MGE 207488 (04/07/2023)
Appeal filed one day too late

DHA Case No. MGE 207488 (Wis. Div. of Hearings and Appeals April 7, 2023) (DHS) ↓ Download PDF

An appeal must be filed within 45 days of a Medicaid application denial for the Division of Hearings and Appeals to have jurisdiction. In this case, the petitioner’s denial notice was dated December 7, 2022 and identified an appeal deadline of January 23, 2023. The petitioner’s representative filed the appeal by fax on January 24. Noticing this issue for the first time while reviewing the record after the hearing, ALJ Peter McCombs concluded he lacked jurisdiction and dismissed the appeal.

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Preliminary Recitals

Pursuant to a petition filed on January 24, 2023, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Polk County Department of Social Services regarding Medical Assistance (MA), a hearing was held on March 8, 2023, by telephone.

The issue for determination is whether the petitioner timely appealed the agency’s denial of Petitioner’s application for MA enrollment due to assets exceeding program limits.

There appeared at that time the following persons:



Petitioner’s Representative:

Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Polk County Department of Social Services
100 Polk County Plaza, Suite 50
Balsam Lake, WI 54810

Peter McCombs
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Chippewa County.
  2. Petitioner’s husband, —, resides at the couples’ residence, and Petitioner presently resides in —, a community-based residential facility (CBRF).
  3. An application was received on September 29, 2022 for MA. After asset assessment and verifications were received, the case failed due to excess assets and the application was denied on October 26, 2022. (Exhibit R-A).
  4. The asset assessment related to the September 29, 2022 application determined that petitioner’s asset limit was $79,975.51 (Exhibit R-C). When verifications were received, — countable assets were calculated at $90,695.77 (Exhibit R-D). All verifications for this asset assessment were based on the October 2022 functional eligibility established by the Aging and Disability Resource Center (ADRC) (Exhibit R-E).
  5. The respondent processed a new MA request/application received on or about November 23,2022. At this time, a new asset assessment and new verifications were received. The case was again denied by the agency due to excess assets on December 7, 2022 (Exhibit R-B).
  6. Pertaining to the November 2022 MA application, a new functional eligibility screen was received by the agency showing a date of functional eligibility of November 28, 2022 (Exhibit R-G). A new asset limit was determined in the amount of $55,010.19 (Exhibit R-H). Petitioner’s countable assets were calculated at $106.020.36 (Exhibit R-I).
  7. Petitioner’s assets increased between the asset assessments completed in October and late November due to money pulled from the IRA of petitioner’s spouse and deposited into a joint checking account co-owned by petitioner. This IRA was treated during both asset assessments as an unavailable asset and did not count towards any of the calculations. However, when the funds pulled from the IRA were placed into the joint checking account, they became part of the petitioner’s countable liquid assets (Exhibit R-J).
  8. Petitioner filed an appeal of the MA denial on January 24, 2023, via facsimile received by the Division of Hearings and Appeals on that same date. (Exhibit P-1).


Generally, a person cannot have more than $2,000 in assets and still be eligible for medical assistance. Wis. Stats., § 49.47(4). However, in order to prevent the spouse of an institutionalized person from becoming impoverished, the institutionalized spouse can allocate assets to the spouse who remains in the community. See Wis. Stat. § 49.455. The amount that can be allocated depends upon the amount of assets the couple has when the agency performs an assessment.

The law currently allows couples whose liquid assets are between $100,000 and $274,800 to assign half of the assets to the community spouse. Those whose assets are below $100,000 can assign $50,000 to the spouse in the community. Wis. Stat. § 49.455(6)(b); Medicaid Eligibility Handbook (MEH) § 18.4.3. Because the applicant can also have $2,000 in assets, this amount is added to the total amount of assets that a couple could have and one would still be eligible for medical assistance.

The primary issue raised by petitioner is whether the agency properly determined that she exceeded the asset limit for purposes of eligibility for MA. In review of the record, I became aware post-hearing that a preliminary issue would first need to be addressed, i.e., the timeliness of the appeal filing.

A hearing officer can only hear cases on the merits if there is jurisdiction to do so. There is no jurisdiction if a hearing request is untimely, even by a single day. An appeal of a negative action by the agency concerning MA must be filed within 45 days of the date of the action. See Wis. Stat. §§49.45(5) and 49.21(1). A negative action includes the denial of an application, the reduction or termination of an ongoing case, or an overpayment. The petitioner’s appeal was filed on January 24, 2023, which is one day after the expiration of the appeal timeframe. The December 7, 2023 notice issued to petitioner explicitly identified the appeal deadline of January 23, 2023. Thus, petitioner’s appeal is untimely, and no jurisdiction exists for considering the merits of the case.

It is the long-standing position of the Division of Hearings & Appeals that the Division’s hearing examiners lack the authority to render a decision on equitable arguments. See, Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F.Supp. 540, 545 (E.D. Wis.1977). In other words, I cannot change the outcome here based on any fairness argument. This office must limit its review to the law as set forth in statutes, federal regulations, and administrative code provisions.

Nothing in this Decision precludes petitioner from applying for MA benefits in the future.

Conclusions of Law

Jurisdiction is not present to consider the merits of petitioner’s appeal of the agency’s denial of her MA application because petitioner did not timely file her appeal.



That the petitioner’s appeal is dismissed.

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

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