49.849 Recovery of correct payments under certain public assistance programs.

(1) Definitions. In this section:

(a) “Decedent" means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.

(b) “Department" means the department of health services.

(c) “Nonrecipient surviving spouse" means any of the following:

1. A person who was married to a recipient when the recipient was receiving or received public assistance and who survived the recipient.

2. A person who was married to a recipient on whose behalf aid under s. 49.785 was provided, who was married to the recipient at the recipient's death or when the recipient was receiving or received any of the benefits described in s. 49.785 (1c) that made the recipient an eligible recipient under s. 49.785, or at both times, and who survived the recipient.

(d) “Property of a decedent" means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.

(e) “Public assistance" means any services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV, or aid under s. 49.68, 49.683, 49.685, or 49.785.

(f) “Recipient" means a person who received public assistance.

(2) Recoverable amounts.

(a) Subject to par. (b), the department may collect from the property of a decedent by affidavit under sub. (3) (b) or by lien under sub. (4) (a) an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), the long-term community support services under s. 46.27, 2017 stats., that is recoverable under s. 46.27 (7g) (c) 1., 2017 stats., or the aid under s. 49.68, 49.683, 49.685, or 49.785 that is recoverable under s. 49.682 (2) (a) or (am), and that was paid on behalf of the decedent or the decedent's spouse, if all of the following conditions are satisfied:

1. The decedent died after September 30, 1991, or for the recovery of aid under s. 49.785 the decedent died after July 14, 2015.

2. The decedent is not survived by a spouse, a child who is under age 21, or a child who is disabled, as defined in s. 49.468 (1) (a) 1. This subdivision does not apply for the recovery of aid under s. 49.785.

(b) The department shall reduce the amount of its recovery under par. (a) by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent's heirs or beneficiaries under the decedent's will to retain the following personal property of the decedent:

2. Wearing apparel and jewelry held for personal use.

3. Household furniture, furnishings, and appliances.

4. Other tangible personal property not used in trade, agriculture, or other business, not exceeding in value the amount specified in s. 861.33 (1) (a) 4.

(c) There is a presumption, consistent with s. 766.31, which may be rebutted, that all property of the deceased nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property of the deceased nonrecipient surviving spouse is subject to the department's claim under par. (a).

(3) Transmittal of property upon receipt of affidavit.

(a) Any property of a decedent that is transferred by a person who has possession of the property at the time of the decedent's death is subject to the right of the department to recover the amounts specified in sub. (2) (a). Upon request, the person who transferred the property shall provide to the department information about the property of the decedent that the person has transferred and information about the persons to whom the property was transferred.

(b) A person who possesses or receives property of a decedent shall transmit the property to the department, if the conditions in sub. (2) (a) 1. and, if applicable, sub. (2) (a) 2. are satisfied, upon receipt of an affidavit by a person designated by the secretary of health services to administer this section showing that the department paid on behalf of the decedent or the decedent's spouse recoverable benefits specified in sub. (2) (a). Upon transmittal, the person is released from any obligation to other creditors or heirs of the decedent.

(c) An affidavit under this subsection shall contain all of the following information:

1. That the department has a claim against the property that it intends to recover from the property.

2. The amount of and basis for the claim.

3. That the person may have a right to an administrative hearing under sub. (5m), which must be requested within 45 days after the department sent the affidavit, on the extent and fair market value of the recipient's interest in the property.

4. How to request an administrative hearing under sub. (5m).

5. That the person may request from the department a hardship waiver, if the person co-owned the property with the decedent or is a beneficiary of the property. This subdivision does not apply for the recovery of aid under s. 49.785.

6. How to request a hardship waiver under subd. 5. This subdivision does not apply for the recovery of aid under s. 49.785.

(4) Recovery against real property.

(a) If the condition in sub. (2) (a) 1. is satisfied, the department shall have a lien in the amount that it may recover under sub. (2) (a) on any interest in any property of the decedent that is real property, including a home, as defined in s. 49.496 (1) (b). The department may record the lien in the office of the register of deeds of the county in which the real property is located.

(b) Except as provided in par. (bm), the department may enforce a lien under par. (a) by foreclosure in the same manner as a mortgage on real property, unless any of the following is alive:

1. The decedent's spouse.

2. A child of the decedent if the child is under age 21 or disabled, as defined in s. 49.468 (1) (a) 1.

(bm) The department may enforce a lien under par. (a) for the recovery of aid under s. 49.785 by foreclosure in the same manner as a mortgage on real property regardless of whether the decedent's spouse or any child of the decedent is alive.

(c) All of the following apply to a lien under par. (a) that the department may not enforce because of par. (b):

1. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.

