the outstanding amount for past support, medical expenses or birth expenses under the court order or by the amount due under
s. 46.10 (4). The notice shall provide that within 20 days after receipt of the notice the obligor may request a hearing before the circuit court rendering the order. An obligor may, within 20 days after receiving notice, request a hearing under this paragraph. Within 10 days after receiving a request for hearing under this paragraph, the court shall set the matter for hearing. The family court commissioner may conduct the hearing. Pending further order by the court or family court commissioner, the clerk of circuit court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)] may not disburse the payments withheld from the obligor. The sole issues at the hearing are whether the obligor owes the amount certified and, if not and it is a support or maintenance order, whether the money withheld shall be paid to the obligor or held for future support or maintenance.
49.855 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
49.855(4m)(c)
(c) Except as provided by order of the court after hearing under
par. (b), the department of administration shall continue withholding until the amount certified is recovered in full. The department of administration shall transfer the amounts withheld under this paragraph to the department of industry, labor and job development for distribution to the appropriate clerk of court, county support collection designee under
s. 59.07 (97m) [59.53 (5m)] or department of health and family services, whichever is appropriate.
49.855 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
49.855(5)
(5) Certification of an obligation to the department of industry, labor and job development does not deprive any party of the right to collect the obligation or to prosecute the obligor. The clerk of court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)], whichever is appropriate, shall immediately notify the department of industry, labor and job development of any collection of an obligation that has been certified by the clerk of court or county support collection designee under
s. 59.07 (97m) [59.53 (5m)]. The department of industry, labor and job development shall correct the certified obligation according to the amount the county has collected and report the correction to the department of revenue.
49.855 Note
NOTE: The bracketed language indicates the correct cross-references. Corrective legislation is pending.
49.855(6)
(6) If the state implements the child and spousal support and paternity program under
s. 59.53 (5), the state may act under this section in place of the county designee under
s. 59.07 (97) [59.53 (5)].
49.855 Note
NOTE: Sub. (6) is shown as affected by 2 acts of the 1995 legislature. The correct cross-reference is shown in brackets. Correction legislation is pending.
49.855(7)
(7) The department of industry, labor and job development may provide a certification under
sub. (1) to a state agency or authority under
s. 21.49 (2) (e),
36.11 (6) (b),
36.25 (14),
36.34 (1),
39.30 (2) (e),
39.38 (2),
39.435 (6),
39.44 (4),
39.47 (2m),
45.351 (2) (c),
45.356 (6),
45.396 (6),
45.74 (6),
145.245 (5m) (b),
234.04 (2),
234.49 (1) (c),
234.59 (3) (c),
234.65 (3) (f),
234.90 (3) (d) or
(3g) (c),
234.905 (3) (d),
281.65 (8) (L) or
949.08 (2) (g).
49.855 Note
NOTE: Sub. (7) is shown as affected by 2 acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
49.855 Annotation
State's right to certification and interception is not extinguished by children's attainment of majority. Marriage of Howard v. Howard, 130 W (2d) 206, 387 NW (2d) 96 (Ct. App. 1986).
49.86
49.86
Disbursement of funds and facsimile signatures. Withdrawal or disbursement of moneys deposited in a public depository, as defined in
s. 34.01 (5), to the credit of the department of industry, labor and job development or any of its divisions or agencies shall be by check, share draft or other draft signed by the secretary of industry, labor and job development or by one or more persons in the department of industry, labor and job development designated by written authorization of the secretary of industry, labor and job development. Such checks, share drafts and other drafts shall be signed personally or by use of a mechanical device adopted by the secretary of industry, labor and job development or his or her designees for affixing a facsimile signature. Any public depository shall be fully warranted and protected in making payment on any check, share draft or other draft bearing such facsimile signature notwithstanding that the facsimile may have been placed thereon without the authority of the secretary of industry, labor and job development or his or her designees.
49.86 History
History: 1995 a. 27 ss.
3213,
9130 (4).
49.89
49.89
Third party liability. 49.89(1)
(1)
Definition. In this section, "insurer" includes a sponsor, other than an insurer, that contracts to provide health care services to members of a group.
49.89(2)
(2) Subrogation. The department of health and family services, the department of industry, labor and job development, a county or an elected tribal governing body that provides any public assistance under this chapter or under
s. 253.05 as a result of the occurrence of an injury, sickness or death that creates a claim or cause of action, whether in tort or contract, on the part of a public assistance recipient or beneficiary or the estate of a recipient or beneficiary against a 3rd party, including an insurer, is subrogated to the rights of the recipient, beneficiary or estate and may make a claim or maintain an action or intervene in a claim or action by the recipient, beneficiary or estate against the 3rd party.
49.89(3)
(3) Assignment of actions. By applying for assistance under this chapter or under
s. 253.05, an applicant assigns to the state department, the county department or the tribal governing body that provided the assistance the right to make a claim to recover an indemnity from a 3rd party, including an insurer, if the assistance is provided as a result of the occurrence of injury, sickness or death that results in a possible recovery of an indemnity from the 3rd party.
