When estate recovery makes a claim, Wisconsin law gives a right to appeal the issues of the value of the property and the extent of the decedent’s interest in it. In this case, the petitioner disputed the Department’s recovery of a Certificate of Deposit. ALJ John Tedesco concluded he had no jurisdiction to consider the issue.
This decision was published with support from the Wisconsin chapter of the National Academy of Elder Law Attorneys and Krause Financial.
Preliminary Recitals
Pursuant to a petition filed on January 21, 2025, under Wis. Admin. Code § HA 3.03(1), to review a decision by the Division of Medicaid Services regarding Medical Assistance (MA), a hearing was held on March 12, 2025, by telephone.
The issue for determination is whether DHA has jurisdiction in this appeal.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: T. Bartosch
Division of Medicaid Services
PO Box 309
Madison, WI 53701-0309
ADMINISTRATIVE LAW JUDGE:
John Tedesco
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Eau Claire County.
- Petitioner’s mother was enrolled in Medicaid.
- Petitioner’s mother passed away and the DHS acted to recover funds from the estate.
- After petitioner’s mother died, on January 2, 2025 petitioner sought transfer of assets by affidavit including a Certificate of Deposit (CD) held at —.
- On January 26, 2025 the Department of Health Services sent a claim to petitioner for the assets of his mother.
- Petitioner wrote to the DHS disputing the recovery of the CD.
Discussion
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. The estate recovery law, in §DHS 108.02(12), provides for hardship waivers of such liens. Petitioner did not request a hardship waiver, and this appeal does not address any related issue.
Wis. Stat., §49.849 provides for the recovery of public assistance payments. The department sought to recover such payments. The fair hearing right relating to a challenge to estate recovery is limited:
(5m) Fair hearing. A person who has possession of any property of the decedent, or who receives an affidavit from the department under sub. (3) (c) for transmittal of any property of the decedent, is entitled to and may, within 45 days after the affidavit was sent, request a departmental fair hearing on the value of the property and the extent of the recipient’s interest in the property, if the property is not being transferred under s. 867.03 or through formal or informal administration of the decedent’s estate.
Wis. Stat. Section 49.849(5m).
That is the provision upon which the petitioner here filed this appeal. In this case, the property was transferred by affidavit under Wis. Stat. 867.03. The clear language of statute provides that this appeal right does not apply in such a case. In this case, the CD was being, or had been, transferred by operation of a “transfer by affidavit” under Wis. Stat. Section 867.03. There is no hearing right in such a circumstance and DHA lacks jurisdiction to consider the merits of the dispute.
Conclusions of Law
DHA does not have jurisdiction to consider an appeal under these facts.
THEREFORE, it is
Ordered
That this appeal is dismissed.
[Request for a rehearing and appeal to court instructions omitted.]
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