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State of Wisconsin |
HISTORY |
The policy on this page is from a previous version of the handbook.
The state seeks repayment of certain correctly paid health and LTC benefits by:
These procedures are the ERP . No ERP recovery may be made for Medicaid services provided before October 1, 1991.
Not all services provided by Medicaid are recoverable. Recoverability depends on what was provided and the member ’s age and residence when he or she received the benefit.
The following are the services for which ERP may seek recovery:
All Medicaid services received while institutionalized in an inpatient hospital on or after July 1, 1995.
All HCBW services ( COP-W , CIP 1A, CIP 1B, CIP II, Brain Injury Waiver, Community Opportunities and Recovery, and Community Supported Living Arrangements) received by members age 55 or older between July 1, 1995, and July 31, 2014:
All Family Care Partnership HCBW services, prescription/legend drugs and benefits associated with an inpatient hospital stay that are received by members age 55 or older between March 1, 2009, and July 31, 2014.
All IRIS services, prescription/legend drugs and benefits associated with an inpatient hospital stay that are received by members age 55 or older before August 1, 2014.
All Medicaid services received by members age 55 or older participating in a LTC program on or after August 1, 2014.
LTC programs include all HCBW programs (including COP-W, CIP 1A, CIP 1B, CIP II, Brain Injury Waiver, Community Opportunities and Recovery, Community Supported Living Arrangements, FamilyCare, FamilyCare Partnership, IRIS, and
PACE
). The capitation payment made to the
MCO
on or after August 1, 2014, will be recovered for members receiving LTC program services through managed care.
Costs that may be recovered through a lien are:
As of January 1, 2010, payments for premiums, copayments, and deductibles for QMB and Medicare Part B for any MSP member are not recoverable through ERP.
For ERP purposes, a "nursing home” is a place that provides 24-hour services, including room and board, to three or more unrelated residents who, because of their mental or physical condition, require nursing or personal care more than seven hours a week. This includes SNF , ICF , in-patient psychiatric facilities, and Facilities for the Developmentally Disabled (FDD). A "nursing home” does not include:
A convent or facility owned or operated exclusively by and for members of a religious order that provides reception and care or treatment.
A hospice, as defined in Wis. Stat. § 50.90(1), that directly provides inpatient care.
Community waiver residence.
IMD .
22.1.4.1 Notice of Intent to File a Lien
22.1.4.2 Out-of-State Property
22.1.4.4 Change in Circumstances
22.1.4.6 Adjustment for Burial Trust
22.1.4.7 Administrative Hearing: Liens
22.1.4.8 Homes Placed in Revocable Trusts
DHS will not file a lien on:
Non-home property.
Homestead property sold by land contract.
Property outside Wisconsin (see Section 22.1.4.2 Out-of-State Property).
A mobile home or the land it sits on when the member does not own the land.
DHS may file a lien on:
A home and all property used and operated in connection with that home.
A mobile home and the land it sits on, when the member owns the land.
A home placed in a revocable trust (see Section 22.1.4.8 Homes Placed in Revocable Trusts).
Life estates created on or after August 1, 2014.
When a home is sold, DHS uses the lien to recover certain payments for Medicaid services provided as listed in Section 22.1.2 Recoverable Services. The lien’s value is "open ended.” The lien’s value increases as the amount of recoverable Medicaid services paid accumulates.
Payment of the lien is made directly to DHS. Do not accept any payments relating to liens filed by DHS.
Contact the ERP Estate Recovery Specialist if the member’s home is sold within 45 days after the Notice of Intent to File a Lien is completed.
The lien has no effect until filed.
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Example 1: Mr. A applies for Medicaid on March 6, 1995. He has a home and his circumstances require a lien. The IM agency sends a Notice of Intent to File a Lien on March 10, 1995. ERP staff cannot file a lien until April 24, 1995, because of the required 45 day waiting period. Mr. A’s legal representative sells the property on April 10, 1995. Recovery of Mr. A’s Medicaid payments by a lien on that property is not possible as the property was sold before a lien was filed. The IM agency contacts the ERP Lien Specialist to report on the home’s sale. |
Complete a Notice of Intent to File a Lien (F-13038 paper form) when a Medicaid member meets all the following criteria. He or she:
Lives in a nursing home or inpatient hospital and is required to contribute to the cost of care. (Individuals eligible under a MAGI group are not required to contribute to the cost of care and are not subject to liens on their homes.)
