MGE 218412 (08/25/2025)
Multiple attempts to get spouse’s cooperation required for undue hardship waiver

Preliminary Recitals

Pursuant to a petition filed on May 27, 2025, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Dane County Department of Human Services regarding Medical Assistance (MA), a hearing was held on July 10, 2025, by telephone. Following the hearing, the prefix of the case number was changed from MQB to MGE to accurately reflect the issue in dispute.

The issue for determination is whether Petitioner meets the requirements for an undue hardship waiver.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:
—

Petitioner’s Representative:
Attorney Brenda Haskins
Haskins, Main & Devine LLC
5113 Monona Dr
Monona, WI 53716

Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Emily Clements
Dane County Department of Human Services
1819 Aberg Avenue
Suite D
Madison, WI 53704-6343

ADMINISTRATIVE LAW JUDGE:
Teresa A. Perez
Division of Hearings and Appeals

Findings of Fact

1. Petitioner (CARES # —) is a married resident of Dane County; however, he and his wife, —, have lived separately and been largely estranged for several years.
2. Petitioner was admitted to —, a skilled nursing facility, on January 21, 2025 after suffering a stroke; he was discharged to his adult son’s home on May 1, 2025. As of June 1, 2025, Petitioner had an unpaid balance of $14,246 for the services provided by —.
3. On February 20, 2025, Petitioner filed an application for Institutional Medical Assistance (“MA”) and requested that coverage begin as of February 1, 2025.
4. On March 3, 2025, the agency sent Petitioner a request for his spouse to sign his MA application and a request for verification of his spouse’s employment income.
5. Petitioner was unable to comply with the agency’s request for a spousal signature and verification of her financial information because she refused to cooperate.
6. On March 25, 2025, the agency denied Petitioner’s February 20, 2025 MA application because Petitioner did not provide verification of his spouse’s income or an application with her signature.
7. Petitioner submitted an Undue Hardship Waiver Request form to the agency on February 20, 2025, the same day he filed his MA application, in anticipation that his spouse would refuse to cooperate. The agency did not process that request because the agency had not yet processed or denied Petitioner’s application.
8. Petitioner filed two additional Undue Hardship Waiver Request forms—one on April 9, 2025 and the other on May 13, 2025.
9. The Undue Hardship Waiver Request forms (DHS Form F-10193) filed by Petitioner’s authorized representative in February, April, and May 2025 included the following relevant instructions:
   

   SECTION 1: PROOF (REQUIRED)

   You must submit the two types of proof (1 and 2 listed below).

   1. A statement signed by you (or your authorized representative) describes the following:
      • If you were denied Medicaid long-term care services coverage because you have a community spouse who refuses to cooperate with the application or renewal process, explain how you have tried to get cooperation from him or her.
        AND
   2. You must submit one of the following documents (a. or b.) that show you will have an undue hardship by not being able to get Medicaid long-term care coverage.
      1. If you are currently residing in a medical facility, you must submit one (i. or ii.) of the following:
         1. A copy of the notice from the facility that states both of the following:
            • The date you are required to leave the facility.
            • The location you will be going to when you leave the medical facility.
         2. Proof that if the undue hardship request is not approved, you will not be able to pay for one of the following:
            • Medical care, which would put your health or life at risk
            • Food
            • Clothing
            • Shelter
            • Other necessities of life
      2. If you applied for any of these programs: Home and Community-Based Waivers (HCBW), Family Care, Program of All-Inclusive Care for the Elderly (PACE), Partnership, or IRIS (Include, Respect, I Self-Direct), you must submit both of the following documents:
         • An estimate of the cost of the Medicaid long-term care services needed to meet your medical and remedial needs.
         • An estimate of your monthly costs for food, shelter, clothing, and other necessities of life.

   SECTION 2: DESCRIPTION (REQUIRED)

   You must describe … how the denial of Medicaid long-term care services coverage … will endanger your health or life or how you will not be able to get food, clothing, shelter, or other necessities of life.

