46.27(7)(cg)
(cg) No county may use funds received under
par. (b) to pay for long-term community support services provided any person who resides in a nursing home, unless the department waives this restriction on use of funds and the services are provided in accordance with a discharge plan.
46.27(7)(cj)
(cj) No county may use funds received under
par. (b) to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under
par. (cm), one of the following applies:
46.27(7)(cj)1.
1. The services are provided to the person in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable independent entrance and exit and individual separate kitchen, bathroom, sleeping and living areas.
46.27(7)(cj)2.
2. The person suffers from Alzheimer's disease or related dementia and the services are provided to the person in a community-based residential facility that has a dementia care program.
46.27(7)(cj)3.
3. The services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:
46.27(7)(cj)3.b.
b. The county department or aging unit documents that the option of in-home services has been discussed with the person, thoroughly evaluated and found to be infeasible, as determined by the county department or aging unit in accordance with rules promulgated by the department of health services.
46.27(7)(cj)3.c.
c. The county department or aging unit determines that the community-based residential facility is the person's preferred place of residence or is the setting preferred by the person's guardian.
46.27(7)(cj)3.d.
d. The county department or aging unit determines that the community-based residential facility provides a quality environment and quality care services.
46.27(7)(cj)3.e.
e. The county department or aging unit determines that placement in the community-based residential facility is cost-effective compared to other options, including home care and nursing home care.
46.27(7)(ck)1.1. Subject to the approval of the department, a county may establish and implement more restrictive conditions than those imposed under
par. (cj) on the use of funds received under
par. (b) for the provision of services to a person in a community-based residential facility. A county that establishes more restrictive conditions under this subdivision shall include the conditions in its community options plan under
sub. (3) (cm).
46.27(7)(ck)2.
2. If the department determines that a county has engaged in a pattern of inappropriate use of funds received under
par. (b), the department may revoke its approval of the county's conditions established under
subd. 1., if any, and may prohibit the county from using funds received under
par. (b) to provide services under
par. (cj) 3.
46.27(7)(cm)1.1. Beginning on January 1, 1996, no county, private nonprofit agency or aging unit may use funds received under
par. (b) to provide services in any community-based residential facility that has more than 20 beds, unless one of the following applies:
46.27(7)(cm)1.a.
a. The department approves the provision of services in a community-based residential facility that is licensed on July 29, 1995, and that meets standards established under
subd. 2.
46.27(7)(cm)1.b.
b. The department approves the provision of services in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable entrance and exit and individual separate kitchen, bathroom, sleeping and living areas, to individuals who are provided services under
sub. (5) (b) and are physically disabled or are at least 65 years of age.
46.27(7)(cm)1.c.
c. The department approves the provision of services in a community-based residential facility that is initially licensed after July 29, 1995, that is licensed for more than 20 beds and that meets standards established under
subd. 2.
46.27(7)(cm)2.
2. By January 1, 1996, the department shall establish standards for approvals made under
subd. 1. a., including whether the proposed use of funds for residents at the community-based residential facility in question adequately provides for all of the following:
46.27(7)(cm)2.c.
c. Cost effectiveness, in comparison with other feasible funding uses.
46.27(7)(cm)2.d.
d. Sufficient consideration of care for facility residents with dementia or related conditions.
46.27(7)(cm)3.
3. The department need not promulgate as rules under
ch. 227 the standards required to be established under
subd. 2.
46.27(7)(cm)4.
4. This paragraph does not apply to individuals who are receiving services under this section that are funded under
par. (b) and who are residing in community-based residential facilities with more than 8 beds on January 1, 1996.
46.27(7)(d)
(d) The department may release funds to counties acting jointly, if the counties sign a contract approved by the secretary that explains the plans for joint sponsorship.
46.27(7)(e)
(e) No county may use funds received under this section to purchase land or construct buildings.
46.27(7)(f)
(f) If the department determines that a county demonstrates a pattern of failure to serve clients whose cost of care significantly exceeds the average cost of care for long-term community support services provided under this section, the department may require that county to reserve a portion of funds allocated under this subsection for provision of service to those clients.
46.27(7)(fm)
(fm) The department shall, at the request of a county, carry forward up to 5 percent of the amount allocated under this subsection to the county for a calendar year if up to 5 percent of the amount so allocated has not been spent or encumbered by the county by December 31 of that year, for use by the county in the following calendar year, except that the amount carried forward shall be reduced by the amount of funds that the county has notified the department that the county wishes to place in a risk reserve under
par. (fr). The department may transfer funds within
s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph does not affect a county's base allocation under this subsection and shall lapse to the general fund unless expended within the calendar year to which the funds are carried forward. A county may not expend funds carried forward under this paragraph for administrative or staff costs, except administrative or staff costs that are associated with implementation of the waiver under
sub. (11) and approved by the department.