49.89(3m)(a)(a) An attorney retained to represent a current or former recipient of assistance under this chapter, or the recipient's estate, in asserting a claim that is subrogated under
sub. (2) or assigned under
sub. (3) shall provide notice under
par. (c).
49.89(3m)(b)
(b) If no attorney is retained to represent a current or former recipient of assistance under this chapter, or the recipient's estate, in asserting a claim that is subrogated under
sub. (2) or assigned under
sub. (3), the current or former recipient or his or her guardian or, if the recipient is deceased, the personal representative of the recipient's estate, shall provide notice under
par. (c).
49.89(3m)(c)
(c) If a person is required to provide notice under this paragraph, the person shall provide notice by certified mail to the department that provided the assistance as soon as practicable after the occurrence of each of the following events for a claim under
par. (a) or
(b):
49.89(4)
(4) Control of action. The applicant or recipient or any party having a right under this section may make a claim against the 3rd party or may commence an action and shall join the other party as provided under
s. 803.03 (2). Each shall have an equal voice in the prosecution of such claim or action.
49.89(5)
(5) Recovery; how computed. Reasonable costs of collection including attorney fees shall be deducted first. The amount of assistance granted as a result of the occurrence of the injury, sickness or death shall be deducted next and the remainder shall be paid to the public assistance recipient or other party entitled to payment.
49.89(6)
(6) Departments' duties and powers. The department of health and family services and the department of industry, labor and job development shall enforce their rights under this section and may contract for the recovery of any claim or right of indemnity arising under this section.
49.89(7)
(7) Payments to local units of government. 49.89(7)(a)(a) Any county or elected tribal governing body that has made a recovery under this section shall receive an incentive payment from the sum recovered as provided under this subsection.
49.89(7)(b)
(b) The incentive payment shall be an amount equal to 15% of the amount recovered because of benefits paid under
s. 49.46,
49.465,
49.468 or
49.47. The incentive payment shall be taken from the federal share of the sum recovered as provided under
42 CFR 433.153 and
433.154.
49.89(7)(bm)
(bm) The incentive payment shall be an amount equal to 15% of the amount recovered because of benefits paid as state supplemental payments under
s. 49.77. The incentive payment shall be taken from the state share of the sum recovered.
49.89(7)(c)
(c) The incentive payment shall be an amount equal to 15% of the amount recovered because of benefits paid under
s. 49.19,
49.20,
49.30 or
253.05. The incentive payment shall be taken from the state share of the sum recovered, except that the incentive payment for an amount recovered because of benefits paid under
s. 49.19 shall be considered an administrative cost under
s. 49.19 for the purpose of claiming federal funding.
49.89(7)(d)1.1. Any county or elected tribal governing body that has made a recovery under this section for which it is eligible to receive an incentive payment under
par. (b) or
(bm) shall report such recovery to the department of health and family services within 30 days after the end of the month in which the recovery is made in a manner specified by the department of health and family services.
49.89(7)(d)2.
2. Any county or elected tribal governing body that has made a recovery under this section for which it is eligible to receive an incentive payment under
par. (c) shall report such recovery to the department of industry, labor and job development within 30 days after the end of the month in which the recovery is made in a manner specified by the department of industry, labor and job development.
49.89(7)(e)
(e) The amount of the recovery remaining after payments are made under
pars. (b) to
(c) shall be deposited in the state treasury and credited to the appropriation from which the assistance was originally paid.
49.89(8)
(8) Welfare claims not prejudiced by recipient's release. 49.89(8)(a)(a) No person who has or may have a claim or cause of action in tort or contract and who has received assistance under this chapter or under
s. 253.05 as a result of the occurrence that creates the claim or cause of action may release the liable party or the liable party's insurer from liability to the units of government specified in
sub. (2). Any payment to a beneficiary or recipient of assistance under this chapter or under
s. 253.05 in consideration of a release from liability is evidence of the payer's liability to the unit of government that granted the assistance.
49.89(8)(b)
(b) Liability under
par. (a) is to the extent of assistance payments under this chapter or under
s. 253.05 resulting from the occurrence creating the claim or cause of action, but not in excess of any insurance policy limits, counting payments made to the injured person. The unit of government administering assistance shall include in its claim any assistance paid to or on behalf of dependents of the injured person, to the extent that eligibility for assistance resulted from the occurrence creating the claim or cause of action.
49.89(9)
(9) Powers of health maintenance organizations. A health maintenance organization or other prepaid health care plan has the powers of the department of health and family services under
subs. (2) to
(5) to recover the costs which the organization or plan incurs in treating an individual if all of the following circumstances are present:
49.89(9)(a)
(a) The costs result from an occurrence of an injury or sickness of an individual who is a recipient of medical assistance.
49.89(9)(b)
(b) The occurrence of the injury or sickness creates a claim or cause of action on the part of the recipient or the estate of the recipient.
49.89(9)(c)
(c) The medical costs are incurred during a period for which the department of health and family services pays a capitation or enrollment fee for the recipient.
49.89 Annotation
Counties were entitled to be reimbursed for medical assistance from insurance settlements obtained by accident victims, despite fact that neither victim had been fully compensated. Waukesha County v. Johnson, 107 W (2d) 155, 320 NW (2d) 1 (Ct. App. 1982).
