2010 Wisconsin Code
Chapter 49. Public assistance and children and family services.
49.496 Recovery of correct medical assistance payments.

49.496

49.496 Recovery of correct medical assistance payments.

49.496(1)

(1) Definitions. In this section:

49.496(1)(a)

(a) "Disabled" has the meaning given in s. 49.468 (1) (a) 1.

49.496(1)(b)

(b) "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.

49.496(1)(c)

(c) "Nursing home" has the meaning given in s. 50.01 (3).

49.496(1)(d)

(d) "Recipient" means a person who receives or received medical assistance.

49.496(2)

(2) Liens on the homes of nursing home residents and inpatients at hospitals.

49.496(2)(a)

(a) Except as provided in par. (b), the department may obtain a lien on a recipient's home if the recipient resides in a nursing home, or if the recipient resides in a hospital and is required to contribute to the cost of care, and the recipient cannot reasonably be expected to be discharged from the nursing home or hospital and return home. The lien is for the amount of medical assistance paid on behalf of the recipient that is recoverable under sub. (3) (a).

49.496(2)(b)

(b) The department may not obtain a lien under this subsection if any of the following persons lawfully reside in the home:

49.496(2)(b)1.

1. The recipient's spouse.

49.496(2)(b)2.

2. The recipient's child who is under age 21 or is disabled.

49.496(2)(b)3.

3. The recipient's sibling who has an ownership interest in the home and who has lived in the home continuously beginning at least 12 months before the recipient was admitted to the nursing home or hospital.

49.496(2)(c)

(c) Before obtaining a lien on a recipient's home under this subsection, the department shall do all of the following:

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)1.

1. A spouse.

49.496(2)(f)2.

2. A child who is under age 21 or disabled.

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)

(3) Recovery from estates.

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, subject to the exclusion of any amounts under the Long-Term Care Partnership Program established under s. 49.45 (31), 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.a.

a. Home-based or community-based services under 42 USC 1396d (a) (7) and (8) and under any waiver granted under 42 USC 1396n (c) (4) (B) or 42 USC 1396u.

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)(a)2.d.

d. Personal care services under s. 49.46 (2) (b) 6. j.

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)2.

2. Household furniture, furnishings and appliances.

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)

(c)

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)(d)1.

1. A spouse.

49.496(3)(d)2.

2. A child who is under age 21 or disabled.

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.

49.496(4)(a)

(a) 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. Except as provided in par. (b), 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 paragraph only to pay costs incurred under this paragraph and, if any amount remains, to pay for improvements to functions required under s. 49.78 (2). 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 Medical Assistance program.

49.496(4)(b)

(b) The department shall credit to the appropriation account under s. 20.435 (4) (im) any amount that the department would otherwise pay under par. (a) to a county department under s. 46.215 for any recovery collected by a department employee or officer, or by a county employee or officer under the management of the department.

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) (a) 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)

(6) Applicability.

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) Installment 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 - ANNOT.

History: 1991 a. 39, 269; 1993 a. 301, 437, 491; 1995 a. 27; 1997 a. 27; 1999 a. 9; 2003 a. 33; 2007 a. 20; 2009 a. 15.

49.496 - ANNOT.

Preserving the Homestead of the Small Estate: Wisconsin's Medical Recovery Law. Gilbert. Wis. Law. July 1992.