46.27(7)(fr)1.1. Notwithstanding
s. 46.036 (3) and
(5m), a county may place in a risk reserve funds that are allocated under
par. (am) or
(b) or
sub. (11) (c) 3. and are not expended or encumbered for services under this subsection or
sub. (11). The county shall notify the department of this decision and of the amount to be placed in the risk reserve. The county shall maintain the risk reserve in an interest-bearing escrow account with a financial institution, as defined in
s. 69.30 (1) (b), if the department has approved the terms of the escrow. All interest from the principal shall be reinvested in the escrow account.
46.27(7)(fr)2.
2. The annual amount of a county's expenditure for a risk reserve, as specified in
subd. 1., may not exceed 10 percent of the county's most recent allocation under
pars. (am) and
(b) and
sub. (11) (c) 3. or $750,000, whichever is less. The total amount of the risk reserve, including interest, may not exceed 15 percent of the county's most recent allocation under this subsection.
46.27(7)(fr)3.
3. A county may expend funds maintained in a risk reserve, as specified in
subd. 1., for any of the following purposes:
46.27(7)(fr)3.a.
a. To defray costs of long-term community support services under this section.
46.27(7)(fr)3.b.
b. To meet requirements under any contract that the county has with the department to operate a care management organization under
s. 46.284.
46.27(7)(fr)3.c.
c. If approved by a resolution of the county board of supervisors, to transfer funds to a long-term care district.
46.27(7)(fr)3.d.
d. If approved by the department, for administrative or staff costs under this section.
46.27(7)(fr)4.
4. A county that maintains a risk reserve, as specified in
subd. 1., shall annually, on a form prescribed by the department, submit to the department a record of the status of the risk reserve, including revenues and disbursements.
46.27(7)(g)
(g) The department may carry forward to the next state fiscal year funds allocated under this subsection and not encumbered by counties by December 31 or carried forward under
par. (fm). The department may transfer moneys within
s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph shall not affect a county's base allocation for the program. The department may allocate these transferred moneys during the next fiscal year to counties for planning and implementation of resource centers under
s. 46.283 or care management organizations under
s. 46.284 and for the improvement or expansion of long-term community support services for clients whose cost of care significantly exceeds the average cost of care provided under this section, including any of the following:
46.27(7)(g)1.
1. Specialized training for providers of services under this section.
46.27(7)(g)4.
4. Purchase of medical equipment or other specially adapted equipment.
46.27(7g)(a)1.
1. “Client" means a person who receives or received long-term community support services that are funded under
sub. (7).
46.27(7g)(a)1m.
1m. “Decedent" means a deceased client or a deceased nonclient surviving spouse, whichever is applicable.
46.27(7g)(a)3.
3. “Home" means property in which a person has an ownership interest consisting of the person's dwelling and the land used and operated in connection with the dwelling.
46.27(7g)(a)4.
4. “Nonclient surviving spouse" means any person who was married to a client while the client was receiving services for which the cost may be recovered under
par. (c) 1. and who survived the client.
46.27(7g)(a)5.
5. “Property of a decedent" means all real and personal property to which the client held any legal title or in which the client 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.
46.27(7g)(c)1.1. Except as provided in
subd. 4., the department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of long-term community support services funded under
sub. (7) paid on behalf of the client after the client attained 55 years of age, unless already recovered by the department under this subsection.
46.27(7g)(c)2.
2. The affidavit of a person designated by the secretary to administer this paragraph is evidence of the amount of the claim.
46.27(7g)(c)2m.a.a. Property that is subject to the department's claim under
subd. 1. in the estate of a client or in the estate of a nonclient surviving spouse is all property of a decedent that is included in the estate.
46.27(7g)(c)2m.b.
b. There is a presumption, consistent with
s. 766.31, which may be rebutted, that all property in the estate of the nonclient surviving spouse was marital property held with the client and that 100 percent of the property in the estate of the nonclient surviving spouse is subject to the department's claim under
subd. 1.
46.27(7g)(c)3.
3. The court shall reduce the amount of a claim under
subd. 1. by up to the amount specified in
s. 861.33 (2) if necessary to allow the decedent's heirs or the beneficiaries of the decedent's will to retain the following personal property:
46.27(7g)(c)3.a.
a. The decedent's wearing apparel and jewelry held for personal use.
46.27(7g)(c)3.c.
c. 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.
46.27(7g)(c)4.
