MLL 209431 (08/28/2023)
Information supporting estate recovery hardship waiver filed too late

DHA Case No. MLL 209431 (Wis. Div. of Hearings and Appeals August 28, 2023) (DHS) ↓ Download PDF

An applicant for a hardship waiver of estate recovery must file his or her application within 45 days of estate recovery’s claim, after which the applicant has 60 days to submit additional information. And if the applicant appeals a denial of the hardship waiver, he or she can submit new information up to seven working days before the hearing. In this case, the petitioner simply failed to file the required information within these time limits, finally doing so only two days before the hearing. ALJ Brian Schneider concluded the petitioner did not file the information timely and had no good cause for this failure.

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Preliminary Recitals

Pursuant to a petition filed July 19, 2023, under Wis. Admin. Code, §HA 3.03(1), to review a decision by the Division of Medicaid Services (DMS) regarding Medical Assistance (MA) estate hardship waiver, a hearing was held on August 23, 2023, by telephone.

The issue for determination is whether the DMS correctly denied a hardship estate waiver because the application was not filed timely.



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Rebecca Heaney
Division of Medicaid Services
PO Box 309
Madison, WI 53701-0309

Brian C. Schneider
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner is a resident of Milwaukee County.
  2. Petitioner’s mother died in late —, and a probate proceeding was opened in Milwaukee County Circuit Court with petitioner as the personal representative. On March 17, 2023, the DMS filed a claim for MA paid by the state with the probate court. The claim included a notice to beneficiaries concerning hardship waivers.
  3. On May 1, 2023, petitioner filed a hardship waiver request with the DMS. The DMS immediately sent petitioner an application form seeking information to establish the basis for the hardship waiver. The DMS mailing noted a July 1, 2023 deadline for returning the application.
  4. Petitioner did not file the application by the deadline. On July 10, 2023, the DMS sent petitioner a notice denying his request for a hardship waiver. Petitioner appealed the denial timely. Two days before the scheduled hearing, petitioner filed the application by email with the Division of Hearings and Appeals, which forwarded the email to the DMS.


Estate recovery and lien authority for MA are mandated by Wis. Stat., §49.496. Subsection (3)(a)2 requires the Department to utilize estate recovery to recover funds spent on long-term care for the decedent under programs such as Family Care. Wis. Admin. Code, §DHS 108.02(10) allows the Department to use estate recovery from an MA recipient to recover MA paid while the recipient was in a nursing home or a community-based waiver program. §DHS 108.02(12) provides for hardship waivers of such liens.

Wis. Admin. Code §DHS 108.02(12)(b) provides:

  1. A beneficiary or heir of a decedent may apply to the department for a waiver of an estate claim filed by the department. The department shall review an application for a waiver under this subsection and shall determine whether the applicant meets the criterion under subd. 2.a, b, or c. If the department determines that the criterion under subd. 2.a, b, or c is met, the department shall waive its claim as to that applicant.
  2. Any of the following situations constitutes an undue hardship on the waiver applicant:
    1. The waiver applicant would become or remain eligible for supplemental security income (SSI), food stamps under 7 USC 2011 to 2029, aid to families with dependent children (AFDC), or medical assistance if the department pursued its claim;
    2. A decedent’s real property is used as part of the waiver applicant’s business, which may be a working farm, and recovery by the department would affect the property and would result in the waiver applicant losing his or her means of livelihood; or
    3. The waiver applicant is receiving general relief, relief to needy Indian persons (RNIP) or veterans benefits based on need under s. 45.40(1m), Stats.

The hardship waiver process is described in §DHA 108.12(d):

  1. A waiver applicant shall mail his or her application for a waiver in writing to the department within 45 days after the date the department mailed its claim or affidavit pursuant to s. 49.496 or 49.849, Stats., or its notice under par. (c), whichever is later. The application shall include the following information:
    1. The relationship of the waiver applicant to the decedent and copies of documents establishing that relationship; and
    2. The criterion under par. (b) 2. a, b, or c, which is the basis for the application and documentation supporting the waiver applicant’s position.
  2. The department shall review each application and issue a written decision within 90 days after the application was received by the department. The department shall consider all information received within 60 days following receipt of the application. The department’s decision shall be based on information received within that time-period. The department’s written decision shall include information regarding the waiver applicant’s right to a hearing under par. (e).

Finally, §DHS 108.02(12)(e) provides for hearing rights, including:

  1. If a waiver applicant wishes to introduce information at the hearing that he or she did not submit to the department under par. (d), the applicant shall provide the department with that information by mailing it to the department with a postmark of at least 7 working days prior to the hearing date.
  2. The issue for hearing shall be whether the department’s decision was correct based on the information submitted to the department by the waiver applicant within the time periods specified in par. (d) 2 and subd. 2. No other information may be considered by the hearing examiner unless the hearing examiner finds that the applicant did not timely provide the information to the department for good cause. The hearing decision shall be the final decision of the department. The hearing shall be held in accordance with the provisions of ch. 227, Stats.

Petitioner did not file the application with the information needed to determine hardship eligibility within the time limit prescribed by the rule. He appealed timely, and the DMS and the judge could have considered new information provided by petitioner if it were filed at least seven days before the hearing. The July 3 denial notice specifically told petitioner that he could file new information at least seven days prior to the hearing. Petitioner did not provide the new information timely. Further, I cannot find that he had good cause for the failure; he did not testify to any impediments to getting the application in other than his own procrastination.

Conclusions of Law

The DMS correctly denied petitioner’s request for a hardship waiver because he did not file the necessary supporting documents within the time allowed by the law.



That the petition for review is hereby dismissed.

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

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