49.455(6)(c)
(c) If a court has entered a support order against a community spouse,
s. 49.453 does not apply to resources transferred under the order for the support of the community spouse or a family member.
49.455(7)
(7) Notice. The department shall notify both spouses upon a determination of medical assistance eligibility of an institutionalized spouse, or shall notify the spouse making the request upon a request by either an institutionalized spouse or a community spouse, of all of the following:
49.455(7)(a)
(a) The amount of the community spouse monthly income allowance calculated under
sub. (4) (b).
49.455(7)(c)
(c) The method for computing the amount of the community spouse resource allowance under
sub. (6) (b).
49.455(7)(d)
(d) The spouse's right to a fair hearing under
sub. (8) concerning ownership or availability of income or resources and the determination of the community spouse monthly income or resource allowance.
49.455(8)(a)(a) An institutionalized spouse or a community spouse is entitled to a departmental fair hearing concerning any of the following:
49.455(8)(a)2.
2. The determination of the amount of monthly income otherwise available to the community spouse used in the calculation under
sub. (4) (b).
49.455(8)(a)3.
3. After an application for medical assistance benefits is filed, the computation of the spousal share of resources under
sub. (5) (a) 1.
49.455(8)(b)
(b) If the institutionalized spouse has made an application for medical assistance, and a fair hearing is requested under
par. (a) concerning the determination of community spouse resource allowance, the department shall hold the hearing within 30 days after the request.
49.455(8)(c)
(c) If either spouse establishes at a fair hearing that, due to exceptional circumstances resulting in financial duress, the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance determined under
sub. (4) (c), the department shall determine an amount adequate to provide for the community spouse's needs and use that amount in place of the minimum monthly maintenance needs allowance in determining the community spouse monthly income allowance under
sub. (4) (b).
49.455(8)(d)
(d) If either spouse establishes at a fair hearing that the community spouse resource allowance determined under
sub. (6) (b) without a fair hearing does not generate enough income to raise the community spouse's income to the minimum monthly maintenance needs allowance under
sub. (4) (c), the department shall establish an amount to be used under
sub. (6) (b) 3. that results in a community spouse resource allowance that generates enough income to raise the community spouse's income to the minimum monthly maintenance needs allowance under
sub. (4) (c). Except in exceptional cases which would result in financial duress for the community spouse, the department may not establish an amount to be used under
sub. (6) (b) 3. unless the institutionalized spouse makes available to the community spouse the maximum monthly income allowance permitted under
sub. (4) (b) or, if the institutionalized spouse does not have sufficient income to make available to the community spouse the maximum monthly income allowance permitted under
sub. (4) (b), unless the institutionalized spouse makes all of his or her income, except for an amount equal to the sum of the personal needs allowance under
sub. (4) (a) 1. and any family allowances under
sub. (4) (a) 3. paid by the institutionalized spouse and the amount incurred as expenses for medical or remedial care for the institutionalized spouse under
sub. (4) (a) 4., available to the community spouse as a community spouse monthly income allowance under
sub. (4) (b).
49.455 Cross-reference
Cross-reference: See also ch.
DHS 103, Wis. adm. code.
49.455 Annotation
An ineligible spouse's IRA is excluded in determining whether the applying spouse is eligible for medical assistance. Keip v. DHFS, 2000 WI App 13,
232 Wis. 2d 380,
606 N.W.2d 543,
99-0193.
49.455 Annotation
Sub. (2) applies in determining eligibility for medical assistance and the required contribution to an institutionalized person's care. Sub. (3) (a) declares that the income of a community spouse is not available to the institutionalized spouse, when, with specific exceptions, a community spouse's income is paid solely to the spouse. In general s. 49.90 (1) (a) 1. obligates a spouse to support a dependent spouse who is unable to financially care for him or herself while residing in an institution, but must give way to the more specific terms of this section. Chippewa County Department of Human Services v. Bush, 2007 WI App 184,
305 Wis. 2d 181,
738 N.W.2d 562,
05-1113.
49.455 Annotation
Sub. (8) (d) does not conflict with federal law. Federal law does not require an institutionalized spouse's income-producing assets to be shifted to the community spouse's minimum monthly maintenance needs allowance before his or her income is shifted to the community spouse. DHFS v. Blumer,
534 U.S. 473,
151 L. Ed 2d 935 (2002).
49.455 Annotation
Medical Assistance & Divestment. Canellos. Wis. Law. Aug. 1991.
