49.845
49.845
Fraud investigation and error reduction. 49.845(1)(1)
Fraud investigation. From the appropriations under
s. 20.435 (4) (bn),
(kz),
(L), and
(nn), the department of health services shall establish a program to investigate suspected fraudulent activity on the part of recipients of medical assistance under
subch. IV, food stamp benefits under the food stamp program under
7 USC 2011 to
2036, supplemental security income payments under
s. 49.77, payments for the support of children of supplemental security income recipients under
s. 49.775, and health care benefits under the Badger Care health care program under
s. 49.665 and, if the department of children and families contracts with the department of health services under
sub. (4), on the part of recipients of aid to families with dependent children under
s. 49.19 and participants in the Wisconsin Works program under
ss. 49.141 to
49.161. The activities of the department of health services under this subsection may include comparisons of information provided to the department by an applicant and information provided by the applicant to other federal, state, and local agencies, development of an advisory welfare investigation prosecution standard, and provision of funds to county departments under
ss. 46.215,
46.22, and
46.23 and to Wisconsin Works agencies to encourage activities to detect fraud. The department of health services shall cooperate with district attorneys regarding fraud prosecutions.
49.845(2)
(2) State error reduction activities. The department of health services shall conduct activities to reduce payment errors in the Medical Assistance program under
subch. IV, the food stamp program under
7 USC 2011 to
2036, the supplemental security income payments program under
s. 49.77, the program providing payments for the support of children of supplemental security income recipients under
s. 49.775, and the Badger Care health care program under
s. 49.665 and, if the department of children and families contracts with the department of health services under
sub. (4), in Wisconsin Works under
ss. 49.141 to
49.161.
49.845(3)
(3) Wisconsin Works agency error reduction. If the department of children and families contracts with the department of health services under
sub. (4), the department of health services shall provide funds from the appropriation under
s. 20.435 (4) (kz) to Wisconsin Works agencies to offset the administrative costs of reducing payment errors in Wisconsin Works under
ss. 49.141 to
49.161.
49.845(4)(a)1.1. Notwithstanding
s. 49.197 (1m) and
(3), the department of children and families may contract with the department of health services to investigate suspected fraudulent activity on the part of recipients of aid to families with dependent children under
s. 49.19 and participants in Wisconsin Works under
ss. 49.141 to
49.161 and to conduct activities to reduce payment errors in Wisconsin Works under
ss. 49.141 to
49.161, as provided in this section. If any employee of the department of health services reasonably suspects that fraudulent activity as described in this subdivision has occurred or is occurring, the employee shall immediately report the facts and circumstances contributing to that suspicion to the employee's immediate supervisor.
49.845(4)(a)2.
2. An immediate supervisor who receives a report under
subd. 1. shall immediately evaluate the report to determine whether there is reason to suspect that the fraudulent activity has occurred or is occurring. If the immediate supervisor determines that there is reason to suspect that the fraudulent activity has occurred or is occurring, the immediate supervisor shall immediately report the facts and circumstances contributing to that suspicion to the sheriff and to the unit of the department of health services that is responsible for investigating suspected fraudulent activity as described in
subd. 1.
49.845(4)(a)3.
3. Except as provided in
subd. 2., an immediate supervisor who receives a report under
subd. 1. shall keep the identity of the reporter confidential. A sheriff or unit of the department of health services that receives a report under
subd. 2. shall keep the identity of the employee reporting under
subd. 1. and the immediate supervisor reporting under
subd. 2. confidential until the sheriff or unit determines that the report merits further investigation. If the sheriff or unit conducts a full investigation, the sheriff or unit shall keep the identity of that employee and immediate supervisor confidential if it is reasonably possible to do so. Any person who fails to report as required in
subd. 1. or
2. may be required to forfeit not more than $1,000.
49.845(4)(b)
(b) Any person participating in good faith in the making of a report under
par. (a) 1. or
2. or in initiating, participating in, or testifying in, any action or proceeding in which fraudulent activity as described in
par. (a) 1. is alleged shall have immunity from any liability, civil or criminal, that results by reason of the action. For the purpose of any proceeding, civil or criminal, the good faith of any person reporting under
par. (a) 1. or
2. shall be presumed.
