DHA Case No. MGE 201844 (Wis. Div. of Hearings and Appeals July 12, 2021) (DHS) ↓ Download PDF

In determining patient liability, the Medicaid Eligibility Handbook allows a limited number of deductions from income. In this case, the petitioner could not afford to pay both his patient liability and his bankruptcy settlement. ALJ Kelly Cochrane could find no legal authority to allow a deduction for this expense, and noted that this case would not qualify for an undue hardship exception, either.

Have comments, corrections, or feedback? A fair hearing decision that should be published?
✉️ Email feedback.

Get email summaries of new decisions:

Preliminary Recitals

Pursuant to a petition filed on April 21, 2021, under Wis. Stat. §49.45(5), and Wis. Admin. Code §HA 3.03(1), to review a decision by the Waukesha County Health and Human Services Department (the agency) regarding Medical Assistance (MA), a hearing was held on June 10, 2021, by telephone.

The issues for determination are 1) whether the agency correctly determined the petitioner’s patient liability; and 2) whether the petitioner is eligible for an undue hardship waiver.

There appeared at that time the following persons:



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —, ESS
Waukesha County Health and Human Services
514 Riverview Avenue
Waukesha, WI 53188

Kelly Cochrane
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Waukesha County.
  2. On March 30, 2021, the agency sent a notice to the petitioner stating that effective March 1, 2021 he was enrolled in MA (Nursing Home Long Term Care) and had a patient liability of $2194.


After an institutionalized person has been found eligible for MA, the agency must calculate a “cost of care” or patient liability. Patient liability is the amount that s/he will pay each month to partially offset the cost of nursing home services with the MA program paying the balance. The liability amount is typically calculated by subtracting from the recipient’s income, any health insurance premium costs, support payment costs, home maintenance costs, expenses for court-ordered guardians or protective placements, and a statutory personal needs allowance. The funds remaining after these deductions are considered is determined to be available for payment to the nursing home by the recipient. See Medicaid Eligibility Handbook (MA Handbook), §27.7. 1 (Exhibit 7); see also Wis. Stat. §49.45(7)(a), Wis. Adm. Code § DHS 103.07(1)(d), and 42 CFR §435.725.

Petitioner does not dispute the calculation per se, but rather is asking that the petitioner’s bankruptcy settlement payments be considered an allowable deduction to the patient liability because he cannot afford to pay both. Unfortunately for the petitioner, the law and policy clearly explain the costs which may be reviewed in determining an individual’s patient liability toward his cost of care. Bankruptcy payments are not specifically listed as an allowable deduction. I can find no authority in federal law or in state law or policy for a deduction from petitioner’s gross income for this expense when determining the patient liability.

Further, while I understand the patient liability may cause a hardship for petitioner, the hardship exceptions do not apply to petitioner’s case. Undue hardship exceptions can be made only when eligibility for long-term care services is denied or terminated for divestment issues, spousal impoverishment issues, or in cases involving situations where the member’s home has an equity interest of more than $750,000. See MA Handbook §22.4.1. These do not apply to the petitioner’s case. Beyond the legal allowances, petitioner’s representative’s argument is an equitable argument, and I lack the equitable powers (the ability to change the course of the action based on any fairness argument) to grant the relief sought. See Oneida County v. Converse, 180 Wis.2nd 120, 125, 508 N.W.2d 416 (1993).

Conclusions of Law

The agency correctly determined the petitioner’s patient liability; and
The petitioner is not eligible for an undue hardship waiver.



That the petition for review herein is dismissed.

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

Leave a Reply

Your email address will not be published. Required fields are marked *