49.455 Annotation
Wisconsin Department of Health and Family Services v. Blumer: A "Case" Study in Pragmatism and the Expansion of Judicial Deference to Agency Interpretations. Kindstrand. 2002 WLR 1467.
49.46
49.46
Medical assistance; recipients of social security aids. 49.46(1)(a)(a) The following shall receive medical assistance under this section:
49.46(1)(a)1.
1. Notwithstanding
s. 49.19 (20), any individual who, without regard to the individual's resources, would qualify for a grant of aid to families with dependent children under
s. 49.19.
49.46(1)(a)1g.
1g. Notwithstanding
s. 49.19 (20), any individual who, without regard to the individual's resources, would qualify for a grant of aid to families with dependent children but who would not receive the aid solely because of the application of
s. 49.19 (11) (a) 7.
49.46(1)(a)1m.
1m. Any pregnant woman whose income does not exceed the standard of need under
s. 49.19 (11) and whose pregnancy is medically verified. Eligibility continues to the last day of the month in which the 60th day after the last day of the pregnancy falls.
49.46(1)(a)5.
5. Any child in an adoption assistance, foster care, treatment foster care, or subsidized guardianship placement under
ch. 48 or
938, as determined by the department.
Effective date note
NOTE: Subd. 5. is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
5. Any child in an adoption assistance, foster care, or subsidized guardianship placement under ch. 48 or 938, as determined by the department.
49.46(1)(a)6.
6. Any person not described in
pars. (c) to
(e) who, without regard to the individual's resources, would be considered, under federal law, to be receiving aid to families with dependent children for the purpose of determining eligibility for medical assistance.
49.46(1)(a)6m.
6m. Any person not described in
pars. (c) to
(e) who is considered, under federal law, to be receiving supplemental security income for the purpose of determining eligibility for medical assistance.
49.46(1)(a)9.
9. Any pregnant woman not described under
subd. 1.,
1g., or
1m. whose family income does not exceed 133% of the poverty line for a family the size of the woman's family.
49.46(1)(a)10.
10. Any child not described under
subd. 1. or
1g. who is under 6 years of age and whose family income does not exceed 133% of the poverty line for a family the size of the child's family.
49.46(1)(a)11.
11. If a waiver under
s. 49.665 is granted and in effect, any child not described under
subd. 1. or
1g. who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100% of the poverty line for a family the size of the child's family. If a waiver under
s. 49.665 is not granted or in effect, any child not described in
subd. 1. or
1g. who was born after September 30,1983, who has attained the age of 6 but has not attained the age of 19 and whose family income does not exceed 100% of the poverty line for a family the size of the child's family.
49.46(1)(a)12.
12. Any child not described under
subd. 1. or
1g. who is under 19 years of age and whose income does not exceed the standard of need under
s. 49.19 (11).
49.46(1)(a)13.
13. Any child who is under one year of age, whose mother was determined to be eligible under
subd. 9. and who lives with his or her mother.
49.46(1)(a)14.
14. Any person who would meet the financial and other eligibility requirements for home or community-based services under
s. 46.27 (11),
46.277, or
46.2785 but for the fact that the person engages in substantial gainful activity under
42 USC 1382c (a) (3), if a waiver under
s. 49.45 (38) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under
s. 46.27 (11),
46.277, or
46.2785.
49.46(1)(a)14m.
14m. Any person who would meet the financial and other eligibility requirements for home or community-based services under the family care benefit but for the fact that the person engages in substantial gainful activity under
42 USC 1382c (a) (3), if a waiver under
s. 46.281 (1d) is in effect or federal law permits federal financial participation for medical assistance coverage of the person and if funding is available for the person under the family care benefit.
49.46(1)(a)15.
15. Any individual who is infected with tuberculosis and meets the income and resource eligibility requirements for the federal Supplemental Security Income program under
42 USC 1381 to
1383d.
49.46(1)(a)16.
16. Any child who is living with a relative who is eligible to receive payments under
s. 48.57 (3m) or
(3n) with respect to that child, if the department determines that no other insurance is available to the child.
