49.45(42)(a)
(a) The provider of the personal care services receives prior authorization from the department for all personal care services that are provided to the individual in excess of 50 hours in a calendar year.
49.45(42)(b)
(b) The individual is not eligible to receive home health aide services under medicare, as defined in
sub. (3) (L) 1. b.
49.45(43)
(43) Case management services for high-cost recipients. The department may establish a program to provide case management services for medical assistance recipients with high-cost chronic health conditions or high-cost catastrophic health conditions. If the department establishes a program to provide these case management services, the department shall provide reimbursement for providers of these case management services under the medical assistance program.
49.45(44)
(44) Prenatal, postpartum and young child care coordination. Providers in Milwaukee County that are certified to provide care coordination services under
s. 49.46 (2) (b) 12. may be certified to provide to medical assistance recipients prenatal and postpartum care coordination services and care coordination services for children who have not attained the age of 7. The department shall provide reimbursement for these care coordination services only if at least one of the following conditions is met:
49.45(44)(a)
(a) The recipient is a resident of Milwaukee County and has received services under
s. 49.46 (2) (b) 12. and is pregnant or has given birth within 8 weeks after the individual ceased to receive services under
s. 49.46 (2) (b) 12.
49.45(44)(b)
(b) The recipient is a resident of Milwaukee County, is pregnant and has received a risk assessment approved by the department.
49.45(44)(c)
(c) The recipient is a resident of Milwaukee County, has given birth within the 8 weeks immediately preceding the request for services under
s. 49.46 (2) (b) 12m. and has received a risk assessment approved by the department.
49.45(45)
(45) In-home and community mental health and alcohol and other drug abuse services. 49.45(45)(a)(a) Services under
s. 49.46 (2) (b) 6. fm. provided to an individual are reimbursable under the medical assistance program only if all of the following conditions are met:
49.45(45)(a)1.
1. Reimbursement for the services under
s. 49.46 (2) (b) 6. fm. in the manner provided under this subsection is permitted pursuant to federal law or pursuant to a waiver from the secretary of the federal department of health and human services.
49.45(45)(a)2.
2. The county, city, town or village in which the individual resides elects to make the services under
s. 49.46 (2) (b) 6. fm. available in the county, city, town or village through the medical assistance program.
49.45(45)(b)
(b) A county, city, town or village that elects to make the services under
s. 49.46 (2) (b) 6. fm. available shall reimburse a provider of the services for the amount of the allowable charges for those services under the medical assistance program that is not provided by the federal government. The department shall reimburse the provider only for the amount of the allowable charges for those services under the medical assistance program that is provided by the federal government.
49.45(46)
(46) Alcohol and other drug abuse residential treatment services. 49.45(46)(a)(a) If a county, city, town or village elects to become certified as a provider of alcohol and other drug abuse residential treatment services or to contract with a certified provider to provide the services, the county, city, town or village may provide directly or under contract alcohol and other drug abuse residential treatment services in facilities with fewer than 16 beds under this subsection in the county, city, town or village to medical assistance recipients through the medical assistance program. A county, city, town or village that elects to provide or to contract for the services shall pay the amount of the allowable charges for the services under the medical assistance program that is not provided by the federal government. The department shall reimburse the county, city, town or village under this subsection only for the amount of the allowable charges for those services under the medical assistance program that is provided by the federal government.
49.45(46)(b)
(b) This subsection does not apply after July 1, 2003.
49.45(47)(a)(a) In this subsection, "adult day care center" means an entity that provides services for part of a day in a group setting to adults who need an enriched health-supportive or social experience and who may need assistance with activities of daily living, supervision or protection.
49.45(47)(b)
(b) No person may receive reimbursement under
s. 46.27 (11) for the provision of services to clients in an adult day care center unless the adult day care center is certified by the department under
sub. (2) (a) 11. as a provider of medical assistance.
49.45(47)(c)
(c) The biennial fee for the certification required under
par. (b) of an adult day care center is $89, plus a biennial fee of $17.80 per client, based on the number of clients that the adult day care center is certified to serve. Fees collected under this paragraph shall be credited to the appropriation account under
s. 20.435 (6) (jm).
49.45(47)(d)
(d) The department, by rule, may increase any fee specified in
par. (c).
49.45 History
History: 1971 c. 40 s.