2. The department shall release the lien if any of the following applies:

a. The recipient's surviving spouse or child who is under age 21 or disabled sells the property for fair market value, as described in sub. (5c) (d), during the spouse's or child's lifetime.

b. The recipient's surviving spouse or child who is under age 21 or disabled transfers the property for less than fair market value, as described in sub. (5c) (d), during the spouse's or child's lifetime, the transferee sells the property during the spouse's or child's lifetime and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.

c. The surviving owner or transferee of the property, who is not the recipient's surviving spouse or child who is under age 21 or disabled, sells the property during the lifetime of the recipient's surviving spouse or child who is under age 21 or disabled and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.

(4m) Allowable costs of sale of real property.

(a) Subject to par. (b), if any property of a decedent that is real property has been sold after the death of the decedent, only the following reasonable expenses, if any, incurred in preserving or disposing of the real property may be deducted from the sale proceeds that the department may recover:

1. Closing costs of sale, including reasonable attorney fees of the seller, the cost of title insurance, and recording costs.

2. Property insurance premiums.

3. Property taxes due.

4. Utility costs necessary to preserve the property.

5. Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired.

(b) Any expense under par. (a) may be deducted from the sale proceeds only if it is documented and approved by the department and it was not incurred while any other individual was living on the property.

(5) Other valid claims. If a person has a valid claim against property of the decedent that would have a higher priority under s. 859.25 (1) if the property were subject to administration than the department would have under s. 859.25 (1) (e) and the person demands payment in writing within one year of the date on which the property was transmitted to the department, the department shall pay to the person the value of the property collected under sub. (3) or the amount of the claim, whichever is less. The department may authorize any person who possesses property of the decedent to honor higher priority claims with the decedent's property before transmitting property to the department.

(5c) Value of recipient's interest. For purposes of determining the value of the recipient's interest in property of the decedent, all of the following apply:

(a) If the recipient held title to real property jointly with one or more persons other than his or her spouse, the recipient's interest in the real property is equal to the fractional interest that the recipient would have had in the property if the property had been held with the other owner or owners as tenants in common.

(b) If the recipient held title to personal property jointly with one or more persons other than his or her spouse, the recipient's interest in the personal property is equal to either of the following:

1. The percentage interest that was attributed to the recipient when his or her eligibility for public assistance was determined.

2. If the percentage interest was not determined as provided in subd. 1., the fractional interest that the recipient would have had in the property if the property had been held with the other co-owner or co-owners as tenants in common.

(c) If the recipient held a life estate in real property, the recipient's interest is equal to the recipient's percentage of ownership in the property based on the recipient's age on the date of death and calculated using the fair market value of the property and life estate-remainderman tables used by the department to value life estates for purposes of determining eligibility for Medical Assistance.

(d) A property's fair market value is the price that a willing buyer would pay a willing seller for the purchase of the property. The burden of proof for establishing a property's fair market value is on the surviving owners or beneficiaries, or their representatives. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.

(5m) Fair hearing. A person who has possession of any property of the decedent, or who receives an affidavit from the department under sub. (3) (c) for transmittal of any property of the decedent, is entitled to and may, within 45 days after the affidavit was sent, request a departmental fair hearing on the value of the property and the extent of the recipient's interest in the property, if the property is not being transferred under s. 867.03 or through formal or informal administration of the decedent's estate.

(5r) Action or order to enforce recovery.

(a) If, after receipt of an affidavit under sub. (3), a person who possesses property of a decedent does not transmit the property to the department or timely request a hearing, the department may bring an action to enforce its right to collect amounts specified in sub. (2) (a) from the property or may issue an order to compel transmittal of the property. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a class 3 proceeding, as defined in s. 227.01 (3) (c), under ch. 227 by filing a request for appeal, within 30 days after the date of the order, with the division of hearings and appeals created under s. 15.103 (1). The date on which the division of hearings and appeals receives the request for appeal shall be the date of service. The only issue at the hearing shall be whether the person has transmitted the property to the department. The decision of the division of hearings and appeals shall be the final decision of the department.

(b) If any person named in an order to compel transmittal of property issued under par. (a) fails to transmit the property under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a certified copy of the order to the circuit court for any county. The sworn statement of the secretary shall be evidence of the department's right to collect amounts specified in sub. (2) (a) from the property and of the person's failure to transmit the property to the department. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

(c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

(6) Payments from recovered amounts. From the appropriation under s. 20.435 (4) (im), with respect to funds collected by the department under sub. (2) related to medical assistance paid on behalf of the decedent or the decedent's spouse, the department shall pay claims under sub. (5), shall pay to the federal government from the amount recovered under this section and not paid out as claims under sub. (5) an amount equal to the amount of federal funds used to pay the benefits recovered under this section and shall spend the remainder of the amount recovered under this section for medical assistance benefits under subch. IV.

(7) Rules for hardship waiver. The department shall promulgate rules establishing standards to determine 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 the application of this section in that case. This subsection does not apply with respect to the recovery of aid under s. 49.785.

History: 2013 a. 20 ss. 1222, 2305, 2307, 2308, 2310 to 2312, 2314 to 2317; 2013 a. 92; 2013 a. 151 s. 28; 2015 a. 55; 2019 a. 9.