MLL 171792 (03/21/2016)
Estate Recovery amended lien based on petitioner’s concerns

DHA Case No. MLL 171792 (Wis. Div. of Hearings and Appeals March 21, 2016) (DHS) ↓ Download PDF

Estate Recovery must file a claim or lien against the estate of decedents who received long-term care Medicaid benefits. In this case, the petitioner challenged the Department’s intent to file a lien against his mother’s estate, arguing the lien was too broad. Apparently the Department amended its proposed lien in consideration of these concerns and the petitioner did not object, leading ALJ Michael O’Brien to conclude the Department could file the lien as amended and no issue remained.

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This decision was published with support from the Elder Law & Special Needs Section of the State Bar of Wisconsin and the Wisconsin chapter of the National Academy of Elder Law Attorneys. Thanks also to Attorney Andy Falkowski, who donated this decision from his file.

Preliminary Recitals

Pursuant to a petition filed January 29, 2016, under Wis. Admin. Code § HA 3.03(1), to review a decision by the Division of Health Care Access and Accountability in regard to Medical Assistance, a hearing was held on February 17, 2016, at Balsam Lake, Wisconsin.

The issue for determination is whether the Department may place a lien against the estate of the petitioner’s mother to recover medical assistance benefits provided to her while she was alive.

There appeared at that time and place the following persons:



c/o Atty —

Petitioner’s Representative:
Attorney —

Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Division of Health Care Access and Accountability
Madison, WI

Michael D. O’Brien
Division of Hearings and Appeals

Findings of Fact

  1. The petitioner is a resident of Polk County.
  2. The petitioner’s mother received $35,630.79 in medical assistance benefits before she died on March 17, 2015.
  3. The petitioner’s mother held an interest in real property at the time of her death.
  4. The Department filed an amended affidavit on February 18, 2016, as part of lien against property held by the decedent.


Wisconsin law requires the department to file a claim against the estate of those who received public assistance. Wis. Stat. § 49.496(3); Wis. Admin. Code, § DHS 108.02(10). The Department may waive a lien against the estate if it would cause undue hardship to an heir or beneficiary. Wis. Stat. § 49.496(6m). Under Wis. Admin. Code, § DHS 108.02(12)(b)2, it must waive a lien against the estate if the heir or beneficiary (a) would become eligible for public benefits without the waiver; (b) required the decedent’s real property to keep from losing a business that used the property; or (c) is receiving general relief, relief to needy Indian persons, or state veteran’s benefits based upon need.

The petitioner did not claim any of these exemptions, but challenged the Department’s intent to file a lien against his late mother’s estate because he considered the lien too broad. The day after the hearing, — of the Estate Recover Program prepared an amended affidavit that took into consideration the petitioner’s concerns. More than a month has passed, and the petitioner and his attorney have not objected to this revised lien. Based upon this, I assume that he finds the amended affidavit suitable and will dismiss his claim. If the revised affidavit and lien do not resolve this matter, he may file a new appeal. If he does, I suggest he include a copy of this decision with his appeal.

Conclusions of Law

The Department may file a lien against the real property of the petitioner’s mother to recover medical assistance benefits provided to her.



The petitioner’s appeal is dismissed.

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

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