MGE 143573 (03/13/2013)
Community Waivers benefits retroactive one year because of prior appeal

DHA Case No. MGE 143573 (Wis. Div. of Hearings and Appeals March 13, 2013) (DHS)  ↓ Download PDF

This unusual case is fact-specific, involving the interplay of Community Waiver benefits, the community spouse asset share, and the timing of getting a functional screen from the Aging and Disability Resource Center (ADRC).

The issue was that the petitioner applied for waiver benefits on February 28, 2012, but did not contact the ADRC for a functional screen. That application was denied and the petitioner appealed. The petitioner apparently won the appeal. The ALJ ordered: “The petitioner shall file any paperwork necessary with the ADRC to seek MA-Waiver benefits. Any Waiver benefits provided shall be based upon the February 28, 2012, application date.” (Emphasis added.)

Remarkably, the petitioner then waited an entire year before contacting the ADRC. Of course, the agency did not want to provide retroactive benefits for an entire year. But ALJ Michael O’Brien agreed with the petitioner in this appeal, finding the previous fair hearing decision’s order to require benefits retroactive to the February 28, 2012 application date.

Note: This decision had a number of typos, which I have corrected below in brackets. See the PDF of the original decision for the original text.

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Preliminary Recitals

Pursuant to a petition filed August 30, 2012, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Chippewa County Department of Human Services in regard to Medical Assistance, a hearing was held on November 28, 2012, at Chippewa Falls, Wisconsin.

The issue for determination is when the petitioner’s eligibility for medical assistance begins.

There appeared at that time and place the following persons:



Department of Health Services
1 West Wilson Street
Madison, Wisconsin 53703
By: Kelly Goettl
Chippewa County Department of Human Services
711 N. Bridge Street
Chippewa Falls, WI 54729-1877

Michael D. O’Brien
Division of Hearings and Appeals

Findings of Fact

  1. The petitioner (CARES # —) is a resident of Chippewa County.
  2. The petitioner lives in an assisted living facility. She first applied for Medical Assistance-Waiver benefits on May 14, 2011. At that time, she and her husband had over $240,000 in assets.
  3. The petitioner reapplied for medical assistance on February 28, 2012. The county agency denied the application on April 25, 2012. That denial was overturned by DHA Decision No. MRA/140930.
  4. DHA Decision No. MRA/140930 ordered the agency to determine the petitioner’s community spouse asset share as of Mar[ch] 13, 2011, and stated: “The petitioner shall file any paperwork necessary with the ADRC to seek MA-Waiver benefits. Any Waiver benefits provided shall be based upon the February 28, 2012, application date.”
  5. The petitioner first met with the ADRC on February 28, 2013. She was found eligible for the program as of March 14, 2013.


The petitioner has lived in an assisted living facility since at least May of 2011. She first applied for medical assistance that month, but the county agency rejected her application because she and her husband had over $240,000 in countable assets, which is well above the program’s $2,000 limit. Wis. Stat. § 49.47(4)(b).

To prevent a spouse living in the community from being impoverished, both Wisconsin and federal law allow the $2,000 limit to be increased where one of the spouses is institutionalized. Wis. Stat. § 49.455. A person receiving medical assistance under one of the MA-Waiver programs is considered institutionalized. Medicaid Eligibility Handbook, § 27.4.1. and 42 U.S.C. § 1396[r]-5. The amount of assets over $2,000 that the couple can possess and still be found eligible for medical assistance is referred to as the “community spouse asset share.” Medicaid Eligibility Handbook, § 18.2.2. For an MA-Waiver applicant, this amount varies with the total assets the couple holds at the time of the original application. Couples with up to $100,000 are allowed to retain $50,000, those with between $100,000 and $227,280 are allowed to retain half of their assets, and those with over $227,280 are allowed to retain $113,640. Medicaid Eligibility Handbook, § 18.4.3. In addition, the $2,000 limit allowed under Wis. Stat. § 49.47(4)(b) is added to this amount.

The petitioner reapplied on February 28, 2012, seeking MA-Waiver benefits. By then, she and her husband had only about $100,000 in assets. She asked that she receive spousal impoverishment protection with her assets determined as of her May 2011 application date. The agency denied this request because it stated that she did not specifically ask for Waiver benefits when she first applied, and she had not sought the benefits through the Aging and Disability Resources Center (ADRC). She appealed this denial and Decision No. MRA/140930 ordered the agency to determine her community spouse asset share as of May 13, 2011.

The decision allowed the petitioner to file a new appeal if [she] disagreed with the agency’s decision. Her eligibility was delayed while the agency sought verification of her assets and waited for her to contact the ADRC. The agency eventually agreed that she had verified her assets but did not find her eligible because she had not contacted the ADRC. Her attorney contends that he was never notified of this requirement and contends that it does not exist. Nevertheless, on February 28, 2013, she did go to the ADRC. The agency contends that her eligibility should not begin until March 14, 2013, when the ADRC enrolled her. Her attorney contends that it should begin on February 1, 2012, when her and her husband’s assets fell below the spousal impoverishment limit.

The petitioner was notified that she must go to the ADRC. Her failure to go there earlier was one of the reasons the county agency denied her February 2012 application. In addition, on March 28, [2012], the agency notified her corporate guardian that it had no record of her contacting the ADRC for Waiver benefits. Finally, DHA Decision No. MRA/140930 stated: “The petitioner shall file any paperwork necessary with the ADRC to seek MA-Waiver benefits.” On the other hand, while waiting for this matter to be resolved, the petitioner filed a new application for medical assistance on August 1, 2012. The agency denied that application because her income and assets exceeded the program’s limit and she had not properly verified her financial information; it said nothing about failing to go to the ADRC.

Ultimately, this is the same matter as was ruled on in DHA Decision No. MRA/140930: that matter remanded the denial of the February 2012 application to the agency for further consideration. Because that application is still the one under consideration, that decision’s language, which has not been appealed or reversed, applies to the current situation. That decision specifically held: “Any Waiver benefits provided shall be based upon the February 28, 2012, application date.” Under that decision’s language, the agency properly delayed determining whether the petitioner was eligible for benefits until she went to the ADRC. However, once she was found eligible, the decision requires that her eligibility must be made retroactive based upon her application date. It is uncontested that her assets were within the spousal impoverishment limit that month, so her eligibility began on February 1, 2012.

Conclusions of Law

The petitioner met all eligibility requirement[s] for medical assistance as of February 1, 2012.



That this matter is remanded to the county agency with instructions that within 10 days of the date of this decision it take all steps necessary to find the petitioner eligible for medical assistance retroactive to February 1, 2012.

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

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