Has a home (see Section 16.1 Assets Introduction).
Is not expected to return to live at that home.
Base this decision on the person’s medical condition. His or her physician’s statement that he or she can reasonably be expected to return home is sufficient support for the person’s claim that he or she will return.
The physician’s statement should include a description of the diagnosis and prognosis for the member. A form asking for a physician to merely indicate by checking a box, etc., that there is a reasonable expectation that the institutionalized individual will return home is not acceptable or sufficient. Allow the physician a reasonable amount of time to provide this information.
When there is contradictory information (from a nursing home social worker, discharge planner, etc.) concerning the reasonable expectation of returning home, or you question the reasonableness of the statement by the member, family, guardian, power of attorney, or physician that the person will return home, consult with the ERP’s Estate Recovery Specialist. Do not file a Notice of Intent to File a Lien until ERP staff has checked with DHS medical consultants. If ERP determines there is not a reasonable expectation, ERP will send you a letter listing the reasons for this decision. At that point, if all of the other conditions described in this section are met, file the Notice of Intent to File a Lien.
None of these relatives of the member reside in that home.
Spouse .
Child who is:
Under age 21, or
Blind, or
Disabled.
Sibling, if the sibling:
Has an equity interest in the home; and
Lived in the home continuously beginning at least 12 months before the member’s nursing home or hospital admission.
When you have completed the Notice:
Mail or give the original to the member or his or her authorized representative .
Send a copy to the ERP office.
Attach a legible copy of the latest property tax bill or a copy of the property deed (if available) for any homestead property reported. This gives ERP staff the information necessary to obtain the legal description needed to file a lien.
File a copy in the case record.
ERP staff delays further action until the period given the member to request a fair hearing passes. If no hearing is requested, ERP staff will file a lien on the property with the Register of Deeds for the county in which the property is located. If a hearing is requested, a lien is not filed until approved by a hearing decision.
If a Medicaid member has property outside Wisconsin that would be subject to a lien if located in Wisconsin, provide the same data you would provide on Wisconsin property. Do not give a Notice of Intent to File a Lien.
DHS may not file liens against out-of-state properties. However, ERP staff wants data on these cases to assist in negotiating lien agreements with other states.
If, despite expectations, the resident is discharged from the nursing home or inpatient hospital, to return home to live, the lien must be released. Notify the ERP. ERP staff will release the lien.
At review and other times, at local option, reexamine the circumstances of the member’s home. If conditions change such that a lien must be filed, complete a Notice of Intent to File a Lien.
ERP staff applies special consideration for the following two case situations:
When a child (age 21 or older) of the member lives in the home, DHS is able to file a lien. It will not enforce the lien until that child moves or the home is sold if he or she:
Lived in the home with the member for at least two years before the resident’s admission to the nursing home or hospital, and
Assisted the parent such that he or she helped delay the member’s admission.
When a sibling of the member (other than a sibling described in Section 22.1.4.1 Notice of Intent to File a Lien) lives in the home, DHS is able to file a lien. It will not enforce the lien until that sibling moves or the home is sold if the sibling resided in the home for at least 12 months before the member’s admission to the nursing home or hospital.
Alert the ERP when your member meets either of these two case situations.
DHS may adjust the amount of its lien to allow a member to use proceeds from the sale of the home to establish or supplement a burial trust. ERP staff will review each situation individually. Refer any questions regarding lien satisfaction amounts or lien releases to the ERP staff.
A member or his or her representative may request an administrative hearing if he or she feels the statutory requirements for imposing the lien have not been met. The IM agency attends the hearing to explain the decision to file the Notice of Intent to File a Lien. The only issue at the hearing will be whether the following requirements were satisfied:
The member has an ownership interest in a home.
The member resides in a nursing home or hospital.
