DHA Case No. MGE 210319 (Wis. Div. of Hearings and Appeals October 20, 2023) (DHS) ↓ Download PDF

In general, all available assets are counted and counted assets are not reduced by outstanding debt. In this case, the petitioner had excess assets at her renewal and an overpayment claim that was pending but not yet determined, so she put the estimated amount to be owed into her attorney’s trust account. ALJ Brian Schneider concluded the agency was correct to count these funds as available. He also noted that an overpayment debt might not count as a medical/remedial expense that could be paid out of the petitioner’s cost share.

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Preliminary Recitals

Pursuant to a petition filed September 13, 2023, under Wis. Stat., §49.45(5), to review a decision by the Great Rivers IM Consortium to discontinue Medical Assistance (MA), a hearing was held on October 18, 2023, by telephone.

The issue for determination is whether petitioner’s assets are over the MA limit.



Petitioner’s Representative:
Atty. Peter E. Grosskopf
Grosskopf Law Office LLC
1324 West Clairemont Avenue, Suite 10
Eau Claire, WI 54701

Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Kristen Burstad
Great Rivers IM Consortium
1316 North 14Th Street
Superior, WI 54880

Brian C. Schneider
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Pepin County. It is noted that Douglas County is the lead county in the consortium, and Polk County, where Ms. Burstad works, is also part of the consortium.
  2. Petitioner has been eligible for nursing home MA while residing in the —. In August, 2023, the agency processed a renewal after informing petitioner that MA would end September 1 unless the renewal was completed.
  3. At the time of the renewal, petitioner had $18,522.95 in her bank account (the actual amount was higher but the agency did not count the monthly social security deposit). Most of the funds were from a lump sum — payment made in April, 2023. By a notice dated August 22, 2023, the agency informed petitioner that MA would be denied beginning September 1, 2023 because assets were over the limit.
  4. In July, 2023, petitioner’s son and attorney-in-fact was notified by the — that there likely was an overpayment of — benefits, and the amount of the overpayment was not yet determined. As of the date of this hearing the — still had not informed him of an overpayment amount.
  5. On September 12, 2023, petitioner’s son wrote a check to the — for $10,500 to cover September, 2023 costs. He placed $9,520 in petitioner’s attorney’s trust account after they estimated that to be the amount of the — overpayment.
  6. After being informed of those transactions, the agency still considered the $9,520 to be available as an asset, and the denial of MA remained in place.


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.

Therein lies the problem for petitioner. Her attorney-in-fact knows that an overpayment claim could be made by the —. However, that has not occurred, and the asset is still in petitioner’s control and is available for her care. It does not matter that the money is in Atty. Grosskopf’s trust account; as he stated during the hearing, he must follow the directive of the client as to the disbursement of the money, and petitioner’s son could request the money back at any time. As noted by the Department’s expert, the agency cannot act on future changes. See Agency Exhibit D. I must conclude that the agency correctly determined that the $9,650 remains an available asset, putting petitioner over the MA limit.

During the hearing I noted that if the money is spent down and the — claim comes later, it is possible that the repayment could reduce petitioner’s cost of care. After reviewing the MA Handbook, I am uncertain if I was correct. §27.7.7 of the Handbook allows a deduction from cost of care for medical or remedial expenses and payments for noncovered services. I am uncertain whether a repayment of — funds would be considered remedial expenses; that will have to be determined if and when the recovery actually occurs. For purposes of this appeal, the only issue is whether the money in the trust account is an available asset countable against the MA asset limit. It is.

Conclusions of Law

Funds available to petitioner cannot be excluded from the MA asset calculation because the — might seek recovery of funds in the future.



That the petition for review is hereby dismissed.

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

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