Section 49.47. Medical assistance; medically indigent.

 

(1)   Purpose. Medical assistance as set forth herein shall be provided to persons over 65, if eligible under this section, all disabled children under 18, if eligible under this section, and persons who are blind or disabled, if eligible under this section.

(2)   Definitions. As used in this section, unless the context indicates otherwise:

(a) “Beneficiary" means a person eligible for, and a recipient of, medical assistance under this section.

(b) “Illness" means a bodily disorder, bodily injury, disease or mental disease. All illnesses existing simultaneously which are due to the same or related causes shall be considered “one illness." Successive periods of illness less than 6 months apart, which are due to the same or related causes, shall also be considered “one illness."

(3)   Application.

(a) At any time any resident of this state who believes himself or herself medically indigent and qualified for aid under this section may make application, on forms prescribed by the department. If eligibility is questionable by reason of the information contained on the application or is incomplete, further investigation shall be made to determine eligibility.

(b) The agency shall promptly review the application and shall issue a certificate to the individual showing eligibility when eligibility has been established.

(c) The department shall simplify applications for benefits for pregnant women and children under sub. (4) and shall make the simplified applications available in the offices of health care providers.

(4)   Eligibility.

(a) Any individual who meets the limitations on income and resources under pars. (b) to (c) and who complies with pars. (cm) and (cr) shall be eligible for medical assistance under this section if such individual is:

1. Under 21 years of age and resides in an intermediate care facility, skilled nursing facility, or inpatient psychiatric hospital. The department shall apply the definition of family income in s. 49.471 (1) (f) to make determinations of income under this subdivision.

3. 65 years of age or older.

4. Blind or totally and permanently disabled as defined under federal Title XVI.

(ag) Any individual whose income does not exceed the limits under par. (c) and who complies with par. (cm) is eligible for medical assistance under this section if the individual is one of the following:

1. Under the age of 18.

2. Pregnant and the woman's 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.

(am) An individual who does not meet the limitation on income in par. (c) is eligible for medical assistance under this section if the individual is one of the following:

1. A pregnant woman whose family income does not exceed 155 percent of the poverty line for a family the size of the woman's family, except that if a waiver under par. (j) or a change in the approved state plan under s. 49.46 (1) (am) 2. is in effect, the income limit is 185 percent of the poverty line for a family the size of the woman's family in each state fiscal year after the 1994-95 state fiscal year.

2. A child who is under 6 years of age and whose family income does not exceed 155 percent of the poverty line for a family the size of the child's family, except that if a waiver under par. (j) or a change in the approved state plan under s. 49.46 (1) (am) 2. is in effect, the income limit is 185 percent of the poverty line for a family the size of the child's family in each state fiscal year after the 1994-95 state fiscal year.

3. A child who is under one year of age, whose mother was determined to be eligible under subd. 1. and who lives with his or her mother.

(as) A person is eligible for benefits under this section if all of the following apply:

1. The person would meet the financial and other eligibility requirements for home or community-based services under s. 46.27 (11) , 46.277 , or 46.2785 or under the family care benefit if a waiver is in effect under s. 46.281 (1d) but for the fact that the person engages in substantial gainful activity under 42 USC 1382c (a) (3).

2. A waiver under s. 49.45 (38) is in effect or federal law authorizes federal financial participation for medical assistance coverage of the person.

3. Funding is available for the person under s. 46.27 (11) , 46.277 , or 46.2785 or under the family care benefit if a waiver is in effect under s. 46.281 (1d) .

(av)

1. In this paragraph, “ migrant worker" means any person who temporarily leaves a principal place of residence outside of this state and comes to this state for not more than 10 months in a year to accept seasonal employment in the planting, cultivating, raising, harvesting, handling, drying, packing, packaging, processing, freezing, grading or storing of any agricultural or horticultural commodity in its unmanufactured state. “Migrant worker" does not include any of the following:

a. A person who is employed only by a state resident if the resident or the resident's spouse is related to the person as the child, parent, grandchild, grandparent, brother, sister, aunt, uncle, niece, nephew, or the spouse of any such relative.

b. A student who is enrolled or, during the past 6 months has been enrolled, in any school, college or university unless the student is a member of a family or household which contains a migrant worker.

c. Any other person qualifying for an exemption under rules promulgated by the department.

