DHA Case No. MGE 199939 (Wis. Div. of Hearings and Appeals April 19, 2021) (DHS) ↓ Download PDF
Non-homestead real estate is countable unless it is listed for sale with a realtor. In this unusual case, the petitioner owned some land with a mobile home, but realtors refused to list it because of its condition (“Hazmat suit” and “toxic waste removal” were some of their descriptions). Although the agency valued the home at $0, the value of the land still exceeded the $2,000 asset limit. The Secretary of the Department exercised its discretion to make an exception to the usual rule for this case.
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The attached proposed decision of the hearing examiner dated February 2, 2021, is modified as follows and, as such, is hereby adopted as the final order of the Department.
Pursuant to a petition filed September 18, 2020, under Wis. Stat., §49.45(5), to review a decision by the Dunn County Dept. of Health Services to deny Medical Assistance (MA), a hearing was held on January 27, 2021, by telephone. Hearings set for November 4, December 7, 2020, and January 4, 2021 were rescheduled at the petitioner’s request.
The issue for determination is whether the agency correctly counted property as an asset.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
Dunn County Dept. of Health Services
PO Box 470
Menomonie, WI 54751
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES —) is a resident of Polk County. Dunn County DSS handles Polk County cases as part of the Great Rivers Economic Consortium.
- An application for nursing home MA was filed on petitioner’s behalf on May 1, 2020. It was reported that petitioner’s only asset was her home, and that she would be unable to return to live there. Since there was no evidence the home was listed for sale, the application was denied by a letter dated July 17, 2020 because assets were over the limit.
- Another application was filed on July 14, 2020. A request for verification was sent asking for proof that the home was listed for sale, and on August 14, 2020 the agency denied the application because the proof of listing was not received.
- Petitioner’s home consisted of a mobile home and the land where it stood. The land was assessed at $7,800 and the improvement at $17,900.
- Petitioner appealed the denial on September 18, 2020. The appeal noted that three realtors refused to list the property for sale because of its condition. Two letters/notes from realtors were provided in the hearing exhibits. Realtor — opined that the property had no value and that it would take a company specializing in toxic waste removal to clean it. Realtor — opined that it would have to be cleaned by a Hazmat suit crew and that it could not be listed because nobody would go on the property until it was cleaned.
- The economic support agency removed the value of the improvement as an asset, but retained the $7,800 land value as an available asset against the MA asset limit. Thus petitioner remained ineligible for MA because the land value was over $2,000 and the property was not listed for sale.
The MA asset limit for an individual is $2,000. Wis. Stat., § 49.47(4)(b)3g. If assets are above that limit, the person is not eligible for MA. The statute does not allow for outstanding debts to be deducted from assets, nor does it provide any exceptions for unusual situations.
Wis. Admin. Code, § DHS 103.06(5)(c) provides:
If the total value of non-homestead property and non-exempt assets exceeds the asset limit, the person who owns the non-homestead property shall list the property for sale with a licensed realtor at a price which the realtor certifies as appropriate. If the property is listed for sale, it may not be counted as an asset. When the property is sold, the net proceeds shall be counted as an asset.
See also MA Handbook, § 16.2.2. The Handbook section also provides general availability policies:
Consider an asset as unavailable if either:
- The member lacks the ability to provide legal access to the assets, and
- No one else can access the assets, and
- A process has been started to get legal access to the assets.
While that provision specifically applies to situations not involving real property, I include it to show that the Department has an extremely strict view on when an asset can be considered unavailable. It describes situations where the person does not have legal access to the asset. Petitioner has legal access to sell her property.
The situation here is extremely tricky. It is true that the property has not been listed for sale, but there is evidence that at least two real estate agents refuse to list it due to its hazardous condition. It is such a rare situation. The property is not listed for sale because realtors refuse to list it. In the midst of a pandemic it is unknown whether clean-up of the property can be arranged and how expensive it would be. Petitioner’s daughter lives in Chicago, making it even more difficult to make arrangements. In the meantime petitioner’s nursing home has been providing care for upwards to a year with no compensation. The Department’s Secretary has the discretion to grant eligibility in this unusual case.
Conclusions of Law
The Secretary determines Petitioner is eligible for MA despite owning unsaleable non-exempt real property valued higher than $2,000 that has not been listed for sale.
THEREFORE, it is
That the matter be remanded to the agency to re-determine petitioner’s eligibility, based on the date of her first application, removing the property as a countable asset. The agency shall also issue a new notice of decision regarding this redetermination. These actions shall be taken within 10 days of this Decision.[Request for a rehearing and appeal to court instructions omitted.] [Original proposed decision of ALJ omitted, which was substantively identical. See the attached PDF to compare.]