4. A claim under
subd. 1. is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
46.27(7g)(c)5.a.a. If the department's claim is not allowable because of
subd. 4. and the estate includes an interest in real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in
subd. 1. 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).
46.27(7g)(c)5.b.
b. If the department's claim is not allowable because of
subd. 4., the estate includes an interest in real property, including 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 real property is assigned subject to a lien in favor of the department for the amount described in
subd. 1. 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.
46.27(7g)(c)6.
6. The department may not enforce a lien under
subd. 5. as long as any of the following survive the decedent:
46.27(7g)(c)6m.
6m. All of the following apply to a lien under
subd. 5. that the department may not enforce because of
subd. 6.:
46.27(7g)(c)6m.a.
a. 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.
46.27(7g)(c)7.
7. The department may enforce a lien under
subd. 5. by foreclosure in the same manner as a mortgage on real property.
46.27(7g)(d)
(d) The department may require the county department or aging unit selected to administer the program in each county to gather and provide the department with information needed to recover payment of long-term community support services under this subsection. The department shall pay to the county department or aging unit an amount equal to 5 percent of the recovery collected by the department relating to a beneficiary for whom the county department or aging unit made the last determination of eligibility for funding under
sub. (7). A county department or aging unit may use funds received under this paragraph only to pay costs incurred under this paragraph and shall remit the remainder, if any, to the department for deposit in the appropriation account under
s. 20.435 (4) (im). The department may withhold payments under this paragraph for failure to comply with the department's requirements under this paragraph. The department shall treat payments made under this paragraph as costs of administration of the program.
46.27(7g)(e)
(e) From the appropriation under
s. 20.435 (4) (im), the department shall pay the amount of the payments under
par. (d) and shall spend the remainder of the funds recovered under this subsection for long-term community support services funded under
sub. (7) (b).
46.27(7g)(f)1.1. The department may recover amounts under this subsection for the provision of long-term community support services paid on and after January 1, 1996.
46.27(7g)(f)2.
2. The department may file a claim under
par. (c) only with respect to a client who dies after February 15, 1996.
46.27(7g)(g)
(g) The department shall promulgate rules establishing standards for determining whether the application of this subsection would work an undue hardship in individual cases. If the department determines that the application of this subsection would work an undue hardship in a particular case, the department shall waive application of this subsection in that case.
46.27(7g)(h)
(h) The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.
46.27(7m)
(7m) Right to hearing. A person who is denied eligibility for services or whose services are reduced or terminated under this section may request a hearing from the department under
s. 227.44, except that lack of adequate funding or a denial under
sub. (6r) (a) may not serve as the basis for a request under this subsection.
46.27(8)
(8) County participation. Every county shall participate in and implement the program.
46.27(9)
(9) Pilot project allocating the cost of nursing home utilization increases to counties. 46.27(9)(a)(a) The department may select up to 5 counties that volunteer to participate in a pilot project under which they will receive certain funds allocated for long-term care. The department shall allocate a level of funds to these counties equal to the amount that would otherwise be paid under
s. 20.435 (4) (b),
(gm), or
(w) to nursing homes for providing care because of increased utilization of nursing home services, as estimated by the department. In estimating these levels, the department shall exclude any increased utilization of services provided by state centers for the developmentally disabled. The department shall calculate these amounts on a calendar year basis under
sub. (10).
46.27(9)(b)
(b) The department may only select counties to participate in this pilot project and receive these funds that have been part of the long-term support community options program since January 1, 1983. County participation in this pilot project shall be for periods beginning either January 1, 1984, or January 1, 1985.
46.27(9)(c)
(c) All long-term community support services provided under this pilot project in lieu of nursing home care shall be consistent with those services described in the participating county's community options plan under
sub. (4) (c) 1. and provided under
sub. (5) (b). Unless the department has contracted under
s. 46.284 (2) with an entity other than the county department, each county participating in the pilot project shall assess persons under
sub. (6).
46.27(10)(a)1.1. The department shall determine for each county participating in the pilot project under
sub. (9) a funding level of state medical assistance expenditures to be received by the county. This level shall equal the amount that the department determines would otherwise be paid under
s. 20.435 (4) (b),
(gm), or
(w) because of increased utilization of nursing home services, as estimated by the department.
46.27(10)(a)2.
2. The department shall transfer or credit to the participating county the amount calculated under
subd. 1. for 1984 or for the first 6 months of 1985, depending on the date the county begins participating in the pilot project. The county shall use these funds to provide long-term care to medical assistance recipients covered by its community options plan, either in the form of nursing home care financed under
par. (b) or in the form of long-term community support services. The county may use extra funds available under this paragraph after it provides this long-term care for other long-term community support services under its community options plan.