2. The department shall request a waiver from the secretary of the federal department of health and human services to allow the application of subd. 3. The waiver shall also seek a waiver from those federal quality control standards under the medical assistance program that the department determines to be necessary in order to make the application of subd. 3. feasible. Subdivision 3. applies only while the waiver under this subdivision is in effect.

3. In determining the eligibility for a migrant worker and his or her dependents for medical assistance under this section, the department shall do all of the following:

a. Grant the migrant worker and his or her dependents eligibility for medical assistance in this state, if the migrant worker and his or her dependents have a valid medical assistance identification card issued in another state and the migrant worker completes a Wisconsin medical assistance application provided by the department. Eligibility under this subd. 3. a. continues for the period specified on the identification card issued in the other state. The department shall notify the other state that the migrant worker and his or her dependents are eligible for medical assistance in Wisconsin.

b. Determine medical assistance eligibility using an income-averaging method described in the waiver under subd. 2. , if the migrant worker and his or her dependents do not meet the income limitations under par. (c) using prospective budgeting.

(b) Eligibility exists if the applicant's property, subject to the exclusion of any amounts under the Long-Term Care Partnership Program established under s. 49.45 (31) , any amounts in an independence account, as defined in s. 49.472 (1) (c) , or any retirement assets that accrued from employment while the applicant was eligible for the community options program under s. 46.27 (11) , or any other Medical Assistance program, including deferred compensation or the value of retirement accounts in the Wisconsin Retirement System or under the federal Social Security Act, does not exceed the following:

1. Subject to par. (bc) , a home and the land used and operated in connection therewith or in lieu thereof a manufactured home or mobile home if the home, manufactured home, or mobile home is used as the person's or his or her family's place of abode.

2. Household and personal possessions.

2m. One or more motor vehicles as specified in this subdivision.

a. For persons who are eligible under par. (a) 1. , one vehicle is exempt from consideration as an asset. A 2nd vehicle is exempt from consideration as an asset only if the department determines that it is necessary for the purpose of employment or to obtain medical care. The equity value of any nonexempt vehicles owned by the applicant is an asset for the purposes of determining eligibility for medical assistance under this section.

b. For persons who are eligible under par. (a) 3. or 4. , motor vehicles are exempt from consideration as an asset to the same extent as provided under 42 USC 1381 to 1385 .

2r. For a person who is eligible under par. (a) 3. or 4. , the value of any burial space or agreement representing the purchase of a burial space held for the purpose of providing a place for the burial of the person or any member of his or her immediate family.

2w. For a person who is eligible under par. (a) 3. or 4. , life insurance with cash surrender values if the total face value of all life insurance policies, including riders and other attachments, is not more than $1,500.

3. For a person who is eligible under par. (a) 3. or 4. , funds set aside to meet the burial and related expenses of the person and his or her spouse in an amount not to exceed $1,500 each, minus the sum of the cash value of any life insurance excluded under subd. 2w. and the amount in any irrevocable burial trust under s. 445.125 (1) (a) .

3g. Liquid assets for a single person limited to:

a. In 1985, $1,600.

b. In 1986, $1,700.

c. In 1987, $1,800.

d. In 1988, $1,900.

e. After December 31, 1988, $2,000.

3m. Liquid assets for a family of 2, limited to:

a. In 1985, $2,400.

b. In 1986, $2,550.

c. In 1987, $2,700.

d. In 1988, $2,850.

e. In 1989, $3,000.

3r. Liquid assets limited to $300 for each legal dependent in addition to a family of 2.