10. The Undue Hardship Waiver Request filed by Petitioner’s authorized representative in April 2025 and May 2025 included typed statements that Petitioner’s wife had filed for divorce, that neither Petitioner nor his daughter / financial power of attorney had been able to obtain financial information from his spouse “despite [their] best efforts”, and that the spouse’s lack of cooperation put his health in serious jeopardy because he does not have the ability to pay for services he needs. Both requests also included a copy of on-line circuit court records to show that Petitioner’s spouse had petitioned for a divorce in January 2025.
11. In addition to the information and documentation described in Finding of Fact No. 10, the May 2025 Undue Hardship Request that was filed by Petitioner’s authorized representative included a copy of a text exchange between Petitioner and his spouse. In that text exchange, Petitioner requested information regarding his spouse’s finances and indicated that he was doing so in order to complete his application for MA. She replied: “No … I cannot afford Medicaid … I can’t afford what I have going on … What the [expletive]!”
12. Neither the April 2025 nor the May 2025 Undue Hardship Requests included any of the following: a notice from — indicating that it intended to require Petitioner to leave as of a particular date; proof that Petitioner would be unable to pay for medical care which would put his life at risk, food, clothing, shelter, or other necessities of life if the undue hardship waiver were not approved; an estimate of costs of long-term care services needed to meet Petitioner’s medical and remedial needs; or an estimate of Petitioner’s monthly costs for food, shelter, clothing, and other necessities of life.
13. The agency issued written denials of Petitioner’s second and third Undue Hardship Requests on April 25, 2025 and May 22, 2025 respectively because Petitioner did not provide documentation of multiple attempts to obtain cooperation from Petitioner’s spouse and because insufficient financial information was included.
14. On May 27, 2025, Petitioner filed a request for fair hearing regarding the agency’s denial of his Undue Hardship Request and seeking Institutional Medical Assistance to be backdated to February 1, 2025.

Discussion

A married applicant for Institutional Medical Assistance whose spouse resides in the community must sign their application for benefits and must also have their spouse sign that application unless someone else is authorized to sign for one or both of them. Medicaid Eligibility Handbook (MEH), §2.5.3 and 2.5.1. If the applicant is unable to obtain their spouse’s signature or the signature of their spouse’s authorized representative, the application will be denied. However, an applicant in those circumstances may file an undue hardship request to have the spousal signature requirement waived. MEH § 22.4, et. seq.

To be granted an undue hardship waiver, an individual must prove not only that their spouse refuses to cooperate by signing the Medicaid application but also that denial of Medicaid benefits will cause undue hardship. MEH §22.4.5. Medical Assistance policy describes undue hardship as follows:

Undue hardship occurs if denial or termination of an applicant’s or member’s eligibility for coverage of long-term care services would deprive the person of any of the following:

• Medical care, which then endangers the person’s health or life
• Food
• Clothing
• Shelter
• Other necessities of life

See MEH § 22.4.1

When an applicant’s spouse refuses to cooperate with the application process, the applicant may file an undue hardship request by either completing and filing the Undue Hardship Waiver Request form developed by the Department of Health Services, or by filing a written and signed request that includes the following:

• A statement signed by the applicant or member (or his or her authorized representative) which describes the following:
  • In cases where a community spouse refuses to cooperate with the application process, documentation of all attempts to get cooperation from the community spouse,
• Proof that an undue hardship would exist if eligibility is terminated or denied … as follows:
• If the applicant or member is currently institutionalized, he or she must submit a copy of the notification from the long term care facility which states both of the following:
  • The date of involuntary discharge
  • An alternative placement location
• Or other proof that if the undue hardship waiver is not approved, the applicant or member will:
  • Not receive medical care resulting in his or hers health or life to be endangered
  • He or she will not have food, clothing, shelter, or other necessities of life.
• If the applicant or member is applying for HCBW, including FamilyCare, FamilyCare Partnership, PACE, or IRIS he or she must submit an estimate of the cost of the long term care services needed to meet his or her medical and remedial needs (as determined by the waivers case manager) and an estimate of costs for food, shelter, clothing, and other necessities of life.