The member cannot reasonably be expected to be discharged from the nursing home or hospital and return home to live.
None of the following lawfully reside in the home:
The member’s spouse .
The member’s child who is:
Under age 21, or
Disabled, or
Blind.
The member’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 member was admitted to the nursing home or hospital.
The request for an administrative hearing must be made in writing directly to the DHA at:
Department of Administration
Division of Hearings and Appeals
P.O. Box 7875
Madison, WI 53707-7875
The request must be clearly marked "Medicaid Lien” and must be filed within 45 days of the mail date on the Notice of Intent to File a Lien. The date the written request is received by DHA is the date the hearing request is considered filed.
If a Medicaid member places his or her home in a revocable trust (see Section 16.1 Assets Introduction), he or she retains an ownership interest in the home. Complete a Notice of Intent to File a Lien if the member meets the conditions for a lien to be filed (see Section 22.1.4.1 Notice of Intent to File a Lien).
22.1.5.1 Waiver of Estate Claim
22.1.5.2 Notice of Hardship Waiver Rights
22.1.5.3 Administrative Hearings: Hardship Waivers
22.1.5.4 Personal Representative’s Report
22.1.5.5 Real Property as Part of the Estate
22.1.5.6 Affidavits in Small Sum Estate and Non-Probate Property
22.1.5.9 Reparation Payments to Individuals
22.1.5.10 Voluntary Recovery (ERP)
DHS recovers Medicaid benefit costs from the member’s estate or from the member’s surviving spouse’s estate
Recovery from a member’s surviving spouse’s estate will be limited to 50 percent of the marital property that the member had an interest in immediately prior to death.
When DHS learns of the death of a member or a member’s surviving spouse, it files a claim in probate court in the amount of Medicaid recoverable benefits.
The probate court will not allow a claim on the estate to be paid if any of the following survives the member:
A spouse.
A child, if the child is:
Under age 21, or
Blind, or
Disabled.
Do not negotiate a settlement, accept any funds, or sign any release for estate claims that have been filed by DHS. ERP staff should be notified if a claim is filed by the county against an estate for recovery of overpayments or incorrect Medicaid benefits for those 55 years of age or older or for any member who has resided in a nursing home.
Refer any questions about specific estate claims to the ERP staff.
In estates of members who die on or after April 1, 1995, an heir or beneficiary of the deceased member’s estate or co-owner or beneficiary of a member’s non-probate property may apply for a waiver of an estate claim filed by ERP. To be successful, the person applying for the waiver must show one of these three hardships exist:
The waiver applicant would become or remain eligible for AFDC, SSI , FoodShare, or Medicaid if ERP pursued the estate claim.
The deceased member’s real property is part of the waiver applicant’s business (for example, a farm) and the ERP recovery claim would affect the property and result in the waiver applicant’s loss of his or her means of livelihood.
The waiver applicant is receiving general relief or veteran’s benefits based on need under Wis. Stat. § 45.40(1m).
The waiver application must be made in writing within 45 days after the day:
ERP mailed its recovery claim to the probate court or its affidavit to the heir, beneficiary, or co-owner or
ERP mailed its notice of waiver rights, whichever is latest.
The waiver application must include these points:
Relationship of the waiver applicant to the deceased member.
The hardship under which the waiver is requested.
ERP staff must issue a written decision granting or denying the waiver request within 90 days after the waiver application is received by ERP. In determining its decision, ERP must consider all information provided to it within 60 days of its receipt of the waiver application.
ERP will provide notice of the waiver provisions to the person handling the deceased member's estate. If ERP is not able to determine who that person is, the notice will be included with the claim when ERP files it with the claim court.
The person handling the estate is then responsible for notifying the decedent’s heirs and beneficiaries of the waiver provisions.
ERP will provide notice of the waiver provisions to co-owners and beneficiaries of the member’s non-probate property.
If a waiver application is denied, the waiver applicant may request an administrative hearing. ERP staff will attend the hearing to defend their denial of the hardship waiver.
The hearing request must be made within 45 days of the date the ERP decision was mailed.
The hearing request must:
Be made in writing.
Identify the basis for contesting the ERP decision.
