Home maintenance expenses only reduce the patient liability of an institutionalized recipient if a physician certifies the recipient is likely to return home within six months. In this case, the physician certified that the petitioner was not likely to return home within 12 months, but there was a realistic expectation he would return home eventually. The petitioner argued that “expenses such as telephone, life insurance, $100 per month paid to his sister-in-law for the service of paying his bills, cable television, home care, food, etc.” should reduce his patient liability. His representative also argued she had no way of knowing what expenses were deductible before applying for Medicaid. ALJ Sean Maloney concluded these expenses were not deductible, however, and a final decision by DHS Deputy Secretary Mark Thomas clarified that the timeframe required by federal regulations is six months, not the twelve that was in the outdated Wisconsin administrative code.
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 August 8, 2008, under Wis. Stat. § 49.45(5) (2005-06), to review a decision by the Rock County Department of Social Services (County) in regard to Medical Assistance (MA), a Hearing was held on September 22, 2008 in Janesville, Wisconsin.
The issue for determination is whether petitioner’s patient liability, starting April 1, 2008, under MA for an institutional person was properly calculated.
There appeared at that time and place the following persons:
PARTIES IN INTEREST:
Petitioner:
—
(not present at September 22, 2008 hearing)
Represented by:
—
Respondent:
Wisconsin Department of Health Services
Room 650
1 West Wilson Street
P.O. Box 7850
Madison, WI 53707-7850
By: Sherry L. Quirk, ES Supervisor
Linda Romps, ESS
Rock County Department Of Social Services
1900 Center Street
P.O. Box 1649
Janesville, Wisconsin 54546
OTHER PERSONS PRESENT:
—, petitioner’s nephew
ADMINISTRATIVE LAW JUDGE:
Sean P. Maloney
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Rock County, Wisconsin and is an institutionalized MA recipient; he is not employed.
- At all times relevant to this matter petitioner was not expected to return home within 12 months—but a physician had verified that there is a realistic expectation that petitioner will eventually return home.
- Petitioner applied for institutional MA on May 27, 2008 and requested that eligibility be backdated to April 1, 2008; when computing petitioner’s monthly patient liability amount the County calculated petitioner’s monthly income by adding together 2 Social Security checks per month ($1,167.00 + $994.00) and a pension of $148.31 per month for a total monthly income of $2,309.31; the County allowed a monthly home maintenance deduction of $280.09 ($44.25 monthly homeowner’s insurance; $76.02 monthly property taxes; and, $159.82 monthly utility expense) but no other deductions except for the $45.00 per month personal needs allowance.
- Petitioner’s income consists of 1 Social Security check per month in the amount of $1,167.00 and 1 pension check per month in the amount of $148.31 for a total monthly income of $1,315.31.
Discussion
The law is clear that, with only certain very limited deductions, all of the income of an MA recipient who is in an institution must be applied to the cost of the institution. Wis. Stat. § 49.45(7)(a) (2005-06); Wis. Admin. Code § 103.07(l)(d) (February 2002); Medicaid Eligibility Handbook [“MEH”] 27.7. The amount that the recipient is required to pay for the cost of the institution is known as the “patient liability amount” or “cost of care”. MEH 27.7.1.
The amount of the patient liability depends on the recipient’s income, less certain deductions. For purposes of computing the patient liability amount the only allowed deductions are the following: personal needs allowance; if employed, the first $65 and one-half the remainder of gross earnings; the cost of health insurance; amounts incurred for necessary medical or remedial care recognized under state law but not covered by MA; the actual amount (subject to a maximum) paid for the support of a person for whom the institutionalized person is legally responsible; expenses for establishing and maintaining a court-ordered guardianship or protective placement, including court-ordered attorney and/or guardian fees; and, the monthly cost of maintaining a home [but only up to a certain maximum amount and only if one of the following is true: (1) the person intends to return home and the anticipated absence from the home, as verified by a physician, is less than 12 months; or, (2) a physician has verified that there is a realistic expectation the recipient will return home]. Wis. Admin. Code §§ HFS 103.07(1)(d) & 103.06(1)(b)2. & 3. (February 2002); But see also, MEH 27.7.1. & 15.7.1.
First, as noted in the above Findings of Fact, petitioner’s income consists of 1 Social Security check per month in the amount of $1,167.00 and 1 pension check per month in the amount of $148.31 for a total monthly income of $1,315.31. This is based on the testimony, which is credible, of petitioner’s representative and nephew and also on bank statements showing 1 deposit per month from the US Treasury in the amount of $1,167.00. The County’s contention that petitioner receives 2 Social Security checks per month is not supported by the preponderance of the credible evidence in the record of this matter. See, Wis. Admin. Code § HA 3.09(4) (September 2001).
Second, petitioner argues that expenses such as telephone, life insurance, $100 per month paid to his sister-in-law for the service of paying his bills, cable television, home care, food, etc. should be deducted from his income when calculating his cost of care. As detailed above, the law does not allow these expenses to be deducted. Therefore, they cannot be deducted.
Third, petitioner’s representative testified that she had no way of knowing what expenses were deductible and what expenses were not and was not told until May 27, 2008. She argues that, therefore, petitioner should be able to deduct all of his expenses for April 2008 and May 2008. However, petitioner did not even apply for institutional MA until May 27, 2008. Furthermore, although the County may assist petitioner, petitioner and his representative are ultimately responsible to know the rules governing MA and to make appropriate choices accordingly. Therefore, this argument must fail.
Finally, the County erred in allowing a monthly home maintenance deduction of $280.09. At the Hearing the County worker testified that a home maintenance deduction should not have been allowed because petitioner would not be returning home for 6-months or more. Written state policy, as found in the Medicaid Eligibility Handbook, states that a home maintenance deduction may be allowed “only when the following conditions are met:
- A physician certifies (verbally or in writing) that the person is likely to return to the home or apartment within six months …” MEH 27.7.1.e & 15.7.1.
This provision of the Handbook is consistent with federal regulations, which permit the home maintenance deduction only if the amount is deducted for not more than a six month period and the person is likely to return home during that period. See 42 CFR 435.725(d). This federal regulation supercedes the outdated administrative code provision relied on by the Administrative Law Judge.
Conclusions of Law
For the reasons explained above, petitioner’s patient liability, starting April 1, 2008, under MA for an institutional person was not properly calculated because incorrect income was used and because the monthly home maintenance deduction was erroneously applied.
THEREFORE, it is
Ordered
That this matter be REMANDED to the County and that, within 10 days of the date of the Final Decision in this matter, the County recalculate petitioner’s patient liability retroactive to April 1, 2008 using monthly income of $1,315.31 and then issue all MA benefits for which petitioner is otherwise eligible retroactive to April 1, 2008. In all other respects it is Ordered that the petition for review herein be and the same is hereby DISMISSED.
[Request for a rehearing and appeal to court instructions omitted.]Given under my hand at the City of
Madison, Wisconsin, this
8TH day of
DECEMBER, 2008.
S/MARK THOMAS
Mark Thomas, Deputy Secretary
Department of Health Services