4. Additional tangible personal property of reasonable value, considering the number of members in the family group, used in the production of income.

(bc)

1. Subject to subd. 2. , a person shall be ineligible under this section for medical assistance for nursing facility services or other long-term care services described in s. 49. 453 (2) if the equity in his or her home and the land used and operated in connection with the home exceeds $750,000. This subdivision does not apply if any of the following persons lawfully resides in the home:

a. The person's spouse.

b. The person's child who is under age 21 or who is disabled, as defined in s. 49.468 (1) (a) 1.

2. Subdivision 1. applies to all of the following:

a. At the time of application, to a person who applies for medical assistance for nursing facility services or other long-term care services described in s. 49.453 (2) after February 1, 2008.

b. At the time of the person's first recertification after February 1, 2008, to a person not specified in subd. 2. a. who applied for medical assistance for nursing facility services or other long-term care services described in s. 49.453 (2) on or after January 1, 2006, and who was eligible for medical assistance for those services on February 1, 2008.

(bm) For purposes of determining eligibility or benefits amount for a person described in par. (a) 3. or 4. who resides in a continuing care retirement community or a life care community, any entrance fee paid on admission to the community shall be considered a resource available to the person to the extent that all of the following apply:

1. The person has the ability to use the entrance fee, or the contract provides that the entrance fee may be used, to pay for care if the person's other resources or income are insufficient to pay for the care.

2. The person is eligible for a refund of any remaining entrance fee when the person dies or terminates the continuing care retirement community or life care community contract and leaves the community.

3. The entrance fee does not confer an ownership interest in the continuing care retirement community or life care community.

(c)

1. Except as provided in par. (am) , eligibility exists if income does not exceed 133 1/3 percent of the maximum aid to families with dependent children payment under s. 49.19 (11) for the applicant's family size or the combined benefit amount available under supplemental security income under 42 USC 1381 to 1383c and state supplemental aid under s. 49.77 whichever is lower. In this subdivision “income" includes earned or unearned income that would be included in determining eligibility for the individual or family under s. 49.19 or 49.77 , or for the aged, blind or disabled under 42 USC 1381 to 1385 . “Income" does not include earned or unearned income which would be excluded in determining eligibility for the individual or family under s. 49.19 or 49.77 , or for the aged, blind or disabled individual under 42 USC 1381 to 1385 .

2. Whenever an applicant has excess income under subd. 1. or par. (am) , no certification may be issued until the excess income above the applicable limits has been obligated or expended for medical care or for any other type of remedial care recognized under state law or for personal health insurance premiums or both.

(cm)

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.

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.

3. An individual who is otherwise eligible under this subsection and who has set aside funds in an irrevocable burial trust under s. 445.125 (1) (a) 2. shall, as a condition of eligibility for medical assistance, specify the state as a secondary beneficiary of the trust with respect to all funds in the trust that exceed the burial costs but do not exceed the amount of medical assistance paid on behalf of the individual.

(cr)

1. As a condition of receiving medical assistance for long-term care services described in s. 49.453 (2) (a) , an applicant for or recipient of the long-term care services shall disclose on the application or recertification form a description of any interest the individual or his or her community spouse, as defined in s. 49.453 (1) (ar) , has in an annuity, regardless of whether the annuity is irrevocable or is treated as an asset. The application or recertification form shall include a statement that the state becomes a remainder beneficiary under any annuity in which the individual or his or her spouse has an interest by virtue of the provision of the medical assistance. The applicant or recipient shall, no later than 30 days after the department receives the application or recertification form, take any action required by the annuity issuer to make the state a remainder beneficiary.

2. The department shall notify the issuer of an annuity disclosed under subd. 1. of the state's right as a remainder beneficiary and shall request that the issuer notify the department of any changes to or payments made under the annuity contract.

3. This paragraph applies to all of the following:

a. Annuities purchased on or after February 8, 2006.

b. Annuities purchased before February 8, 2006, for which a transaction, as defined in s. 49.453 (4) (ac) , has occurred on or after February 8, 2006.