Be made to the DHA at:
Department of Administration
Division of Hearings and Appeals
P.O. Box 7875
Madison, WI 53707-7875
The date the request is received at DHA is used to determine the timeliness of the request.
ERP staff will maintain DHS’ claim in the estate pending the administrative hearing decision. If collections are made and the waiver is ultimately approved, those funds will be returned.
To introduce evidence at a hearing not previously provided to DHS, the applicant must mail that evidence to DHS with a postmark at least seven working days before the hearing date.
The personal representative of the estate of a Medicaid member must notify DHS that the estate is being probated (Wis. Stat. § 859.07[2]). The notification must be by certified mail and include the date by which claims against the estate must be filed.
When a real property is part of the estate, ERP may file a lien equal to the Medicaid payments even if one of these persons is alive:
The spouse.
A child under age 21.
A disabled or blind child of any age.
Recovery through the lien will not be enforced as long as any of these persons meet the criteria and is alive.
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Example 2: Mr. A dies. A claim on his estate is filed and the estate includes his real property. His spouse is deceased, and he has no blind or disabled child. He has a child, age 19. This child lives outside Mr. A’s home. A lien is placed on the real property but cannot be enforced because the minor child is still alive. The child later turns 21. As there is then no living spouse, child under 21, or disabled or blind child, the lien can be enforced. |
DHS will take a lien in full or partial settlement of an estate claim against the portion of an estate that is a home if:
A child, of any age of the deceased member:
Resides in the member’s home, and
That child resided in that home for at least 24 months before the member entered the nursing home, hospital, or received HCBW services, and
That child provided care that delayed the member’s move to the nursing home, hospital, or his or her receipt of HCBW services.
A sibling of the deceased member:
Resides in the member’s home, and
Resided in that home for at least 12 months before the date the member entered a nursing home, hospital, or received home and community-based services.
The lien filed in one of these two instances will be payable at the death of the child or sibling or when the property is transferred, whichever comes first.
However, if the caretaker child or sibling sells the home covered by the DHS lien and uses the sale proceeds to buy another home to be used as that child’s or sibling’s primary residence, then:
DHS will transfer the lien to the new home if the amount of the child or sibling’s payment or down payment for the new home is equal to or greater than the proceeds from the original home.
If the down payment on the new home is less than the proceeds from the sale of the original home, DHS will recover the amount of the proceeds above the down payment, but no greater than the lien amount. If there is an amount in the lien still not satisfied, DHS will file a lien for the remaining amount on the new home.
Heirs, guardians, and trustees of revocable trusts created by a deceased Medicaid member must notify ERP before transferring any of the deceased’s property through a Transfer by Affidavit ($50,000 and under) (Wis. Stat. § 867.03). The heir, guardian, or trustee must send a copy of the affidavit to ERP by certified mail, return receipt requested. Examples of property include bank accounts (savings or checking); postal savings; credit union or building and loan shares; contents of safe deposit boxes; savings bonds; stocks and other securities; promissory notes and mortgages which are payable to the applicant/member and negotiable; real estate; etc.
If an heir, guardian, or trustee transfers the deceased’s property, ERP will send an affidavit to the heir, guardian or trustee to recover any funds remaining after burial and estate administration costs have been paid. Funeral costs are limited to those expenses connected with the funeral service and burial. A marker for the grave is considered a burial cost. Memorials and/or donations to churches, organizations, persons, or institutions are not considered burial costs.
ERP will also send its affidavit to the co-owners and/or beneficiaries of a member’s non-probate property. Non-probate property is property that passes outside an individual’s estate. This means that non-probate property does not go through probate before it is transferred to those who inherit it. Non-probate property subject to recovery includes, but is not limited to, life estates, property held in joint tenancy, life insurance proceeds, property held in revocable trusts, and property that is payable-on-death or transfer-on-death to a beneficiary.
Co-owners and beneficiaries of a member’s non-probate property have the right to request a fair hearing as on the value of the member’s interest in the property.
