49.496(2)(c)1.
1. Notify the recipient in writing of its determination that the recipient cannot reasonably be expected to be discharged from the nursing home or hospital, its intent to impose a lien on the recipient's home and the recipient's right to a hearing on whether the requirements for the imposition of a lien are satisfied.
49.496(2)(c)2.
2. Provide the recipient with a hearing if he or she requests one.
49.496(2)(d)
(d) The department shall obtain a lien under this subsection by recording a lien claim in the office of the register of deeds of the county in which the home is located.
49.496(2)(e)
(e) The department may not enforce a lien under this subsection while the recipient lives unless the recipient sells the home and does not have a living child who is under age 21 or disabled or a living spouse.
49.496(2)(f)
(f) The department may not enforce a lien under this subsection after the death of the recipient as long as any of the following survive the recipient:
49.496(2)(f)3.
3. A child of any age who resides in the home, if that child resided in the home for at least 24 months before the recipient was admitted to the nursing home or hospital and provided care to the recipient that delayed the recipient's admission to the nursing home or hospital.
49.496(2)(f)4.
4. A sibling who resides in the home, if the sibling resided in the home for at least 12 months before the recipient was admitted to the nursing home or hospital.
49.496(2)(g)
(g) The department may enforce a lien imposed under this subsection by foreclosure in the same manner as a mortgage on real property.
49.496(2)(h)
(h) The department shall file a release of a lien imposed under this subsection if the recipient is discharged from the nursing home or hospital and returns to live in the home.
49.496(3)(a)(a) Except as provided in
par. (b), the department shall file a claim against the estate of a recipient for all of the following unless already recovered by the department under this section:
49.496(3)(a)1.
1. The amount of medical assistance paid on behalf of the recipient while the recipient resided in a nursing home or while the recipient was an inpatient in a hospital and was required to contribute to the cost of care.
49.496(3)(a)2.
2. The following medical assistance services paid on behalf of the recipient after the recipient attained 55 years of age:
49.496(3)(a)2.b.
b. Related hospital services, as specified by the department by rule.
49.496(3)(a)2.c.
c. Related prescription drug services, as specified by the department by rule.
49.496(3)(ag)
(ag) The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.
49.496(3)(am)
(am) 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 heirs or the beneficiaries of the recipient's will to retain the following personal property:
49.496(3)(am)1.
1. The decedent's wearing apparel and jewelry held for personal use.
49.496(3)(am)3.
3. Other tangible personal property not used in trade, agriculture or other business, not to exceed in value the amount specified in
s. 861.33 (1) (a) 4.
49.496(3)(b)
(b) A claim under
par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
49.496(3)(c)1.1. If the department's claim is not allowable because of
par. (b) and the estate includes an interest in a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the home 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).
49.496(3)(c)2.
2. If the department's claim is not allowable because of
par. (b), the estate includes an interest in 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 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.
49.496(3)(d)
(d) The department may not enforce the lien under
par. (c) as long as any of the following survive the decedent:
49.496(3)(e)
(e) The department may enforce a lien under
par. (c) by foreclosure in the same manner as a mortgage on real property.
49.496(3)(f)
(f) The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.
49.496(4)
(4) Administration. The department may require a county department under
s. 46.215,
46.22 or
46.23 or the governing body of a federally recognized American Indian tribe administering medical assistance to gather and provide the department with information needed to recover medical assistance under this section. The department shall pay to a county department or tribal governing body an amount equal to 5% of the recovery collected by the department relating to a beneficiary for whom the county department or tribal governing body made the last determination of medical assistance eligibility. A county department or tribal governing body may use funds received under this subsection only to pay costs incurred under this subsection and, if any amount remains, to pay for improvements to functions required under
s. 49.33 (2). The department may withhold payments under this subsection for failure to comply with the department's requirements under this subsection. The department shall treat payments made under this subsection as costs of administration of the medical assistance program.
49.496(5)
(5) Use of funds. From the appropriation under
s. 20.435 (4) (im), the department shall pay the amount of the payments under
sub. (4) that is not paid from federal funds, shall pay to the federal government the amount of the funds recovered under this section equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the funds recovered under this section for medical assistance benefits under this subchapter.
49.496(6)(a)(a) The department may recover amounts under this section for medical assistance benefits paid on and after August 15, 1991.
49.496(6)(b)
(b) The department may file a claim under
sub. (3) only with respect to a recipient who dies after September 30, 1991.
49.496(6m)
(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.
49.496(7)
(7) Instalment payments. If a recovery under
sub. (3) does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.
49.496 Annotation
Recovery of benefits from the estate of a recipient's surviving spouse under sub. (3) (a) exceeds the authority granted by federal law. DHSS v. Estate of Budney,
197 Wis. 2d 949,
541 N.W.2d 245 (Ct. App. 1995).
49.496 Annotation
Preserving the Homestead of the Small Estate: Wisconsin's Medical Recovery Law. Gilbert. Wis. Law. July 1992.