(d) An individual is eligible for medical assistance under this section for 3 months prior to the month of application if the individual met the eligibility criteria under this section during those months.

(e) Temporary absence of a resident from the state shall not be grounds for denying the certificate or for the cancellation of an existing certificate.

(f) An individual determined to be eligible for benefits under par. (am) 1. remains eligible for benefits under par. (am) 1. for the balance of the pregnancy and to the last day of the first month which ends at least 60 days after the last day of the pregnancy without regard to any change in the individual's family income.

(g) If a child eligible for benefits under par. (am) 2. is receiving inpatient services covered under sub. (6) 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. (am) 2. , the child remains eligible for benefits until the end of the stay for which the inpatient services are furnished.

(h) For the purposes of par. (am) , “income" includes income that would be used in determining eligibility for aid to families with dependent children under s. 49.19 and excludes income that would be excluded in determining eligibility for aid to families with dependent children under s. 49.19 .

(i)

1. The department shall request a waiver from the secretary of the federal department of health and human services to permit the application of subd. 2. The waiver shall request approval to implement the waiver on a statewide basis, unless the department of health services determines that statewide implementation of the waiver would present an obstacle to the approval of the waiver by the secretary of the federal department of health and human services, in which case the waiver shall request approval to implement the waiver in 48 pilot counties to be selected by the department of health services. Within 30 days after August 12, 1993, the department of safety and professional services shall notify funeral directors licensed under ch. 445 , cemetery associations, as defined in s. 157.061 (1r) , and cemetery authorities, as defined in s. 157.061 (2) , of the terms of the waiver required to be requested under this subdivision. If the waiver is approved by the secretary of the federal department of health and human services and if the waiver remains in effect, subd. 2. shall apply.

2. Notwithstanding par. (b) 2r. and 3. , a person who is described in par. (a) 3. or 4. is not eligible for benefits under this section if any of the following criteria is met:

a. For the person or his or her spouse, the sum of the following, less the cash value of any life insurance excluded under par. (b) 2w. that was obtained after July 1, 1993, exceeds $8,000: the value of any burial space or agreement described in par. (b) 2r. that was acquired after July 1, 1993; the amount in any irrevocable burial trust under s. 445.125 (1) (a) that was acquired after July 1, 1993; and any funds set aside after July 1, 1993, to meet the burial and related expenses under par. (b) 3.

b. The value of any burial space or agreement described in par. (b) 2r. that is held for any other member of the person's immediate family and that was acquired after July 1, 1993, exceeds $8,000.

c. For the person or his or her spouse, the value of amounts set aside under par. (b) 3. for cemetery property and fees to open and close grave sites, including mausoleum spaces, exceeds $1,000.

(j) If the change in the approved state plan under s. 49.46 (1) (am) 2. is denied, the department shall request a waiver from the secretary of the federal department of health and human services to allow the use of federal matching funds to provide medical assistance coverage under par. (am) 1. and 2. to individuals whose family incomes do not exceed 185 percent of the poverty line in each state fiscal year after the 1994-95 state fiscal year.

(k) Notwithstanding par. (b) 3. and s. 445.125 (1) (a) , no later than 60 days after July 1, 2013, the department shall seek approval from the federal Centers for Medicare and Medicaid Services to permit any individual receiving medical assistance under this section to contribute funds to an irrevocable burial trust for the individual, up to a total irrevocable trust amount of $4,500, without the individual losing eligibility for medical assistance under this section. If the federal Centers for Medicare and Medicaid Services approves the request, the department shall implement the change under this section within 60 days after receiving approval.

(5)   Investigation by department. The department may make additional investigation of eligibility at any of the following times:

(a) When there is reasonable ground for belief that an applicant may not be eligible or that the beneficiary may have received benefits to which the beneficiary is not entitled.

