DHA Case No. MGE 185074 (Wis. Div. Hearings and Appeals March 14, 2018) (DHS)  ↓ Download PDF

In this straightforward decision, the petitioner owned home property in Michigan but was admitted to a Wisconsin nursing home. Her Medicaid application was denied because the agency “did not receive timely verification of any circumstance that would exempt her Michigan home as an asset” (in the agency’s words). ALJ John P. Tedesco reversed, finding that the petitioner had indicated her intent to return home and stating: “Nothing in the rules of the program indicate that an exempt home must exist in the state of Wisconsin.”

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Preliminary Recitals

Pursuant to a petition filed on December 11, 2017, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Marinette County Department of Human Services regarding Medical Assistance (MA), a hearing was held on January 17, 2018, by telephone.

The issue for determination is whether the agency correctly denied petitioner’s application for long-term MA based on her owning property out of the state of Wisconsin.

There appeared at that time the following persons:



Menominee, MI 49858-9673

Petitioner’s Representative:
Attorney Jonathan P. Barstow
Barstow Elder Law Center SC
2149 Velp Ave Suite 205
Green Bay, WI 54303

Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: L. Pickl
Marinette County Department of Human Services
Wisconsin Job Center Suite B
1605 University Drive
Marinette, WI 54143

John P. Tedesco
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Marinette County, WI, residing in Luther Home Nursing Home.
  2. Petitioner owns a home in Menominee County, MI to which she intends to return when she completes her stay at a long-term care nursing home.
  3. Petitioner applied for Medicaid in September 2017.
  4. The agency counted the home in MI as an available asset and denied Medicaid.
  5. Petitioner appealed.
  6. Petitioner submitted as an exhibit (see #2) a statement asserting her intent to return to her home after her stay in the nursing home.


The Petitioner filed an appeal, because she disagrees with the agency’s denial of her September 2017 Medicaid application. It is the agency’s position that it correctly denied the Petitioner’s application for medical assistance, because it did not receive timely verification of any circumstance that would exempt her Michigan home as an asset.

The Medicaid Eligibility Handbook states the following with regard to applicants’ homes: Exempt Home Property

Although home property is an exempt asset under the conditions described in this subsection, there are limits on divesting home property (see Section Homestead Property).

Non-Institutionalized Person. For a person who is not residing in an institution, the home is exempt as long as the person resides in it or intends to return to it. There is no time limit for an intended return. The home remains exempt even if the person rents out part of it while he or she continues to reside there.

Institutionalized Person. When a person resides in an institution, the home is exempt if one of the following conditions is met:

  1. His or her spouse or dependent relative resides in the home. The dependency of the relative may be of any kind, such as financial or medical. The relative may be father, mother, daughter, son, grandson, granddaughter, in-laws, stepmother, stepfather, stepson, stepdaughter, grandmother, grandfather, aunt, uncle, sister, brother, stepbrother, stepsister, half-sister, half-brother, niece, nephew, or cousin.
  2. The institutionalized person expresses his or her intent to return to the home. If he or she is able to form an intent but unable to express it, determine his or her intent through other available evidence. Other evidence includes:
    1. His or her written statements.
    2. His or her oral statements made before incapacitation. Accept reports of these statements made by family members.
    3. Accept reports of his or her intent made by an authorized representative. If there is no evidence he or she disagrees with the statement, accept the authorized representative’s statement.

If he or she appears unable to form an intent but has not been judged incompetent by a court, accept a family member’s statement as evidence of his or her intent. If he or she has been judged incompetent, accept the intent statement of his or her guardian. Use the guardian’s intent statement even if it differs from the member’s. If neither condition #1 nor #2 is met, the property is no longer the principal residence and becomes non-home property.

Petitioner meets the requirements of Medicaid Eligibility Handbook Section 6.1. The Petitioner has provided a written statement indicating her intent to return home. See Exhibit 2. Nothing in the rules of the program indicate that an exempt home must exist in the state of Wisconsin. As such, her home was/is not a countable asset.

Conclusions of Law

The agency did not correctly deny the Petitioner’s September 25, 2017 application for benefits.



That within 10 days of this decision, the agency re-determine the Petitioner’s eligibility for Medicaid under the 9/25/17 application excluding her home as an asset.

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

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