CWA 198273 (08/03/2020)
Medicaid-compliant annuity income not available to petitioner

DHA Case No. CWA 198273 (Wis. Div. of Hearings and Appeals August 3, 2020) (DHS) ↓ Download PDF

This brief decision is a straightforward application of the name-on-the-check rule. A Medicaid-compliant annuity that pays only to the community spouse is not income available to the insititutionalized spouse.

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Preliminary Recitals

Pursuant to a petition filed on March 10, 2020, under Wis. Admin. Code § HA 3.03, to review a decision by the Milwaukee Enrollment Services regarding Medical Assistance (MA), a hearing was held on May 26, 2020, by telephone.

The issue for determination is whether the annuity in question should be considered as income for petitioner.

There appeared at that time the following persons:



Petitioner’s Representative:

Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Milwaukee Enrollment Services
1220 W Vliet St
Milwaukee, WI 53205

John P. Tedesco
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Milwaukee County.
  2. Petitioner applied for MA on 12/5/19.
  3. Petitioner created an annuity on 10/25/19 with retirement savings.
  4. Payments will be made over the 48 months of petitioner’s life expectancy.
  5. Petitioner’s wife is the sole payee of the annuity.
  6. The State of WI Estate Recovery Program is named as the remainder beneficiary of the annuity.
  7. The creation of the annuity was not a divestment and is not available to petitioner.
  8. The agency denied the MA application due to the monthly income being available to petitioner.


At hearing, after the presentation of detailed testimony by petitioner, the agency representative agreed that the annuity in question should be considered as income solely for the community spouse if the petitioner is enrolled in long-term care Medicaid. The agency informed petitioner that a new application for longterm care Medicaid will need to be filed.

I do not determine an enrollment date or date of eligibility for long-term care or a waiver program in this decision. There is no record sufficient for me to alter the current state of affairs and petitioner withdrew the request for backdated enrollment. Based on the record at hearing, the petitioner should reapply for long-term care if he has not already. The agency has already agreed to apply the annuity for the community spouse and not for petitioner.

Conclusions of Law

The annuity in question must be counted as income only for the community spouse and not for the petitioner.



That this matter is remanded to the agency and the ADRC with instructions:

  1. to work with petitioner and his representatives redetermine LTC and waiver eligibility and enrollment by considering the annuity in question as income only for the community spouse and not for the petitioner;
  2. That the ADRC must effort with MilES to conclude this process within 10 days of this decision;

These actions must be completed within 10 days of this decision.

[Request for a rehearing and appeal to court instructions omitted.]

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