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.
49.454(4)
(4) Inapplicability. This section does not apply to any trust described in
42 USC 1396p (d) (4) or if the department determines, pursuant to procedures established by the department by rule, that the application of this section would work an undue hardship on an individual.
49.454 History
History: 1993 a. 437.
49.455
49.455
Protection of income and resources of couple for maintenance of community spouse. 49.455(1)(a)
(a) "Community spouse" means an individual who is married to an institutionalized spouse.
49.455(1)(b)
(b) "Consumer price index" means the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor.
49.455(1)(c)
(c) "Family member" means a minor or dependent child, dependent parent or dependent sibling of an institutionalized or community spouse who resides with the community spouse.
49.455(1)(d)
(d) "Institutionalized spouse" means either an individual who is in a medical institution or nursing facility and is married to an individual who is not in a medical institution or nursing facility or an individual who receives services under a waiver under
42 USC 1396n (c) or (d) and is married to an individual who is not in a medical institution or nursing facility and does not receive services under a waiver under
42 USC 1396n (c) or (d).
49.455(1)(e)
(e) "Resources" does not include items excluded under
42 USC 1382b (a) or (d) or items that would be excluded under
42 USC 1382b (a) (2) (A) but for the limitation on total value established under that provision.
49.455(2)
(2) Applicability. The department shall use the provisions of this section in determining the eligibility for medical assistance under
s. 49.46 or
49.47 and the required contribution toward care of an institutionalized spouse.
49.455(3)(a)(a) Except as provided in
par. (b), no income of a spouse is considered to be available to the other spouse during any month in which that other spouse is an institutionalized spouse.
49.455(3)(b)
(b) Notwithstanding
ch. 766, for the purposes of
sub. (4), the following criteria apply in determining the income of an institutionalized spouse or a community spouse:
49.455(3)(b)1.
1. Except as determined under
subd. 2. or
3., unless the instrument providing the income specifically provides otherwise:
49.455(3)(b)1.a.
a. Income paid solely in the name of one spouse is considered to be available only to that spouse.
49.455(3)(b)1.b.
b. Income paid in the names of both spouses is considered to be available one-half to each spouse.
49.455(3)(b)1.c.
c. Income paid in the name of either or both spouses and to one or more other persons is considered to be available to each spouse in proportion to the spouse's interest or, if payment is made to both spouses and each spouse's individual interest is not specified, one-half of the joint interest is considered to be available to each spouse.
49.455(3)(b)2.
2. Except as provided in
subd. 3., if there is no trust or other instrument establishing ownership, income received by a couple is considered to be available one-half to each spouse.
49.455(3)(b)3.
3. Subdivisions 1. and
2. do not apply to income other than income from a trust if the institutionalized spouse establishes, by a preponderance of the evidence, that the ownership interests in the income are other than as provided in
subds. 1. and
2.
49.455(4)
(4) Protecting income for community spouse. 49.455(4)(a)(a) After an institutionalized spouse is determined to be eligible for medical assistance, in determining the amount of that institutionalized spouse's income that must be applied monthly to payment for the costs of care in the institution, the department shall deduct the following amounts in the following order from the institutionalized spouse's income:
49.455(4)(a)2.
2. The community spouse monthly income allowance calculated under
par. (b) or the amount of income of the institutionalized spouse that is actually made available to, or for the benefit of, the community spouse, whichever is less.
49.455(4)(a)3.
3. A family allowance for each family member equal to one-third of the amount by which the family member's monthly income is exceeded by the following:
49.455(4)(a)3.a.
a. Beginning on September 30, 1989, and ending on June 30, 1991, 122% of one-twelfth of the poverty line for a family of 2 persons.
49.455(4)(a)3.b.
b. Beginning on July 1, 1991, and ending on June 30, 1992, 133% of one-twelfth of the poverty line for a family of 2 persons.
49.455(4)(a)3.c.
c. Beginning on July 1, 1992, 150% of one-twelfth of the poverty line for a family of 2 persons.
49.455(4)(a)4.
4. The amount incurred as expenses for medical or remedial care for the institutionalized spouse.
49.455(4)(b)
(b) The community spouse monthly income allowance equals the greater of the following:
49.455(4)(b)1.
1. The minimum monthly maintenance needs allowance determined under
par. (c) or the amount determined at a fair hearing under
sub. (8) (c), if such an amount has been determined, minus the amount of monthly income otherwise available to the community spouse.