49.46(1)(am)1.1. If the change requested under
subd. 2. in the approved state plan for services under
42 USC 1396 is approved by the federal department of health and human services, the department shall disregard income from the following individuals, in an amount sufficient for the individual to become eligible for medical assistance under this section:
49.46(1)(am)1.a.
a. A pregnant woman whose family income, before any income is disregarded under this paragraph, does not exceed, in state fiscal year 1994-95, 155% of the poverty line for a family the size of the woman's family; and, in each state fiscal year after the 1994-95 state fiscal year, 185% of the poverty line for a family the size of the woman's family.
49.46(1)(am)1.b.
b. A child who is under 6 years of age and whose family income, before any income is disregarded under this paragraph, does not exceed, in state fiscal year 1994-95, 155% of the poverty line for a family the size of the child's family; and, in each state fiscal year after the 1994-95 state fiscal year, 185% of the poverty line for a family the size of the child's family.
49.46(1)(am)1.c.
c. A child who is under one year of age, whose mother was determined to be eligible under
subd. 1. a. and who lives with his or her mother.
49.46(1)(am)2.
2. The department shall request a change in the approved state plan for services under
42 USC 1396 to allow, pursuant to the authority granted under
42 USC 1396a (r) (2), the use of federal matching funds to provide medical assistance coverage to individuals under
subd. 1., beginning on July 1, 1994.
49.46(1)(b)
(b) Any person shall be considered a recipient of aid for 3 months prior to the month of application if the proper agency determines eligibility existed during such prior month.
49.46(1)(c)
(c) Except as provided under
par. (co), a family that becomes ineligible for aid to families with dependent children under
s. 49.19 because of increased income from employment or increased hours of employment or because of the expiration of the time during which the disregards under
s. 49.19 (5) (a) 4. or
4m. or
(am) apply shall receive medical assistance for:
49.46(1)(c)1.
1. Six calendar months following the month in which the family becomes ineligible for aid to families with dependent children if all of the following apply:
49.46(1)(c)1.a.
a. The family is eligible for aid to families with dependent children for at least 3 of the 6 months immediately preceding the month in which the family becomes ineligible.
49.46(1)(c)1.b.
b. The family continues to include a child who is, or would be if needy, a dependent child under
s. 49.19.
49.46(1)(c)1.c.
c. The family complies with reporting requirements established by the department by rule.
49.46(1)(c)2.
2. Six calendar months following the 6 months under
subd. 1. if all of the following apply:
49.46(1)(c)2.a.
a. The family chooses to continue to receive medical assistance.
49.46(1)(c)2.b.
b. The family continues to include a child who is, or would be if needy, a dependent child under
s. 49.19.
49.46(1)(c)2.c.
c. The family complies with reporting requirements established by the department by rule.
49.46(1)(c)2.d.
d. The caretaker relative has earnings in each month of the period unless the caretaker lacks earnings because of illness, involuntary loss of employment or other good cause as determined by the department.
49.46(1)(c)2.e.
e. The family's average gross monthly earnings, less the cost of child care necessary for the employment of the caretaker relative, during the immediately preceding 3-month period do not exceed 185% of the poverty line for a family the size of the family.
49.46(1)(cg)
(cg) Medical assistance shall be provided to a dependent child, a relative with whom the child is living or the spouse of the relative, if the spouse meets the requirements of
s. 49.19 (1) (c) 2. a. or
b., for 4 calendar months beginning with the month in which the child, relative or spouse is ineligible for aid to families with dependent children because of the collection or increased collection of maintenance or support, if the child, relative or spouse received aid to families with dependent children in 3 or more of the 6 months immediately preceding the month in which that ineligibility begins.
49.46(1)(co)1.1. Except as provided under
subd. 2., medical assistance shall be provided to a family for 12 consecutive calendar months following the month in which the family becomes ineligible for aid to families with dependent children because of increased income from employment, because the family no longer receives the earned income disregard under
s. 49.19 (5) (a) 4. or
4m. or
(am) due to the expiration of the time limit during which the disregards are applied or because of the application of the monthly employment time eligibility limitation under
45 CFR 233.100 (a) (1) (i).
49.46(1)(co)2.
2. If a waiver under
subd. 3. is granted, the department may select individuals to receive medical assistance benefits as provided under
par. (c), rather than under
subd. 1., as a control group for part or all of the period during which the waiver is in effect.
49.46(1)(co)3.
3. The department shall request a waiver from the secretary of the federal department of health and human services to permit the extension of medical assistance benefits under
subds. 1. and
2. Subdivision 1. does not apply unless a federal waiver is in effect. If a waiver is received, the department shall implement
subds. 1. and
2. no later than the first day of the 6th month beginning after the waiver is approved.