93;
1971 c. 42,
125;
1971 c. 213 s.
5;
1971 c. 215,
217,
307;
1973 c. 62,
90,
147;
1973 c. 333 ss.
106g,
106h,
106j,
201w;
1975 c. 39;
1975 c. 223 s.
28;
1975 c. 224 ss.
54h,
56 to
59m;
1975 c. 383 s.
4;
1975 c. 411;
1977 c. 29,
418;
1979 c. 34 ss.
837f to
838,
2102 (20) (a);
1979 c. 102,
177,
221,
355;
1981 c. 20 ss.
839 to
854,
2202 (20) (r);
1981 c. 93,
317;
1983 a. 27 ss.
1046 to
1062m,
2200 (42);
1983 a. 245,
447,
527;
1985 a. 29 ss.
1026m to
1031d,
3200 (23), (56),
3202 (27);
1985 a. 120,
176,
269;
1985 a. 332 ss.
91,
251 (5),
253;
1985 a. 340;
1987 a. 27 ss.
989r to
1000s,
2247,
3202 (24);
1987 a. 186,
307,
339,
399;
1987 a. 403 s.
256;
1987 a. 413;
1989 a. 6;
1989 a. 31 ss.
1402 to
1452g,
2909g,
2909i;
1989 a. 107,
173,
310,
336,
351,
359;
1991 a. 22,
39,
80,
250,
269,
315,
316;
1993 a. 16 ss.
1362g to
1403,
3883;
1993 a. 27,
107,
112,
183,
212,
246,
269,
335,
356,
437,
446,
469;
1995 a. 20;
1995 a. 27 ss.
2947 to
3002r,
7299,
9126 (19),
9130 (4),
9145 (1);
1995 a. 191,
216,
225,
289,
303,
398,
417,
457;
1997 a. 3,
13,
27,
114,
175,
191,
237,
252,
293;
1999 a. 9,
63,
103,
180,
185.
49.45 Annotation
Wisconsin has no medical assistance plan independent of Medicaid. Non-residence under federal Medicaid regulations is determinative of medical assistance eligibility. Pope v. DHSS,
187 Wis. 2d 207,
522 N.W.2d 22 (Ct. App. 1994).
49.45 Annotation
Section 49.89, not sub. (19) (a) 2., specifically addresses assignment of actions and subrogation of rights by a public assistance recipient who is injured and has a tort claim against a 3rd party. Ellsworth v. Schelbrock, 2000 WI 63,
235 Wis. 2d 678,
611 N.W.2d 764.
49.45 Annotation
A contract between the trustees of a nursing home and a medical clinic for exclusive medical services under the medical assistance act for residents of such home violates public policy of this state. 59 Atty. Gen. 68.
49.45 Annotation
Medical Assistance & Divestment. Canellos. Wis. Law. Aug. 1991.
49.453
49.453
Divestment of assets. 49.453(1)(am)
(am) "Covered individual" means an individual who is an institutionalized individual or a noninstitutionalized individual.
49.453(1)(c)
(c) "Expected value of the benefit" means the amount that an irrevocable annuity will pay to the annuitant during his or her expected lifetime as determined under
sub. (4) (c).
49.453(1)(f)
(f) "Look-back date" means for a covered individual, the date that is 36 months before, or with respect to payments from a trust or portions of a trust that are treated as assets transferred by the covered individual under
s. 49.454 (2) (c) or
(3) (b) the date that is 60 months before:
49.453(1)(f)1.
1. For a covered individual who is an institutionalized individual, the first date on which the covered individual is both an institutionalized individual and has applied for medical assistance.
49.453(1)(f)2.
2. For a covered individual who is a noninstitutionalized individual, the date on which the covered individual applies for medical assistance or, if later, the date on which the covered individual, his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transferred assets for less than fair market value.
49.453(1)(g)
(g) "Reasonable compensation" means the prevailing local market rate of compensation for the service or care provided.
49.453(1)(h)
(h) "Relative" means an individual who is related to another by blood, marriage or adoption.
49.453(2)
(2) Ineligibility for medical assistance for certain services. 49.453(2)(a)(a)
Institutionalized individuals. Except as provided in
sub. (8), if an institutionalized individual or his or her spouse, or another person acting on behalf of the institutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the institutionalized individual's look-back date, the institutionalized individual is ineligible for medical assistance for the following services for the period specified under
sub. (3):
49.453(2)(a)2.