(b) Upon the request of the secretary of the U.S. department of health and human services.

(6)   Benefits.

(a) The department shall audit and pay charges to certified providers for medical assistance on behalf of the following:

1. Except as provided in subds. 6. to 7. , all beneficiaries, for all services under s. 49.46 (2) (a) and (b) , subject to s. 49.46 (2) (dc) .

6.

a. In this subdivision,“ entitled to coverage under part A of medicare" means eligible for and enrolled in part A of medicare under 42 USC 1395c to 1395f .

ag. In this subdivision,“entitled to coverage under part B of medicare" means eligible for and enrolled in part B of medicare under 42 USC 1395j to 1395L .

ar. In this subdivision,“income limitation" means income that is equal to or less than 100 percent of the poverty line, as established under 42 USC 9902 (2).

b. An individual who is entitled to coverage under Part A of Medicare, entitled to coverage under Part B of Medicare, meets the eligibility criteria under sub. (4) (a) , and meets the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395zz that are not paid under 42 USC 1395 to 1395zz , including those Medicare services that are not included in the approved state plan for services under 42 USC 1396 ; the monthly premiums payable under 42 USC 1395v ; the monthly premiums, if applicable, under 42 USC 1395i-2 (d); and the late enrollment penalty, if applicable, for premiums under Part A of Medicare. Payment of coinsurance for a service under Part B of Medicare under 42 USC 1395j to 1395w and payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

c. An individual who is only entitled to coverage under Part A of Medicare, meets the eligibility criteria under sub. (4) (a) , and meets the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395i that are not paid under 42 USC 1395 to 1395i , including those Medicare services that are not included in the approved state plan for services under 42 USC 1396 ; the monthly premiums, if applicable, under 42 USC 1395i-2 (d); and the late enrollment penalty, if applicable, for premiums under Part A of Medicare. Payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

d. An individual who is entitled to coverage under Part A of Medicare, entitled to coverage under Part B of Medicare, and meets the eligibility criteria for Medical Assistance under sub. (4) (a) , but does not meet the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395zz that are not paid under 42 USC 1395 to 1395zz , including those Medicare services that are not included in the approved state plan for services under 42 USC 1396 . Payment of coinsurance for a service under Part B of Medicare under 42 USC 1395j to 1395w and payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

e. An individual who is only entitled to coverage under Part A of Medicare and meets the eligibility criteria for Medical Assistance under sub. (4) (a) , but does not meet the income limitation, the deductible and coinsurance portions of Medicare services under 42 USC 1395 to 1395i , including those services that are not included in the approved state plan for services under 42 USC 1396 . Payment of deductibles and coinsurance for inpatient hospital services under Part A of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

f. For an individual who is only entitled to coverage under Part B of Medicare and meets the eligibility criteria under sub. (4) , but does not meet the income limitation, Medical Assistance shall include payment of the deductible and coinsurance portions of Medicare services under 42 USC 1395j to 1395w , including those Medicare services that are not included in the approved state plan for services under 42 USC 1396 . Payment of coinsurance for a service under Part B of Medicare may not exceed the allowable charge for the service under Medical Assistance minus the Medicare payment.

6m. An individual who is entitled to coverage under part A of medicare, as defined in subd. 6. a. is entitled to coverage under part B of medicare, as defined in subd. 6. ag. and meets the eligibility criteria under sub. (4) (a) and whose income is greater than 100 percent of the poverty line but less than 120 percent of the poverty line for the monthly premiums under 42 USC 1395r .

7. Beneficiaries eligible under sub. (4) (ag) 2. or (am) 1. , for services under s. 49.46 (2) (a) and (b) that are related to pregnancy, including postpartum services and family planning services, as defined in s. 253.07 (1) (b) , or related to other conditions which may complicate pregnancy.

(b) In no event may payments be made for medical assistance rendered during a period when the beneficiary would not have been eligible for benefits under this section.

