MDV 40/68902 (05/18/2005)
Homestead transferred to caretaker child of recipient in assisted living

DHA Case No. MDV 40/68902 (Wis. Div. of Hearings and Appeals May 18, 2005) (DHS) ↓ Download PDF

An institutionalized person may transfer homestead property to their child if the child lived with them and provided care keeping them out of an institution for at least two years immediately before becoming institutionalized. In this case, the petitioner received MA while living in her own home, then later moved to an assisted living facility and transferred her home to her son. ALJ Joseph A. Nowick concluded the requirements for the caretaker child exception to divestment were met.

Note: The facts and reasoning in this case are sparse. Compare it with MDV 155403, a later case showing how a move to an assisted living facility can make a recipient ineligible for the caretaker child exception to divestment. The key difference (in my opinion) is that in this case, the petitioner first enrolled in Medicaid while still living at home.

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This decision was published with support from the Elder Law & Special Needs Section of the State Bar of Wisconsin and the Wisconsin chapter of the National Academy of Elder Law Attorneys. Thanks also to Attorney Andy Falkowski, who donated this decision from his file.

Preliminary Recitals

Pursuant to a petition filed March 18, 2005, under Wis. Stat. §49.45(5) and Wis. Adm. Code §HA 3.03(1), to review a decision by the Milwaukee County Dept. of Human Services in regard to Medical Assistance (MA), a hearing was held on May 12, 2005, at Milwaukee, Wisconsin.

The issue for determination is whether the petitioner divested her home to become eligible for MA.

There appeared at that time and place the following persons:



Represented by:
John E. Talsky
Pyramax Bank Building
7001 W. Edgerton Avenue
Greenfield, WI 53220

Wisconsin Department of Health and Family Services
Division of Health Care Financing
1 West Wilson Street, Room 250
P.O. Box 309
Madison, WI 53707-0309
By: Karla Fajembola, ES Supervisor
Milwaukee County Dept Of Human Services
1220 W. Vliet St, 2Nd Floor
Milwaukee, WI 53205

Joseph A. Nowick
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (SSN —, CARES # —) is a resident of Milwaukee County. She has been certified for MA since at least October, 2002.
  2. The petitioner had been living in her own home until she moved to OC Assisted Living Center in July, 2004
  3. Prior to that move, the petitioner lived in the same home with her son and his spouse. They provided care for the petitioner so that her entry into OC was significantly delayed. The living arrangement existed for at least the two years immediately prior to the petitioner’s move. Her physician verified this in a notarized statement. (See Exhibit #1.)
  4. In August, 2004, petitioner quit claimed her home with a net value of $54,762 to her son.
  5. On March 9, 2005, the county agency sent a notice to the petitioner stating that she was ineligible for MA for a period of 8 months, starting on September 1, 2004 and ending on May 31, 2005, due to a divestment of assets. Benefits were continued pending this hearing.


A divestment is a transfer of assets for less than fair market value. Wis. Stat. Sec. 49.453(2)(a); MA Handbook, Appendix 14.2.1. A divestment or divestments made within 36 months (60 months if the divestment is to an irrevocable trust) before an application for nursing home MA may cause ineligibility for that type of MA. Wis. Stat. Sec. 49.453(l)(t); Handbook, App. 14.3.0. The ineligibility is only for nursing home care; divestment does not impact on eligibility for other medical services such as medical care, medications, and medical equipment (all of which are known as “MA card services” in the parlance). The penalty period is specified in Wis. Stat. Sec. 49.453(3) to be the number of months determined by dividing the value of property divested by the average monthly cost of nursing facility services. MA Handbook, Appendix 14.5.0. In this case, the agency calculated a divestment of $54,762, with a disqualification period of 8 months, starting on September 1, 2004 and ending on May 31, 2005.

It was undisputed that petitioner transferred a home with a net value of $54,762 to her son while she was certified for MA. The parties are also in agreement as to the length of the ineligibility period that would ensue if the transfer were a divestment. The evidence and testimony admitted during the hearing demonstrate that petitioner’s son did not pay anything in return for the home. Thus, the only remaining issue is whether the transfer of petitioner’s home to her son met an exception to the divestment rules.

One exception to the divestment rules exists if the institutionalized person or his spouse divests homestead property to:

d. A minor or adult child of the institutionalized person. The child must have

  • Been residing in the person’s home for at least 2 years immediately before the person became institutionalized, and
  • Provided care to him/her which pennitted him/her to reside at home rather than in the institution, or which permitted him/her to avoid becoming a community waivers participant. This care must have been provided for the entire 2 years immediately before the person became institutionalized. Get a notarized statement that the person was able to remain in his/her home because of the care provided by the child.

The statement must be from his/her physician or from someone else who has personal knowledge of his/her living circumstances. A notarized statement from the child does not satisfy these requirements.

See the Wisconsin Medicaid Eligibility Handbook, §4.1.4. See also Wis. Admin. Code §HSS 103.065(4)(b). Petitioner’s son, who was the grantee of the home in question, testified that he resided in the home for at least 2 years prior to his mother’s going to Oak Crest. He also testified that he and his wife had provided care for his mother in the form of cooking, washing of clothes, personal cares and other caretaker tasks. An affidavit was submitted from the petitioner’s doctor stating that the petitioner would have had to go into an institution much earlier had the son not provided the care in question. See Exhibit #1.

The overall testimony and documentation presented at hearing support a conclusion that: 1) the petitioner’s son resided with the petitioner in the home for at least 2 years, 2) that the petitioner’s son provided care to petitioner that allowed her to reside in the home rather than in the institution, and 3) that the care was provided in the home for the entire 2 years immediately before petitioner became institutionalized. The criteria for the above-described exception to the divestment rules were met in this case.

Conclusions of Law

The petitioner’s transfer of her home to her son falls within an exception to the divestment rules.



That the petition herein be remanded to the county agency with instructions to remove the divestment from the petitioner’s case and continue her certification for MA, if she is otherwise eligible. This is to be done within 10 days of the date of this Decision.

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

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