49.89 Annotation
County recouped medical assistance payments from recipient of assistance who was minor. Perkins v. Utnehmer, 122 W (2d) 497, 361 NW (2d) 739 (Ct. App. 1984).
49.89 Annotation
Attorney's fees are not chargeable against public assistance recovered in an action under this section. 70 Atty. Gen. 61.
49.90
49.90
Liability of relatives; enforcement. 49.90(1)(a)1.1. The parent and spouse of any dependent person who is unable to maintain himself or herself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is; but no parent shall be required to support a child 18 years of age or older.
49.90(1)(a)2.
2. Except as provided under
subs. (11) and
(13) (a), the parent of a dependent person under the age of 18 shall maintain a child of the dependent person so far as the parent is able and to the extent that the dependent person is unable to do so. The requirement under this subdivision does not supplant any requirement under
subd. 1. and applies regardless of whether a court has ordered maintenance by the parent of the dependent person or established a level of maintenance by the parent of the dependent person.
49.90(1)(b)
(b) For purposes of this section those persons receiving benefits under federal Title XVI or under
s. 49.77 shall not be deemed dependent persons.
49.90(1)(c)
(c) For the purpose of determining the ability of a parent or spouse to maintain a dependent person or the ability of a parent to support the child of his or her dependent child under the age of 18, credit granted under
subch. VIII of ch. 71 shall not be considered.
49.90(1m)
(1m) Each spouse has an equal obligation to support the other spouse as provided in this chapter. Each parent has an equal obligation to support his or her minor children as provided in this chapter and
chs. 48 and
938.Each parent of a dependent person under the age of 18 has an equal obligation to support the child of the dependent person as provided under
sub. (1) (a) 2.
49.90(2)
(2) Upon failure of these relatives to provide maintenance the authorities or board shall submit to the corporation counsel a report of its findings. Upon receipt of the report the corporation counsel shall, within 60 days, apply to the circuit court for the county in which the dependent person under
sub. (1) (a) 1. or the child of a dependent person under
sub. (1) (a) 2. resides for an order to compel the maintenance. Upon such an application the corporation counsel shall make a written report to the county department under
s. 46.215,
46.22 or
46.23, with a copy to the chairperson of the county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department, and to the department of health and family services or the department of industry, labor and job development, whichever is appropriate.
49.90(2g)
(2g) In addition to the remedy specified in
sub. (2), upon failure of a grandparent to provide maintenance under
sub. (1) (a) 2., another grandparent who is or may be required to provide maintenance under
sub. (1) (a) 2., a child of a dependent minor or the child's parent may apply to the circuit court for the county in which the child resides for an order to compel the provision of maintenance. A county department under
s. 46.215,
46.22 or
46.23, a county child support agency or the department of industry, labor and job development may initiate an action to obtain maintenance of the child by the child's grandparent under
sub. (1) (a) 2., regardless of whether the child receives public assistance.
49.90(2r)
(2r) An action under
sub. (2) or
(2g) for maintenance of a grandchild by a grandparent may be joined with an action to determine paternity under
s. 767.45 (1) or an action for child support under
s. 767.02 (1) (f) or
(j) or
767.08, or both.
49.90(3)
(3) At least 10 days prior to the hearing on the application under
sub. (2) or
(2g), notice of the hearing shall be served upon the grandparent or other relative who is alleged not to have provided maintenance, in the manner provided for the service of summons in courts of record.
49.90(4)
(4) The circuit court shall in a summary way hear the allegations and proofs of the parties and by order require maintenance from these relatives, if they have sufficient ability, considering their own future maintenance and making reasonable allowance for the protection of the property and investments from which they derive their living and their care and protection in old age, in the following order: First the husband or wife; then the father and the mother; and then the grandparents in the instances in which
sub. (1) (a) 2. applies. The order shall specify a sum which will be sufficient for the support of the dependent person under
sub. (1) (a) 1. or the maintenance of a child of a dependent person under
sub. (1) (a) 2., to be paid weekly or monthly, during a period fixed by the order or until the further order of the court. If the court is satisfied that any such relative is unable wholly to maintain the dependent person or the child, but is able to contribute to the person's support or the child's maintenance, the court may direct 2 or more of the relatives to maintain the person or the child and prescribe the proportion each shall contribute. If the court is satisfied that these relatives are unable together wholly to maintain the dependent person or the child, but are able to contribute to the person's support or the child's maintenance, the court shall direct a sum to be paid weekly or monthly by each relative in proportion to ability. Contributions directed by court order, if for less than full support, shall be paid to the department of health and family services and distributed as required by state and federal law. An order under this subsection that relates to maintenance required under
sub. (1) (a) 2. shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses, subject to the limitations under
subs. (1) (a) 2. and
(11). Upon application of any party affected by the order and upon like notice and procedure, the court may modify such an order. Obedience to such an order may be enforced by proceedings for contempt.
49.90(5)
(5) Any party aggrieved by such order may appeal therefrom but when the appeal is taken by the authorities having charge of the dependent person an undertaking need not be filed.