49.845(4)(c)
(c) The department of health services or an employee of that department may not take disciplinary action against, or threaten to take disciplinary action against, any person because the person in good faith reported any information under
par. (a) 1. or
2. or initiated, participated in, or testified in, any action or proceeding in which fraudulent activity as described in
par. (a) 1. was alleged or because that department or employee believes that the person in good faith reported any information under
par. (a) 1. or
2. or initiated, participated in, or testified in, such an action or proceeding.
49.845(4)(d)
(d) Any person who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of
par. (c) may file a complaint with the department of workforce development under
s. 106.54 (9). If that department finds that a violation of
par. (c) has been committed, that department may take such action under
s. 111.39 as will effectuate the purpose of this section.
Section 111.322 (2m) applies to a disciplinary action arising in connection with any proceeding under this paragraph.
49.846
49.846
Jurisdiction of the department of justice. 49.846(1)
(1) In this section, "public assistance program" means any program administered by the department of health services or the department of children and families under this chapter under which the department administering the program provides services, benefits, or other assistance to individuals or families.
49.846(2)
(2) The department of justice or the district attorney may institute, manage, control, and direct, in the proper county, any prosecution for violation of criminal laws affecting a public assistance program, including laws in this chapter,
chs. 939 to
951 relating to Medical Assistance, Wisconsin Works, the food stamp program, or any other public assistance program, and laws affecting the health, safety, and welfare of public assistance program recipients. For this purpose the department of justice shall have and exercise all powers conferred upon district attorneys in such cases. If a prosecution under this section involves a person holding a license granted by the medical examining board or an interested affiliated credentialing board, the department of justice or district attorney shall notify the medical examining board or the interested affiliated credentialing board of the prosecution.
49.846 History
History: 1977 c. 418;
1985 a. 340;
1993 a. 107;
1995 a. 27;
2013 a. 226 ss.
32,
33,
47; Stats. 2013 s. 49.846.
49.847
49.847
Recovery of incorrect payments under certain public assistance programs. 49.847(1)
(1) Subject to
ss. 49.497 (1) and
49.793 (1), the department of health services, or a county, multicounty consortium, as defined in
s. 49.78 (1) (br), or elected governing body of a federally recognized American Indian tribe or band acting on behalf of the department, may recover benefits incorrectly paid under any of the programs administered by the department under this chapter.
49.847(2)
(2) The department, county, multicounty consortium, as defined in
s. 49.78 (1) (br), or elected governing body may recover an overpayment from a family or individual who continues to receive benefits under any program administered by the department under this chapter by reducing the family's or individual's benefit amount. Subject to
s. 49.793 (1), the department may by rule specify other methods for recovering incorrectly paid benefits.
49.847(3)(a)(a) Subject to
ss. 49.497 (2) and
49.793 (2), and except as provided in
par. (b), a county or elected governing body may retain a portion of an amount recovered under this section due to the efforts of an employee or officer of the county, tribe, or band, as provided by the department by rule.
49.847(3)(b)
(b) Any amount that Milwaukee County would otherwise be entitled to retain under
par. (a) for the recovery of an amount under this section due to the efforts of a department employee or officer, or a county employee or officer under the management of the department, shall be credited to the appropriation account under
s. 20.435 (4) (L).
49.847 Cross-reference
Cross-reference: See also ch.
DHS 2, Wis. adm. code.
49.849
49.849
Recovery of correct payments under certain public assistance programs. 49.849(1)(a)
(a) "Decedent" means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.
49.849(1)(b)
(b) "Department" means the department of health services.
49.849(1)(c)
(c) "Nonrecipient surviving spouse" means any person who was married to a recipient while the recipient was receiving public assistance and who survived the recipient.
49.849(1)(d)
(d) "Property of a decedent" means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.
49.849(1)(e)
(e) "Public assistance" means any services provided as a benefit under a long-term care program, as defined in
s. 49.496 (1) (bk), medical assistance under
subch. IV, long-term community support services funded under
s. 46.27 (7), or aid under
s. 49.68,
49.683, or
49.685.
49.849(1)(f)
(f) "Recipient" means a person who received public assistance.