2. For a level of care in a medical institution equivalent to that of a nursing facility.
49.453(2)(b)
(b)
Noninstitutionalized individuals. Except as provided in
sub. (8), if a noninstitutionalized individual or his or her spouse, or another person acting on behalf of the noninstitutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the noninstitutionalized individual's look-back date, the noninstitutionalized individual is ineligible for medical assistance for the following services for the period specified under
sub. (3):
49.453(2)(b)2.
2. Other long-term care services specified by the department by rule.
49.453(3)(a)(a) The period of ineligibility under this subsection begins on the first day of the first month beginning on or after the look-back date during or after which assets have been transferred for less than fair market value and that does not occur in any other periods of ineligibility under this subsection.
49.453(3)(b)
(b) The department shall determine the number of months of ineligibility as follows:
49.453(3)(b)1.
1. The department shall determine the total, cumulative uncompensated value of all assets transferred by the covered individual or his or her spouse on or after the look-back date.
49.453(3)(b)2.
2. The department shall determine the average monthly cost to a private patient of nursing facility services in the state at the time that the covered individual applied for medical assistance.
49.453(3)(b)3.
3. The number of months of ineligibility equals the number determined by dividing the amount determined under
subd. 1. by the amount determined under
subd. 2.
49.453(3)(c)
(c) If the spouse of an individual makes a transfer of assets that results in a period of ineligibility under this section and otherwise becomes eligible for medical assistance, the department shall apportion the period of ineligibility between the individual and the spouse. The department shall promulgate rules establishing a reasonable methodology for apportioning a period of ineligibility under this paragraph.
49.453(4)
(4) Irrevocable annuities, promissory notes and similar transfers. 49.453(4)(a)(a) For the purposes of
sub. (2), whenever a covered individual or his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transfers assets to an irrevocable annuity, or transfers assets by promissory note or similar instrument, in an amount that exceeds the expected value of the benefit, the covered individual or his or her spouse transfers assets for less than fair market value. A transfer to an annuity, or a transfer by promissory note or similar instrument, is not in excess of the expected value only if all of the following are true:
49.453(4)(a)1.
1. The periodic payments back to the transferor include principal and interest that, at the time that the transfer is made, is at least at one of the following:
49.453(4)(a)1.a.
a. For an annuity, promissory note or similar instrument that is not specified under
subd. 1. b. or
par. (am), the applicable federal rate required under section
1274 (d) of the Internal Revenue Code, as defined in
s. 71.01 (6).
49.453(4)(a)1.b.
b. For an annuity with a guaranteed life payment, the appropriate average of the applicable federal rates based on the expected length of the annuity minus 1.5%.
49.453(4)(a)2.
2. The terms of the instrument provide for a payment schedule that includes equal periodic payments, except that payments may be unequal if the interest payments are tied to an interest rate and the inequality is caused exclusively by fluctuations in that rate.
49.453(4)(am)
(am) Paragraph (a) 1. does not apply to a variable annuity that is tied to a mutual fund that is registered with the federal securities and exchange commission.
49.453(4)(b)
(b) The amount of assets that is transferred for less than fair market value under
par. (a) is the amount by which the transferred amount exceeds the expected value of the benefit.
49.453(4)(c)
(c) The department shall promulgate rules specifying the method to be used in calculating the expected value of the benefit, based on
26 CFR 1.72-
1 to
1.72-
18, and specifying the criteria for adjusting the expected value of the benefit based on a medical condition diagnosed by a physician before the assets were transferred to the annuity, or transferred by promissory note or similar instrument. In calculating the amount of the divestment when a transfer to an annuity, or a transfer by promissory note or similar instrument, is made, payments made to the transferor in any year subsequent to the year in which the transfer was made shall be discounted to the year in which the transfer was made by the applicable federal rate specified under
par. (a) on the date of the transfer.
49.453(5)
(5) Care or personal services. For the purposes of
sub. (2), whenever a covered individual or his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transfers assets to a relative as payment for care or personal services that the relative provides to the covered individual, the covered individual or his or her spouse transfers assets for less than fair market value unless the care or services directly benefit the covered individual, the amount of the payment does not exceed reasonable compensation for the care or services that the relative performs and, if the amount of the payment exceeds 10% of the community spouse resource allowance limit specified in
s. 49.455 (6) (b) 1., the agreement to pay the relative is specified in a notarized written agreement that exists at the time that the relative performs the care or services.
