An individual is functionally eligible for Family Care if he or she needs a “nursing home” level of care, as determined by the functional screen. This level of care includes those who cannot safely or appropriately perform 5 or more Instrumental Activities of Daily Living (IADLs). In this case, the petitioner’s functional screen determined he required assistance with (1) meal preparation, (2) medication administration/management, (3) laundry and/or chores, (4) telephone, and (5) transportation; but the LTCFS computer program found him functionally ineligible (apparently not counting laundry/chores as an IADL). Because Department policy and Federal regulations include essential household chores as an IADL, ALJ Peter McCombs concluded the LTCFS was in error and the petitioner was functionally eligible for Family Care at the nursing home level of care.
Preliminary Recitals
Pursuant to a petition filed on September 19, 2022, under Wis. Admin. Code § HA 3.03, to review a decision by the ADRC of Milwaukee County regarding Medical Assistance (MA), a hearing was held on October 27, 2022, by telephone.
The issue for determination is whether the ADRC of Milwaukee County correctly determined the petitioner’s functional eligibility/level of care.
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: Catherine Moe
ADRC of Milwaukee County
Aging Resource Ctr—Suite 300
1220 W Vliet St
Milwaukee, WI 53205
ADMINISTRATIVE LAW JUDGE:
Peter McCombs
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a 75-year-old resident of Milwaukee County.
- Petitioner’s medical diagnoses include dehydration, high cholesterol, hypertension, arthritis, joint disorder, chronic leg pain, asthma, and anxiety. The Long Term Care Functional Screen (LTFSC) also reports diagnoses of schizophrenia and depression reported by petitioner’s daughter, but notes that they are unconfirmed. Exhibit R-1.
- On July 18, 2022, the ADRC of Milwaukee County completed an LTCFS of petitioner. The LTFCS indicates that petitioner requires assistance with the following Instrumental Activities of Daily Living (IADLs): Meal Preparation, Medication Administration/Management, Laundry and/or Chores, Telephone, and Transportation.
- By letter dated August 5, 2022, the ADRC informed petitioner that based on the LTFCS he was found functionally ineligible for Family Care.
- Petitioner timely appealed asserting that he is functionally eligible for Family Care at a Nursing Home Level of Care.
Discussion
The Family Care program, which is supervised by the Department of Health Services, is designed to provide appropriate long-term care services for individuals who fall within the following “target groups”: 1. Frail elders; 2. individuals aged 18 and older who have physical disabilities, as defined in Wis. Stats. § 15.197(4)(a)2; and 3. individuals aged 18 and older who have developmental disabilities. See, Wis. Stats. §46.286. To be eligible for enrollment in Family Care, an individual must fall within one of these target groups AND need a “nursing home” (referred to as comprehensive) or “non-nursing home” (referred to as intermediate) level of care. See, Wis. Stats. §46.286(1)(a). In this case, petitioner was found to fall within one of the target groups.
To assess an individual’s functional eligibility for Family Care, an extensive interview regarding his functional abilities and limitations is conducted. The assessment also entails a review of relevant collateral material, such as the applicant’s medical records. The information gathered from the assessment is then input into a computer program which ultimately determines the person’s functional eligibility and level of care. As noted previously by the Division of Hearings and Appeals (DHA), there are times when the logic or algorithm used by the computer program produces results that are at odds with the state regulations that govern the Family Care program. When such conflict is present, the regulations, not the computer program, control the outcome. See, DHA Case No. FCP-192455 (Wis. Div. Hearing and Appeals April 10, 2019)(DHS); DHA Case No. FCP-188090 (Wis. Div. Hearing and Appeals September 17, 2018)(DHS); and DHA Case No. FCP-176611 (Wis. Div. Hearing and Appeals October 18, 2016) (DHS).
Wis. Admin. Code § DHS 10.33(2)(c) defines nursing home level of care as the following:
A person is functionally eligible at the comprehensive level if the person requires ongoing care, assistance or supervision from another person, as is evidenced by any of the following findings from application of the functional screening:
- The person cannot safely or appropriately perform 3 or more activities of daily living.
- The person cannot safely or appropriately perform 2 or more ADLs and one or more instrumental activities of daily living.
- The person cannot safely or appropriately perform 5 or more IADLs.
- The person cannot safely or appropriately perform one or more ADL and 3 or more IADLs and has cognitive impairment.
- The person cannot safely or appropriately perform 4 or more IADLs and has cognitive impairment.
- The person has a complicating condition that limits the person’s ability to independently meet his or her needs as evidenced by meeting both of the following conditions:
- The person requires frequent medical or social intervention to safely maintain an acceptable health or developmental status; or requires frequent changes in service due to intermittent or unpredictable changes in his or her condition; or requires a range of medical or social interventions due to a multiplicity of conditions.
- The person has a developmental disability that requires specialized services; or has impaired cognition exhibited by memory deficits or disorientation to person, place or time; or has impaired decision making ability exhibited by wandering, physical abuse of self or others, self-neglect or resistance to needed care.
“Instrumental activities of daily living” are defined as “… management of medications and treatments, meal preparation and nutrition, money management, using the telephone, arranging and using transportation and the ability to function at a job site.” Wis. Admin. Code § DHS 10.313(32). The LTCFS report also includes as an IADL “Laundry and/or Chores.” This indicates department policy is to include the performance of laundry and chores as a separate IADL. Moreover, Federal Medicaid regulations include the performance of essential household chores within the definition of IADLs. See, 42 C.F.R. § 441.505. The DHA has previously issued decisions recognizing that laundry and chores are an IADL for purposes of determining level of care. See, DHA Case No. FCP-192455 (Wis. Div. Hearing and Appeals April 10, 2019)(DHS); DHA Case No. FCP-188090 (Wis. Div. Hearing and Appeals September 17, 2018)(DHS); and DHA Case No. FCP-176611 (Wis. Div. Hearing and Appeals October 18, 2016) (DHS).
In this case, petitioner’s LTCFS indicates that he needs assistance with five IADLS: meal preparation, medication administration/management, laundry and/or chores, telephone, and transportation. According to Wis. Admin. Code § DHS 10.33(2)(c)3, petitioner qualifies for nursing home level of care.
Conclusions of Law
Petitioner is functionally eligible for Family Care at the comprehensive/nursing home level of care.
THEREFORE, it is
Ordered
That this matter is remanded to the ADRC of Milwaukee County to amend the Long Term Care Functional Screen to reflect that petitioner has a nursing home/comprehensive level of care. This shall be done within ten days of the date of this decision.
[Request for a rehearing and appeal to court instructions omitted.]