49.46(1)(d)1.
1. Children who are placed in licensed foster homes or licensed treatment foster homes by the department and who would be eligible for payment of aid to families with dependent children in foster homes or treatment foster homes except that their placement is not made by a county department under
s. 46.215,
46.22 or
46.23 will be considered as recipients of aid to families with dependent children.
Effective date note
NOTE: Subd. 1. is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
1. Children who are placed in licensed foster homes by the department and who would be eligible for payment of aid to families with dependent children in foster homes except that their placement is not made by a county department under s. 46.215, 46.22, or 46.23 will be considered as recipients of aid to families with dependent children.
49.46(1)(d)2.
2. Any accommodated person or any patient in a public medical institution shall be considered a recipient for purposes of this section if such person or patient would have inadequate means to meet his or her need for care and services if living in his or her usual living arrangement.
49.46(1)(d)3.
3. Any child adopted under
s. 48.48 (12) shall be considered a recipient for any medical condition which exists at the time of the adoption or develops subsequent to the adoption.
49.46(1)(d)4.
4. A child who meets the conditions under
42 USC 1396a (e) (3) shall be considered a recipient of benefits under
s. 49.77 or federal Title XVI.
49.46(1)(e)
(e) If an application under
s. 49.47 (3) shows that the individual meets the income limits under
s. 49.19 or meets the income and resource requirements under federal Title XVI or
s. 49.77, or that the individual is an essential person, an accommodated person, or a patient in a public medical institution, the individual shall be granted the benefits enumerated under
sub. (2) whether or not the individual requests or receives a grant of any of such aids.
49.46(1)(j)
(j) An individual determined to be eligible for benefits under
par. (a) 9. remains eligible for benefits under
par. (a) 9. for the balance of the pregnancy and to the last day of the month in which the 60th day after the last day of the pregnancy falls without regard to any change in the individual's family income.
49.46(1)(k)1.1. If a child eligible for benefits under
par. (a) 10. is receiving inpatient services covered under
sub. (2) on the day before the birthday on which the child attains the age of 6 and, but for attaining that age, the child would remain eligible for benefits under
par. (a) 10., the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.
49.46(1)(k)2.
2. If a child eligible for benefits under
par. (a) 11. is receiving inpatient services covered under
sub. (2) on the day before the birthday on which the child attains the age of 19 and, but for attaining that age, the child would remain eligible for benefits under
par. (a) 11., the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.
49.46(1)(L)
(L) For the purposes of
par. (a) 9. to
12., "income" includes income that would be used in determining eligibility for aid to families with dependent children under
s. 49.19, except to the extent that that determination is inconsistent with
42 USC 1396a (a)
17., and excludes income that would be excluded in determining eligibility for aid to families with dependent children under
s. 49.19. For the purposes of
par. (am), "income" shall be determined in accordance with the approved state plan for services under
42 USC 1396.
49.46(1)(m)1.1. Except as provided in
subd. 2., any individual who is otherwise eligible under this subsection and who is eligible for enrollment in a group health plan shall, as a condition of eligibility for medical assistance and if the department determines it is cost-effective to do so, apply for enrollment in the group health plan, except that, for a minor, the parent of the minor shall apply on the minor's behalf.
49.46(1)(m)2.
2. If a parent of a minor fails to enroll the minor in a group health plan in accordance with
subd. 1., the failure does not affect the minor's eligibility under this subsection.
49.46(1m)
(1m) Pilot project for working recipients of supplemental security income or social security disability income. The department shall request that the secretary of the federal department of health and human services and the commissioner of the federal social security administration waive the income and asset requirements for recipients of benefits under federal Title II or XVI to allow the department to conduct a pilot project to allow those recipients to work without losing eligibility for benefits under federal Title II or XVI or for medical assistance or medicare, as defined in
s. 49.45 (3) (L) 1. b. If the request is approved, the department may implement the program and may require participants in the program to pay, on a sliding scale, a copayment for the cost of the program.
49.46(1p)
(1p) Demonstration project for persons with HIV. The department shall request a waiver from the secretary of the federal department of health and human services to allow the department to provide under this section coverage of services specified under
sub. (2) for persons who have HIV infection, as defined in
s. 252.01 (2). If a waiver is granted and in effect, the department shall provide coverage for the services specified under
sub. (2) for persons who qualify under the terms of the waiver.