49.453(6)
(6) Common ownership. For purposes of
sub. (2), if a covered individual holds an asset in common with another person in a joint tenancy, tenancy in common, or similar arrangement, the asset, or the affected portion of the asset, is considered to be transferred by the covered individual when an action is taken, either by the covered individual or by any other person, that reduces or eliminates the covered individual's ownership or control of the asset.
49.453(7)
(7) Certain authorizations. For the purposes of
sub. (2), if a covered individual or his or her spouse authorizes another person to transfer, encumber, lease, consume or otherwise act with respect to an asset as though the asset belonged to that other person; if that other person exercises the authority in a way that causes the asset to be unavailable for the support and maintenance of the covered individual or his or her spouse; and if the covered individual does not receive fair market value for the asset, then the covered individual or his or her spouse transfers assets for less than fair market value at the time that the other person exercises the authority.
49.453(8)
(8) Inapplicability. Subsections (2) and
(3) do not apply to transfers of assets if the assets are exempt under
42 USC 1396p (c) (2) or if the department determines that application of this section would work an undue hardship. The department shall promulgate rules concerning the transfer of assets exempt under
42 USC 1396p (c) (2).
49.453 History
History: 1993 a. 437 ss.
74 to
92;
1997 a. 35;
1999 a. 9,
185.
49.453 Annotation
A wife's failure to assert a claim against her deceased husband's estate for her statutorily granted share of the estate constituted an act of divestment. Tannler v. DHSS,
211 Wis. 2d 179,
564 N.W.2d 735 (1997).
49.453 Annotation
The grantor of an irrevocable trust that allowed the grantor to live in trust property for her life unless the grantor was found incompetent, in which case the trust could be terminated and the property distributed, did not divest an asset when she was found incompetent and the trustee distributed the residence pursuant to the trust document. Artac v. DHFS, 2000 WI App 88,
234 Wis. 2d 480,
610 N.W.2d 115.
49.454
49.454
Treatment of trust amounts. 49.454(1)(a)(a) Except as provided in
sub. (4), this section applies to an individual with respect to a trust if assets of the individual or the individual's spouse were used to form all or part of the corpus of the trust and if any of the following persons established the trust other than by will:
49.454(1)(a)3.
3. A person, including a court or administrative body with legal authority to act in place of or on behalf of the individual or the individual's spouse.
49.454(1)(a)4.
4. A person, including a court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.
49.454(1)(b)
(b) If the corpus of a trust under
par. (a) includes assets of a person other than the individual or the individual's spouse, this section applies only with respect to the portion of the trust attributable to the assets of the individual or the individual's spouse.
49.454(2)
(2) Treatment of revocable trust amounts. For purposes of determining an individual's eligibility for, or amount of benefits under, medical assistance:
49.454(2)(a)
(a) The corpus of a revocable trust is considered a resource available to the individual.
49.454(2)(b)
(b) Payments from a revocable trust to or for the benefit of the individual are considered income of the individual.
49.454(2)(c)
(c) Other payments from a revocable trust are considered transfers of assets by the individual subject to
s. 49.453.
49.454(3)
(3) Treatment of irrevocable trust amounts. For purposes of determining an individual's eligibility for, or amount of benefits under, medical assistance:
49.454(3)(a)
(a) If there are circumstances under which payment from an irrevocable trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to or for the benefit of the individual could be made is considered a resource available to the individual, and payments from that portion of the corpus or income:
49.454(3)(a)1.
1. To or for the benefit of the individual, are considered income of the individual.
49.454(3)(a)2.
2. For any other purpose, are considered transfers of assets by the individual subject to
s. 49.453.
49.454(3)(b)
(b) Any portion of an irrevocable trust from which, or any income on the corpus from which, no payment could under any circumstances be made to or for the benefit of the individual, is considered to be an asset transferred by the individual subject to
s. 49.453. The asset is considered to be transferred as of the date of the establishment of the trust, or, if later, the date on which payment to the individual was foreclosed. The value of the trust shall be determined for purposes of
s. 49.453 by including the amount of any payments made from that portion of the trust after that date.