49.849(2)(a)(a) Subject to
par. (b), the department may collect from the property of a decedent by affidavit under
sub. (3) (b) or by lien under
sub. (4) (a) an amount equal to the medical assistance that is recoverable under
s. 49.496 (3) (a), the long-term community support services under
s. 46.27 that is recoverable under
s. 46.27 (7g) (c) 1., or the aid under
s. 49.68,
49.683, or
49.685 that is recoverable under
s. 49.682 (2) (a), and that was paid on behalf of the decedent or the decedent's spouse, if all of the following conditions are satisfied:
49.849(2)(b)
(b) The department shall reduce the amount of its recovery under
par. (a) by up to the amount specified in
s. 861.33 (2) if necessary to allow the decedent's heirs or beneficiaries under the decedent's will to retain the following personal property of the decedent:
49.849(2)(b)4.
4. Other tangible personal property not used in trade, agriculture, or other business, not exceeding in value the amount specified in
s. 861.33 (1) (a) 4.
49.849(2)(c)
(c) There is a presumption, consistent with
s. 766.31, which may be rebutted, that all property of the deceased nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property of the deceased nonrecipient surviving spouse is subject to the department's claim under
par. (a).
49.849(3)
(3) Transmittal of property upon receipt of affidavit. 49.849(3)(a)(a) Any property of a decedent that is transferred by a person who has possession of the property at the time of the decedent's death is subject to the right of the department to recover the amounts specified in
sub. (2) (a). Upon request, the person who transferred the property shall provide to the department information about the property of the decedent that the person has transferred and information about the persons to whom the property was transferred.
49.849(3)(b)
(b) A person who possesses or receives property of a decedent shall transmit the property to the department, if the conditions in
sub. (2) (a) 1. and
2. are satisfied, upon receipt of an affidavit by a person designated by the secretary of health services to administer this section showing that the department paid on behalf of the decedent or the decedent's spouse recoverable benefits specified in
sub. (2) (a). Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.
49.849(3)(c)
(c) An affidavit under this subsection shall contain all of the following information:
49.849(3)(c)1.
1. That the department has a claim against the property that it intends to recover from the property.
49.849(3)(c)3.
3. That the person may have a right to an administrative hearing under
sub. (5m), which must be requested within 45 days after the department sent the affidavit, on the extent and fair market value of the recipient's interest in the property.
49.849(3)(c)5.
5. That the person may request from the department a hardship waiver, if the person co-owned the property with the decedent or is a beneficiary of the property.
49.849(4)
(4) Recovery against real property. 49.849(4)(a)(a) If the condition in
sub. (2) (a) 1. is satisfied, the department shall have a lien in the amount that it may recover under
sub. (2) (a) on any interest in any property of the decedent that is real property, including a home, as defined in
s. 49.496 (1) (b). The department may record the lien in the office of the register of deeds of the county in which the real property is located.
49.849(4)(b)
(b) The department may enforce a lien under
par. (a) by foreclosure in the same manner as a mortgage on real property, unless any of the following is alive:
49.849(4)(c)
(c) All of the following apply to a lien under
par. (a) that the department may not enforce because of
par. (b):
49.849(4)(c)1.
1. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.
49.849(4)(c)2.
2. The department shall release the lien if any of the following applies:
49.849(4)(c)2.a.
a. The recipient's surviving spouse or child who is under age 21 or disabled sells the property for fair market value, as described in
sub. (5c) (d), during the spouse's or child's lifetime.
49.849(4)(c)2.b.
b. The recipient's surviving spouse or child who is under age 21 or disabled transfers the property for less than fair market value, as described in
sub. (5c) (d), during the spouse's or child's lifetime, the transferee sells the property during the spouse's or child's lifetime and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.
49.849(4)(c)2.c.
c. The surviving owner or transferee of the property, who is not the recipient's surviving spouse or child who is under age 21 or disabled, sells the property during the lifetime of the recipient's surviving spouse or child who is under age 21 or disabled and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.
49.849(4m)
(4m) Allowable costs of sale of real property. 49.849(4m)(a)(a) Subject to
par. (b), if any property of a decedent that is real property has been sold after the death of the decedent, only the following reasonable expenses, if any, incurred in preserving or disposing of the real property may be deducted from the sale proceeds that the department may recover:
49.849(4m)(a)1.
1. Closing costs of sale, including reasonable attorney fees of the seller, the cost of title insurance, and recording costs.
49.849(4m)(a)5.
5. Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired.
49.849(4m)(b)
(b) Any expense under
par. (a) may be deducted from the sale proceeds only if it is documented and approved by the department and it was not incurred while any other individual was living on the property.