49.497
49.497
Recovery of incorrect medical assistance payments. 49.497(1)(1) The department may recover any payment made incorrectly for benefits specified under
s. 49.46,
49.468 or
49.47 if the incorrect payment results from any misstatement or omission of fact by a person supplying information in an application for benefits under
s. 49.46,
49.468 or
49.47. The department may also recover if a medical assistance recipient or any other person responsible for giving information on the recipient's behalf fails to report the receipt of income or assets in an amount that would have affected the recipient's eligibility for benefits. The department's right of recovery is against any medical assistance recipient to whom or on whose behalf the incorrect payment was made. The extent of recovery is limited to the amount of the benefits incorrectly granted. The county department under
s. 46.215 or
46.22 or the governing body of a federally recognized American Indian tribe administering medical assistance shall begin recovery actions on behalf of the department according to rules promulgated by the department.
49.497(2)
(2) A county or governing body of a federally recognized American Indian tribe may retain 15% of benefits distributed under
s. 49.46,
49.468 or
49.47 that are recovered under
sub. (1) due to the efforts of an employee or officer of the county or tribe.
49.497(3)
(3) Cash assets of medical assistance recipients that exceed asset limitations shall be applied against the cost of medical assistance benefits provided.
49.497 Annotation
There is no statutory authority to order a mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M.
166 Wis. 2d 306,
479 N.W.2d 237 (Ct. App. 1991).
49.498
49.498
Requirements for skilled nursing facilities. 49.498(1)(a)
(a) "Active treatment for developmental disability" means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual's acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual's current optimal functional status. "Active treatment for developmental disability" does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.
49.498(1)(b)
(b) "Active treatment for mental illness" means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under
ch. 448 and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.
49.498(1)(c)
(c) "Developmental disability" means any of the following:
49.498(1)(c)1.
1. Significantly subaverage general intellectual functioning that is concurrent with an individual's deficits in adaptive behavior and that manifested during the individual's developmental period.
49.498(1)(c)2.
2. A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in
42 CFR 435.1009.
49.498(1)(e)
(e) "Managing employee" means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.
49.498(1)(k)
(k) "Psychopharmacologic drugs" means drugs that modify psychological functions and mental states.
49.498(1)(L)
(L) "Registered professional nurse" means a registered nurse who is licensed under
ch. 441 or in a party state, as defined in
s. 441.50 (2) (j).
49.498(1)(m)
(m) "Resident" means an individual who resides in a nursing facility.
49.498(2)
(2) Requirements relating to provision of services. 49.498(2)(a)1.1. A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.
49.498(2)(a)2.
2. A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:
49.498(2)(a)2.a.
a. Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.
49.498(2)(a)2.b.
b. Develop and implement appropriate plans of action to correct identified quality deficiencies.
49.498(2)(b)
(b) A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:
49.498(2)(b)1.
1. Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;
49.498(2)(b)2.
2. Is initially prepared, with participation to the extent practicable of the resident or the resident's family or legal counsel, by a team which includes the resident's attending physician and a registered professional nurse who has responsibility for the resident; and
49.498(2)(b)3.
3. Is periodically reviewed and revised by the team in
subd. 2. after the conduct of an assessment under
par. (c).
49.498(2)(c)1.1. A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident's functional capacity that:
49.498(2)(c)1.a.
a. Describes the resident's capability to perform daily life functions and significant impairments in the resident's functional capacity.
49.498(2)(c)1.b.
b. Is based on a uniform minimum data set of core elements and common definitions specified as required under
42 USC 1395i-3 (f) (6) (A).
49.498(2)(c)1.c.
c. Uses an instrument which shall be specified by the department by rule.
49.498(2)(c)2.
2. A registered professional nurse shall conduct or coordinate with the appropriate participation of health professionals, sign and certify the completion of an assessment under
subd. 1. Each individual who completes a portion of the assessment shall sign and certify as to the accuracy of that portion of the assessment.
49.498(2)(c)3.
3. No individual may wilfully and knowingly certify under
subd. 2. a material and false statement in an assessment.
49.498(2)(c)4.
4. No individual may wilfully and knowingly cause another individual to certify under
subd. 2. a material and false statement in an assessment.
49.498(2)(c)5.
5. If the department determines by survey of a nursing facility or otherwise that an individual has knowingly and wilfully certified a false assessment under
subd. 2., the department may require that individuals who are independent of the nursing facility and are approved by the department conduct and certify assessments under this paragraph.
49.498(2)(c)6.a.
a. Conduct an assessment under
subd. 1. no later than 4 days after the admission of an individual admitted after September 30, 1990.
49.498(2)(c)6.b.
b. Conduct all of the assessments under
subd. 1. for a resident of the nursing facility by October 1, 1991, for a resident who resides in the facility on that date; promptly after a significant change in a resident's physical or mental condition; and, for every resident, no less often than once every 12 months.