The value of the member’s interest for jointly owned property is the percentage interest attributed to the member when Medicaid eligibility was determined or, if not determined at eligibility, the fractional interest the member had in the property at his or her death. For life estate interests, the value is the percentage of ownership based on the member’s age at the date of death, according to the life estate tables used for Medicaid eligibility.
The value of the property is the fair market value . Fair market value is the price a willing buyer would pay to a willing seller for purchase of the property. It is the co-owners’ or beneficiaries’ responsibility to establish that value through a credible method like an appraisal by a licensed appraiser.
ERP staff will attend the fair hearing to present DHS’ position on the value of the property.
Real property of a Medicaid member, whether non-probate or transferred by affidavit, is subject to a lien if the state’s claim cannot be satisfied through other assets.
The DHS may not enforce the lien while any of the following survive:
Spouse,
Child who is:
Under age 21, or
Blind, or
Disabled.
ERP will recover any funds that remain from a burial trust after costs have been paid.
Direct specific questions about questionable allowable costs to ERP staff.
Nursing homes are required to notify ERP when a Medicaid member dies with money left in his or her nursing home patient fund account if he or she has no surviving spouse or minor or disabled child.
ERP will claim from the nursing home any funds remaining in the patient account after payment of funeral and burial expenses and outstanding debts from the last month of illness that are not chargeable to Medicaid.
Native Americans: Income, Resources and Property Exempt from Medicaid Estate Recovery
The following income, resources, and property are exempt from Medicaid estate recovery:
Certain income and resources (such as interests in and income derived from Tribal land and other resources currently held in trust status and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations;
Ownership interest in trust or non-trust property, including real property and improvements:
Located on a reservation (any federally recognized Indian Tribe’s reservation, Pueblo, or Colony, including former reservations in Oklahoma, Alaska Native regions established by Alaska Native Claims Settlement Act and Indian allotments) or near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or
For any federally -recognized Tribe not described in (a), located within the most recent boundaries of a prior Federal reservation.
Protection of non-trust property described in (a) and (b) is limited to circumstances when it passes from an Indian (as defined in section 4 of the Indian Health Care Improvement Act) to one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a Tribe and non-Indians, such as spouses and step-children, that their culture would nevertheless protect as family members; to a Tribe or Tribal organization; and/or to one or more Indians;
Income left as a remainder in an estate derived from property protected in 2 above, that was either collected by an Indian, or by a Tribe or Tribal organization and distributed to Indian(s), as long as the individual can clearly trace it as coming from the protected property.
Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally-protected rights, and income either collected by an Indian, or by a Tribe or Tribal organization and distributed to Indian(s) derived from these sources as long as the individual can clearly trace it as coming from protected sources; and
Ownership interests in or usage rights to items not covered by 1-4 above that have unique religious, spiritual, traditional, and/or cultural significance or rights that support subsistence or a traditional life style according to applicable Tribal law or custom
Native Americans: Income, Resources and Property Not Exempt from Medicaid Estate Recovery
The following income, resources and property from the estates of Native Americans are not exempt from estate recovery:
Ownership interests in assets and property, both real and personal, that are not described in items 1-5 above.
Any income and assets left as a remainder in an estate that do not derive from protected property or sources in items 1-5.
Government reparation payments to special populations are exempt from Medicaid estate recovery.
When a member age 55 or older wishes to pay an amount to Medicaid to maintain Medicaid eligibility, prepay a Medicaid deductible, or reduce a potential claim in an estate, forward the payment to ERP. First check BVCI to make sure there is not an outstanding Medicaid claim for an overpayment since the money should be applied to an overpayment first. Voluntary payments, except for prepayment of a deductible, may only be up to the amount of Medicaid paid to date. (See Section 22.1.10 Voluntary Recovery (Not ERP) for voluntary recoveries for members under age 55.)
The check or money order should be made payable to DHS.
Mail the payment to:
Estate Recovery
313 Blettner Blvd
Madison WI
53714-2405
With the payment, include:
Documentation that the payment is voluntary.
The member’s name and Medicaid ID number.
Name and address of the person who should receive the receipt.
These refunds will be credited to the member and will be used to offset any claim that may be filed in the member’s estate.