49.455(4)(b)2.
2. The amount of monthly support which a court orders the institutionalized spouse to pay for the support of the community spouse.
49.455(4)(c)1.1. For any year, the minimum monthly maintenance needs allowance equals the lesser of the amount determined under
subd. 2., or the sum of the following:
49.455(4)(c)1.a.
a. One-twelfth of 200% of the poverty line for a family of 2 persons.
49.455(4)(c)2.
2. The minimum monthly maintenance needs allowance in a year may not exceed $1,500 increased by the same percentage as the percentage increase in the consumer price index between September 1988 and September of the year before the year involved.
49.455(4)(c)3.
3. In making the calculation under
subd. 1. a., when the poverty line is revised the department shall use the revised amount starting on the first day of the 2nd calendar quarter beginning after the date of publication of the revision.
49.455(4)(d)
(d) The excess shelter allowance equals the amount by which 30% of the amount determined under
par. (c) 1. a. is exceeded by the sum of the following:
49.455(4)(d)1.
1. The community spouse's expenses for rent or mortgage principal and interest, taxes and insurance for his or her principal residence and, if the community spouse lives in a condominium or cooperative, any required maintenance charge.
49.455(4)(d)2.
2. The standard utility allowance established under
7 USC 2014 (e), except that if the community spouse lives in a condominium or cooperative for which the maintenance charge includes utility expenses, the standard utility allowance under
7 USC 2014 (e) is reduced by the amount of the utility expenses included in the maintenance charge.
49.455(5)
(5) Rules for treatment of resources. 49.455(5)(a)1.1. The department shall determine the total value of the ownership interest of the institutionalized spouse plus the ownership interest of the community spouse in resources as of the beginning of the first continuous period of institutionalization beginning after September 29, 1989. The spousal share of resources equals one-half of that total value.
49.455(5)(a)2.
2. At the beginning of the first continuous period of institutionalization beginning after September 29, 1989, upon the request of an institutionalized spouse or a community spouse and the receipt of necessary documentation, the department shall assess and document the total value of resources under
subd. 1. and shall provide a copy of the assessment and documentation to each spouse and retain a copy for departmental use. If the request is not part of an application for medical assistance, the department may charge a fee not exceeding the reasonable expenses of providing and documenting the assessment. When the department provides a copy of an assessment, it shall provide notice that a spouse has the right to a fair hearing under
sub. (8) after an application for medical assistance is filed.
49.455(5)(b)
(b) Notwithstanding
ch. 766, in determining the resources of an institutionalized spouse at the time of application for medical assistance, the amount of resources considered to be available to the institutionalized spouse equals the value of all of the resources held by either or both spouses minus the greatest of the amounts determined under
sub. (6) (b) 1. to
4.
49.455(5)(c)
(c) The amount of resources determined under
par. (b) to be available for the cost of care does not cause an institutionalized spouse to be ineligible for medical assistance, if any of the following applies:
49.455(5)(c)1.
1. The institutionalized spouse has assigned to the state any rights to support from the community spouse.
49.455(5)(c)2.
2. The institutionalized spouse lacks the ability to execute an assignment under
subd. 1. due to a physical or mental impairment but the state has the right to bring a support proceeding against the community spouse without an assignment.
49.455(5)(c)3.
3. The department determines that denial of eligibility would work an undue hardship.
49.455(5)(d)
(d) During a continuous period of institutionalization, after an institutionalized spouse is determined to be eligible for medical assistance, no resources of the community spouse are considered to be available to the institutionalized spouse.
49.455(6)
(6) Permitting transfer of resources to community spouse. 49.455(6)(a)(a) Notwithstanding
s. 49.453 (2), an institutionalized spouse may transfer an amount of resources equal to the community spouse resource allowance determined under
par. (b) to, or for the sole benefit of, the community spouse without becoming ineligible for medical assistance for the period of ineligibility under
s. 49.453 (3) as a result of the transfer. The institutionalized spouse shall make the transfer as soon as practicable after the initial determination of eligibility for medical assistance, taking into account the amount of time that is necessary to obtain a court order under
par. (c).
49.455(6)(b)
(b) The community spouse resource allowance equals the amount by which the amount of resources otherwise available to the community spouse is exceeded by the greatest of the following:
