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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/ |
6.1.5.1 Waiver of Estate Claim
6.1.5.2 Notice of Hardship Waiver Rights
6.1.5.3 Administrative Hearings: Hardship Waivers
6.1.5.4 Personal Representative’s Report
6.1.5.5 Home as Part of the Estate
6.1.5.6 Affidavits in Small Sum Estates
6.1.5.8 Voluntary Recovery (ERP)
DHFS recovers MA benefit costs from the client’s estate. No claim is made on the client’s spouse’s estate for a MA client’s costs.
When DHFS learns of the death of a client, it files a claim at probate court in the amount of MA recoverable benefits.
The probate court will not allow a claim on the estate to be paid if any of the following survives the client:
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 DHFS. ERP staff should be notified if a claim is filed by the county against an estate for recovery of overpayments or incorrect MA benefits, for those 55 years of age or older or for any client who has resided in a nursing home.
Refer any questions about specific estate claims to the ERP staff.
In estates of clients who die on or after April 1, 1995, an heir or beneficiary of the deceased client’s estate 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, FS or MA if ERP pursued the estate claim.
The deceased client’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/her means of livelihood.
The waiver applicant is receiving general relief or veteran’s benefits based on need under §45.351(1) Wis. Stats.
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, 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 client.
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 client'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.
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 Division of Hearings and Appeals (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 DHFS’ 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 DHFS, the applicant must mail that evidence to DHFS with a postmark at least seven working days before the hearing date.
The personal representative of the estate of an MA client must notify DHFS that the estate is being probated [§859.07(2), Wis. Stats.]. The notification must be by certified mail and include the date by which claims against the estate must be filed.
When a home is part of the estate, the court may impose a lien equal to the MA 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: Mr. A dies. A claim on his estate is filed and the estate includes his home. 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 home 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. |
DHFS 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 client:
Resides in the client’s home, and
That child resided in that home for at least 24 months before the client entered the nursing home, hospital, or received home and community-based waiver services, and
That child provided care that delayed the client’s move to the nursing home, hospital, or his/her receipt of home and community-based waiver services.
A sibling of the deceased client:
Resides in the client’s home, and
Resided in that home for at least 12 months before the date the client 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 child or sibling sells the home covered by the DHFS lien, and uses the sale proceeds to buy another home to be used as that child’s or sibling’s primary residence, then:
DHFS 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, DHFS 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, DHFS will file a lien for the remaining amount on the new home.
Heirs of a deceased MA client must notify ERP before transferring any of the deceased funds through a Transfer by Affidavit ( $20,000 and Under ) ( §867.03, Wis. Stats.). The heir must send a copy of the affidavit to ERP by certified mail, return receipt requested. S/he must wait ten days from the delivery date on the return receipt card before transferring the deceased’s funds. Property considered to be the home of a MA client who passed away after September 1, 2001 and is being transferred by an affidavit is subject to a lien if the state’s claim cannot be satisfied through available liquid assets Liquid assets are defined as cash or assets which can readily be converted to cash. Examples 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/recipient and negotiable; etc.. The DHFS may not enforce the lien while any of the following survive:
Spouse,
Child who is:
Under age 21, or
Blind, or
Disabled.
If an heir claims the patient account fund or transfers the deceased’s funds from a financial institution, ERP will send an affidavit to the heir 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 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 MA client dies with money left in his/her nursing home patient fund account if s/he 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 MA.
When a client age 55 or older wishes to pay an amount to MA to maintain MA eligibility, prepay a MA 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 MA 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 MA paid to date. (See 6.1.10) for voluntary recoveries for clients under age 55.)
The check or money order should be made payable to DHFS.
Mail the payment to:
Estate Recovery
6406 Bridge Road
Madison, Wisconsin 53784-0013
With the payment, include:
Documentation that the payment is voluntary.
The client’s name and MA ID number.
Name and address of the person who should receive the receipt.
These refunds will be credited to the client and will be used to offset any claim that may be filed in the client’s estate.
Incentive payments of 5% will be paid to the IM Agency for refunds.
See the IMM, Ch. II, Part A, 3.2.0 for recovery of improper benefits.
Advise heirs and beneficiaries of deceased clients who wish to make a voluntary refund to call ERP staff.
This page last updated in Release Number : 01-01
Release Date: 01/01/01
Effective Date: 01/01/01
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