Incentive payments of five percent will be paid to the IM agency for refunds.
Advise heirs and beneficiaries of deceased members who wish to make a voluntary refund to call ERP staff.
ERP maintains the Estate Recovery Database. Information you submit on the Estate Recovery Disclosure Form and data received through the SSA State Data Exchange (SDX) tape (for SSI/Medicaid members) is on the database.
The database is compared to the death record files of the DMS , Vital Records and State Registrar Section.
When a match shows a Medicaid member or his or her surviving spouse has died, a report record is produced. ERP staff checks the report against new probate proceedings listed on the Wisconsin Circuit Court Access website. This is a back up to the requirement that DHS be notified of the last date for filing claims.
Provide a copy of the Wisconsin Medicaid Estate Recovery Program Handbook (P-13032) to every Medicaid member 54 1/2 years old or older or institutionalized at application and review. Have each member or his or her representative read the notice of liability on the application form ("Estate Recovery”). He or she acknowledges understanding of this notice when signing the application.
Complete an Estate Recovery Program Disclosure form whenever a Medicaid member:
Enters or resides in a nursing home, or
Enters or resides in an inpatient hospital and is required to pay a Medicaid cost of care liability, or
Becomes 55 years old.
Do this even if he or she has zero assets.
Complete the form with information about the member, his or her spouse, and his or her children that are blind, disabled, or under age 21.
Attach a legible copy of the latest property tax bill or a copy of the property deed for any real property reported if possible. This may give ERP staff the property’s legal description needed to file a lien.
Attach a legible copy of any documents relating to trusts created by the member or the member’s spouse.
Request the member or his/her agent to sign the completed form. If he or she will not sign the form:
Sign the form at the "Member Signature” line.
Note near your signature that you reviewed the data with the person or his or her agent. Indicate:
That he or she did or did not agree the data was accurate.
The reason he or she did not sign.
In a mail-in application situation, document if the form was not returned or was returned without a signature.
Send the completed form to the ERP. File a copy in the case record.
You need not update this form unless there is a substantial change in circumstances (for example, an inheritance).
The ERP address is:
Estate Recovery Program Section
Division of Medicaid Services
P.O. Box 309
Madison, WI 53701-0309
For general information regarding ERP, refer members to Member Services at 1-800-362-3002.
Direct case-specific questions about:
Estate recovery disclosure forms and liens to the Estate Recovery Specialist, 608-264-6755.
For small estates of $50,000 or less, provide the phone number of the "Affidavit Help Line,” 608-264-6756, to heirs of deceased members who have questions about ERP. The Help Line provides recorded messages that answer the most frequently asked questions regarding small sum estates. It also provides the caller with an opportunity to either leave a message or talk to ERP staff.
Tribal inquiries should be re-directed to the ERP Section Chief, 608-261-7831.
Accept payments from a member under age 55 made for purposes of Medicaid eligibility or prepaying a Medicaid deductible.
Instruct the member to make the payment payable to your IM agency. Report the receipt on the Community Aids Reporting System (CARS) on Line 909.
DHS will return to local agencies five percent of collections made through a lien, voluntary payments, and probated estate recoveries. We will pay this incentive to the last agency certifying the member for Medicaid.
The payments are discretionary. DHS will make them based on compliance with program requirements.
ERP also recovers for Community Options Program (COP), WCDP , and non-Medicaid Family Care.
Note: Non-Medicaid Family Care no longer exists as of May 1, 2003. However, ERP could recover from those who received benefits under this program prior to May 1, 2003.
The information concerning the Medicaid program provided in this handbook release is published in accordance with: Titles XI and XIX of the Social Security Act; Parts 430 through 481 of Title 42 of the Code of Federal Regulations; Chapters 46 and 49 of the Wisconsin Statutes; and Chapters HA 3, DHS 2, 10 and 101 through 109 of the Wisconsin Administrative Code.
Notice: The content within this manual is the sole responsibility of the State of Wisconsin's Department of Health Services (DHS). This site will link to sites outside of DHS where appropriate. DHS is in no way responsible for the content of sites outside of DHS.
Publication Number: P-10030