BCS 207050 (02/08/2023)
Appeal of agency error not timely

DHA Case No. BCS 207050 (Wis. Div. of Hearings and Appeals February 8, 2023) (DHS) ↓ Download PDF

A Medicaid appeal must be filed within 45 days of a negative action. In this case, the petitioner’s mother contacted the agency in May 2020 to report getting a job and ask for her BadgerCare Plus benefits to be ended. In an apparent misunderstanding, the agency ended benefits for both her and the petitioner, sending a proper disenrollment notice. The petitioner’s mother did not realize the mistake and appeal until two and a half years later. ALJ Beth Whitaker concluded the petitioner had adequate notice and did not appeal within 45 days, dismissing the appeal.

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Preliminary Recitals

Pursuant to a petition filed on December 5, 2022, under Wis. Stat. § 49.45(5)(a), to review a decision by the Brown County Human Services regarding Medical Assistance (MA), a hearing was held on January 4, 2023, by telephone.

The issue for determination is whether petitioner’s appeal was filed timely.

There appeared at that time the following persons:



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Brown County Human Services
Economic Support-2nd Floor
111 N. Jefferson St.
Green Bay, WI 54301

Beth Whitaker
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a child who resided with her mother — in Brown County and received BadgerCare Plus (BCP) health care benefits.
  2. On May 18, 2020, — contacted the agency by telephone to state that she returned to work on May 5, 2020 and no longer wanted BCP benefits.
  3. On May 19, 2020, the agency issued an About Your Benefits notice to —, informing her that BCP benefits for herself and petitioner would end on June 1, 2020 because she did not ask for the benefit. The notice informed petitioner that she could appeal the decision and that the deadline to appeal was July 17, 2020.
  4. The May 19, 2020 notice was sent to — and was not returned as undelivered.
  5. On December 5 2022, — filed an appeal on petitioner’s behalf with the Division.


— was an ongoing recipient of BCP benefits for herself and her child —. The agency terminated her coverage effective June 1, 2020 based on a request from — on May 18, 2020.

— explained that she did call the agency in May 2020 to discontinue BCP benefits for herself, because she returned to work and had health insurance through her employer. She testified credibly that did not ask to have her daughter Hayleigh’s BCP discontinued and believed that the daughter continued to be covered by BCP. She said she did not realize until March 20, 2022, that — was not enrolled in BCP.

On May 19, 2020, the agency sent written notice of the action it took pursuant to her May 18, 2020 request. The notice stated that BCP benefits ended for both — effective June 1, 2020. The notice was sent by U.S. Mail to petitioner’s correct address and not returned as undelivered. — failed to show or claim that she did not receive the notice. She confirmed that the mailing address was correct and testified that she did not know whether she received the notice. Her testimony did not establish that the agency failed to notify her of its action in terminating — BCP benefits.

— describes a misunderstanding on May 18, 2020, in which she wanted to cancel BCP for herself only, not her daughter, and the agency worker thought she wanted to cancel it for both. This misunderstanding is not relevant. The agency sent written notice clearly describing its action in ending BCP for both — and —. This placed her on notice that the agency believed she requested termination of BCP for — and that it acted accordingly. Petitioner had until July 17, 2020 to appeal the determination to correct the misunderstanding. — did not file her appeal until December 5, 2022, 871 days late.

An appeal contesting a negative action taken against Medical Assistance benefits, and its subsets including BadgerCare benefits, must be filed within 45 days of the effective date of the negative actions. See, Wis. Stat. §49.45(5); see also, Wis. Admin. Code §HA 3.05(3). The negative action was the May 19, 2020 notice. Petitioner did not file her appeal within 45 days. Because the appeal was filed late, I lack jurisdiction to reach the merits of the issue in dispute. The Division’s assigned administrative law judges do not possess the powers of a court of equity. Rather, our review is limited to the authority delegated by statute or rule. See, Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F.Supp. 540, 545 (E.D. Wis.1977). I cannot extend the appeal deadline beyond what is provided by statute.

Conclusions of Law

The Division of Hearings and Appeals has no authority to consider the petitioner’s appeal because it was filed untimely, as it was not filed with 45 days following negative action by the respondent.



That the petition for review is dismissed.

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

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