MEH § 22.4.3.

At hearing, the agency and Petitioner focused on whether Petitioner provided sufficient documentation to establish that Petitioner attempted to obtain his spouse’s cooperation. The agency argued that because Medicaid Eligibility Handbook Section 22.4.5 requires a valid undue hardship request to include a description and/or documentation “of all attempts to get cooperation from the community spouse,” an applicant must provide documentation of more than one attempt and that Petitioner’s submission of a single text exchange with his spouse did not satisfy that requirement. See Finding of Fact No. 11. The agency’s interpretation that the policy, by using the plural attempts, mandates that an individual present evidence that they have tried more than one time to secure cooperation from their spouse is reasonable.

Petitioner’s attorney argued that “some evidence” that a spouse is uncooperative is sufficient. Petitioner’s authorized representative, however, did not provide documentation with the February 2025 or April 2025 Undue Hardship Requests of even one attempt to gain cooperation from Petitioner’s spouse. Nor did he provide an explanation of “how [Petitioner] tried to get cooperation from [his spouse]”, as required by the instructions in the Undue Hardship Request form. Instead, the authorized representative, in those first two requests, asserted that Petitioner’s spouse was uncooperative and that Petitioner and his daughter had not been able to obtain cooperation despite “their best efforts” but offered no description, much less documentation, of what those best efforts entailed. The May 2025 Undue Hardship Request form supplemented the prior requests by appending a copy of the text exchange between Petitioner and his spouse. See Finding of Fact No. 11.

Based on the text message exchange provided with the May 2025 Undue Hardship Request, in addition to the credible, sworn testimony offered at hearing by Petitioner and his adult daughter / Power of Attorney regarding communications that they have had with Petitioner’s spouse, I am satisfied that Petitioner has directly, and through surrogates, made more than one attempt and that his wife refuses to sign his application.

The next question is whether Petitioner has established that he will suffer undue hardship if the waiver request is denied. For the following reasons, I must find that he has not.

When the February 2025 and April 2025 Undue Hardship Requests were filed, Petitioner was still residing in a skilled nursing facility but there is no evidence that his representatives provided the agency with either a copy of a notice from the facility that included a date of anticipated discharge, or proof that he would be unable to pay for medical care which would result in his health being put at risk, or that he would not have food, clothing, shelter or other necessities. The Undue Hardship Request form, consistent with Department policy, plainly requires that one of those two types of documentation be provided. See Finding of Fact No. 9 and MEH §22.4.5. And, when the May 2025 request was filed, Petitioner was already residing with his adult son and no evidence was offered to suggest that he has been deprived of medical care that has endangered his health or that he has been deprived of food, clothing, shelter or other necessities of life.

Finally, I note that no evidence was presented to indicate that Petitioner has applied for a Medical Assistance long term care waiver program (e.g., Family Care or IRIS). If Petitioner applies for a long term care waiver program in the future, is still married at that time, and is still unable to secure his wife’ cooperation, he may file a new Undue Hardship Request. With that request, he would be required to provide an estimate of the cost of his needed long term care services and an estimate of costs for food, shelter, clothing, and other necessities. MEH §22.4.5.

Conclusions of Law

1. Petitioner established that his spouse refused to sign his February 2025 Institutional Medical Assistance application or to otherwise cooperate with the application process.
2. There is insufficient evidence in the hearing record to establish that denial of Institutional Medical Assistance eligibility would either deprive Petitioner of medical care so as to endanger his health or life, or deprive him of food, clothing, shelter, or other necessities; Petitioner has therefore not demonstrated that he meets the requirements for an undue hardship request.

THEREFORE, it is

Ordered

Petitioner’s appeal is dismissed.

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