(c) Benefits shall not include any payment with respect to:

1. Care or services in any private or public institution, unless the institution has been approved by a standard-setting authority responsible by law for establishing and maintaining standards for such institution.

2. That part of any service otherwise authorized under this section which is payable through 3rd-party liability or any federal, state, county, municipal or private benefit systems, to which the beneficiary may otherwise be entitled.

3. Care or services for an individual who is an inmate of a public institution, except as a patient in a medical institution or a resident in an intermediate care facility.

4. Services to individuals aged 21 to 64 who are residents of an institution for mental diseases and who are otherwise eligible for medical assistance, except for individuals under 22 years of age who were receiving these services immediately prior to reaching age 21 and continuously thereafter and except for services to individuals who are on convalescent leave or are conditionally released from the institution for mental diseases. For purposes of this subdivision, the department shall define “convalescent leave" and “conditional release" by rule.

(d) No payment under this subsection may include care for services rendered earlier than 3 months preceding the month of application.

(7)   Reduction of benefits. If the funds appropriated become or are estimated to be insufficient to make full payment of benefits provided under this section, all charges for service so authorized shall be prorated on the basis of funds available or by limiting the benefits provided.

(8)   Enrollment fee. As long as an enrollment fee or premium is required for persons receiving benefits under Title XIX of the social security act, the department shall charge the minimum enrollment fee or premium required under federal law. The fee or premium so charged shall be related to the beneficiary's income, in accordance with guidelines established by the secretary of the U.S. department of health and human services.

1971 c. 125 ; 1971 c. 213 s. 5 ; 1971 c. 215 ; 1973 c. 90 , 147 , 333 ; 1977 c. 29 ss. 593 , 1656 (18) ; 1977 c. 105 s. 59 ; 1977 c. 273 , 418 ; 1979 c. 34 ; 1981 c. 20 , 93 ; 1981 c. 314 s. 144 ; 1983 a. 27 , 245 ; 1985 a. 29 ; 1987 a. 27 , 307 , 399 , 413 ; 1989 a. 9 ; 1989 a. 31 ss. 1462k to 1466d , 2909c to 2909i ; 1989 a. 173 , 336 , 351 ; 1991 a. 39 , 178 , 269 , 316 ; 1993 a. 16 , 269 , 277 , 437 ; 1995 a. 27 ss. 3026 to 3028 , 9126 (19) ; 1995 a. 225 , 289 , 295 ; 1997 a. 27 ; 1999 a. 9 ; 2001 a. 16 ; 2005 a. 25 , 253 ; 2007 a. 11 , a. 20 ss. 1596 to 1604 , 9121 (6) (a) ; 2009 a. 28 , 180 ; 2011 a. 10 , 32 ; 2013 a. 20 ; 2013 a. 116 ss. 29 , 30 ; 2013 a. 117 s. 2 , 3 . Cross-reference: See also chs. DHS 102 , 103 , and 107 , Wis. adm. code. Compliance of state spend-down requirements with federal requirements are discussed. Swanson v. DHSS, 105 Wis. 2d 78 , 312 N.W.2d 833 (Ct. App. 1981). Evaluating disability claims requires determining whether the claimant: 1) is working; 2) has significant impairments that significantly limit physical or mental ability to work; 3) has impairments that are federal “listed impairments;" 4) does not have “listed impairments" and can return to prior work; 5) cannot return to prior work but can perform other work. Clauer v. DHSS, 174 Wis. 2d 344 , 497 N.W.2d 738 (Ct. App. 1993). Section 49.46 (1) (b) and sub. (6) (d) limit retroactive medical assistance payments to services received not more than three months prior to the date the application was submitted. St. Paul Ramsey Medical Center v. DHSS, 186 Wis. 2d 37 , 519 N.W.2d 706 (Ct. App. 1994). A regulation that “deemed" resources of one spouse to be “available" to the other was valid. Schweiker v. Gray Panthers, 453 U.S. 34 (1981).