49.849(5)
(5) Other valid claims. If a person has a valid claim against property of the decedent that would have a higher priority under
s. 859.25 (1) if the property were subject to administration than the department would have under
s. 859.25 (1) (e) and the person demands payment in writing within one year of the date on which the property was transmitted to the department, the department shall pay to the person the value of the property collected under
sub. (3) or the amount of the claim, whichever is less. The department may authorize any person who possesses property of the decedent to honor higher priority claims with the decedent's property before transmitting property to the department.
49.849(5c)
(5c) Value of recipient's interest. For purposes of determining the value of the recipient's interest in property of the decedent, all of the following apply:
49.849(5c)(a)
(a) If the recipient held title to real property jointly with one or more persons other than his or her spouse, the recipient's interest in the real property is equal to the fractional interest that the recipient would have had in the property if the property had been held with the other owner or owners as tenants in common.
49.849(5c)(b)
(b) If the recipient held title to personal property jointly with one or more persons other than his or her spouse, the recipient's interest in the personal property is equal to either of the following:
49.849(5c)(b)1.
1. The percentage interest that was attributed to the recipient when his or her eligibility for public assistance was determined.
49.849(5c)(b)2.
2. If the percentage interest was not determined as provided in
subd. 1., the fractional interest that the recipient would have had in the property if the property had been held with the other co-owner or co-owners as tenants in common.
49.849(5c)(c)
(c) If the recipient held a life estate in real property, the recipient's interest is equal to the recipient's percentage of ownership in the property based on the recipient's age on the date of death and calculated using the fair market value of the property and life estate-remainderman tables used by the department to value life estates for purposes of determining eligibility for Medical Assistance.
49.849(5c)(d)
(d) A property's fair market value is the price that a willing buyer would pay a willing seller for the purchase of the property. The burden of proof for establishing a property's fair market value is on the surviving owners or beneficiaries, or their representatives. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.
49.849(5m)
(5m) Fair hearing. A person who has possession of any property of the decedent, or who receives an affidavit from the department under
sub. (3) (c) for transmittal of any property of the decedent, is entitled to and may, within 45 days after the affidavit was sent, request a departmental fair hearing on the value of the property and the extent of the recipient's interest in the property, if the property is not being transferred under
s. 867.03 or through formal or informal administration of the decedent's estate.
49.849(5r)
(5r) Action or order to enforce recovery. 49.849(5r)(a)(a) If, after receipt of an affidavit under
sub. (3), a person who possesses property of a decedent does not transmit the property to the department or timely request a hearing, the department may bring an action to enforce its right to collect amounts specified in
sub. (2) (a) from the property or may issue an order to compel transmittal of the property. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a class 3 proceeding, as defined in
s. 227.01 (3) (c), under
ch. 227 by filing a request for appeal, within 30 days after the date of the order, with the division of hearings and appeals created under
s. 15.103 (1). The date on which the division of hearings and appeals receives the request for appeal shall be the date of service. The only issue at the hearing shall be whether the person has transmitted the property to the department. The decision of the division of hearings and appeals shall be the final decision of the department.
49.849(5r)(b)
(b) If any person named in an order to compel transmittal of property issued under
par. (a) fails to transmit the property under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a certified copy of the order to the circuit court for any county. The sworn statement of the secretary shall be evidence of the department's right to collect amounts specified in
sub. (2) (a) from the property and of the person's failure to transmit the property to the department. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.
49.849(5r)(c)
(c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.
49.849(6)
(6) Payments from recovered amounts. 49.849(6)(a)(a) From the appropriation under
s. 20.435 (4) (im), with respect to funds collected by the department under
sub. (2) related to medical assistance paid on behalf of the decedent or the decedent's spouse, the department shall pay claims under
sub. (5), shall pay to the federal government from the amount recovered under this section and not paid out as claims under
sub. (5) an amount equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the amount recovered under this section for medical assistance benefits under
subch. IV.
49.849(6)(b)
(b) From the appropriation under
s. 20.435 (7) (im), with respect to funds collected by the department under
sub. (2) related to long-term community support services funded under
s. 46.27 (7) paid on behalf of the decedent or the decedent's spouse, the department shall pay claims under
sub. (5) and shall spend the remainder of the funds recovered under this section for long-term community support services funded under
s. 46.27 (7).
49.849(7)
(7) Rules for hardship waiver. The department shall promulgate rules establishing standards to determine 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 the application of this section in that case.
