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Wisconsin Department of Health and Family Services Obsolete Medicaid Eligibility Handbook For the current MEH, see http://www.emhandbooks.wi.gov/meh-ebd/ For the current BC Plus Handbook, see http://www.emhandbooks.wi.gov/bcplus/ |
6.1.4.1 Notice of Intent to File a Lien
6.1.4.4 Change in Circumstances
6.1.4.6 Adjustment for Burial Trust
6.1.4.7 Administrative Hearing: Liens
6.1.4.8 Homes Placed in Revocable Trusts
DHFS will not file a lien on:
Nonhome property.
Life estates.
Homestead property sold by land contract.
Property outside Wisconsin (See 6.1.4.2).
A mobile home or the land it sits on when the client does not own the land.
DHFS 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 client owns the land.
A home placed in a revocable trust (See 6.1.4.8).
When a home is sold, DHFS uses the lien to recover certain payments for MA services provided as listed in 6.1.2. The lien’s value is “open ended.” The lien’s value increases as the amount of recoverable MA services paid accumulates.
Payment of the lien is made directly to DHFS. Do not accept any payments relating to liens filed by DHFS.
Contact the ERP Liens Specialist if the client’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: Mr. A applies for MA on 03-06-95. He has a home and his circumstances require a lien. The IM agency sends a Notice of Intent to File a Lien on 03-10-95. ERP staff can not file a lien until 04-24-95 because of the required 45 day waiting period. Mr. A’s legal representative sells the property on 04-10-95. Recovery of Mr. A’s MA 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 ( HCF 13038 ) when an MA client meets all the following criteria. S/he:
Lives in a nursing home or inpatient hospital and is required to contribute to the cost of care.
Has a home (4.5.1).
Is not expected to return to live at that home.
Base this decision on the person’s medical condition. His/her physician’s statement that s/he can reasonably be expected to return home is sufficient support for the person’s claim that s/he will return.
The physician’s statement should include a description of the diagnosis and prognosis for the client. 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 client, family, guardian, power of attorney, or physician, that the person will return home, consult with the Estate Recovery Program’s Lien Specialist. Do NOT file a Notice of Intent to File a Lien until ERP staff have checked with the Department of Health and Family Services’ 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 client 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 client’s nursing home or hospital admission.
When you have completed the Notice:
Mail or give the original to the client or his/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 client 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 an MA client 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.
DHFS 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 (See 21.4.0) of the client’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 client lives in the home, DHFS is able to file a lien. It will not enforce the lien until that child moves or the home is sold if s/he:
Lived in the home with the client for at least two years before the resident’s admission to the nursing home or hospital, and
Assisted the parent such that s/he helped delay the client’s admission.
When a sibling of the client (other than a sibling described in 21.4.1) lives in the home, DHFS 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 client’s admission to the nursing home or hospital.
Alert the ERP when your client meets either of these two case situations.
DHFS may adjust the amount of its lien to allow a client 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 client or his/her representative may request an administrative hearing if s/he 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 client has an ownership interest in a home.
The client resides in a nursing home or hospital.
The client 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 client’s spouse.
The client’s child who is:
Under age 21, or
Disabled, or
Blind.
The client’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 client was admitted to the nursing home or hospital.
The request for an administrative hearing must be made in writing directly to the Division of Hearings and Appeals (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 MA client places his/her home in a revocable trust (4.5.1); s/he retains an ownership interest in the home. Complete a Notice of Intent to File a Lien if the client meets the conditions for a lien to be filed (See 6.1.4.1).
This page last updated in Release Number : 01-01
Release Date: 01/01/01
Effective Date: 01/01/01