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, a cooperative, or an unincorporated cooperative association, 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, a cooperative, or an unincorporated cooperative association 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:
49.455(6)(b)1.
1. In any year, $12,000 increased by the same percentage as the percentage increase in the consumer price index between September 1988 and September of the year before the calendar year involved.
49.455(6)(b)2.b.
b. In any year, $60,000 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(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
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, 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.
