CWA 208558 (07/26/2023)
Appeal erroneously dismissed (corrected on rehearing)

DHA Case No. CWA 208558 (Wis. Div. Hearings and Appeals Jul. 26, 2023) (DHS) ↓ Download PDF

Participants in the IRIS program have certain rights to appeal that do not extend to providers. In this case, the petitioner appealed the denial of his budget amendment request to increase the rate paid to his supportive home care provider. ALJ Kelly Cochrane erroneously dismissed the case, concluding this was essentially an appeal by the provider.

See CWA 208558 RHG (09/05/2023) for the subsequent decision on rehearing, which addressed the substantive issues, and CWA 208558 (02/26/2024) for the decision awarding costs to the petitioner.


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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 Lori Kornblum, who donated this decision from her file.

Preliminary Recitals

Pursuant to a petition filed on May 5, 2023, under Wis. Admin. Code § HA 3.03, to review a decision by the Bureau of Long-Term Support regarding Medical Assistance (MA), a hearing was held on June 27, 2023, by telephone. The appeal was originally set for June 13, 2023 but was rescheduled to June 27 at petitioner’s request.

The issue for determination is whether the Division of Hearings and Appeals (DHA) has authority to make a determination on the merits of an Include, Respect, I Self-Direct (IRIS) provider issue, specifically petitioner’s supportive home care rate.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:

Petitioner’s Representative:
Attorney Lori Kornblum
Law Offices of Lori S. Kornblum
10936 N Port Washington Rd Ste 296
Mequon, WI 53092

Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By:
Bureau of Long-Term Support
PO Box 7851
Madison, WI 53707-7851

ADMINISTRATIVE LAW JUDGE:
Kelly Cochrane
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner is a resident of Waukesha County. He is enrolled in the IRIS program.
  2. On May 9, 2023 the IRIS agency issued a notice of action to petitioner stating that it denied the petitioner’s budget amendment (BA) request for the supportive home care (SHC) rate paid to petitioner’s SHC provider.

Discussion

The IRIS program is a MA long term care waiver program that serves elderly individuals and adults with physical and developmental disabilities. The IRIS program was developed pursuant to a MA waiver obtained by the State of Wisconsin, pursuant to section 1915(c) of the Social Security Act. The federal government has promulgated 42 C.F.R. § 441.300 – .310 to provide general guidance for this program. Those regulations require that the Department’s agent must assess the participant’s needs and preferences (including health status) as a condition of IRIS participation. Id., § 441.301(c)(2). IRIS is an alternative to Family Care, Partnership, and PACE—all of which are managed long term care waiver programs in Wisconsin. The IRIS program is designed to allow participants to direct their own care and to hire and direct their own workers. The broad purpose of all of these programs, including IRIS, is to help participants design and implement home and community-based services as an alternative to institutional care. See IRIS Policy Manual §1.1B, (available online at http://www.dhs.wisconsin.gov/publications/P0/P00708.pdf).

The IRIS waiver application (Waiver) most recently approved by the Centers for Medicare and Medicaid Services (CMS) is available online at https://www.dhs.wisconsin.gov/iris/hcbw.pdf. State policies governing administration of the IRIS program are included in the IRIS Policy Manual, IRIS Work Instructions (available at http://www.dhs.wisconsin.gov/publications/P0/P00708a.pdf), and IRIS Service Definition Manual (available at https://www.dhs.wisconsin.gov/publications/p00708b.pdf).

The Waiver directs that participants have fair hearing rights as follows:

The state provides the opportunity to request a Fair Hearing under 42 CFR §431 Subpart E, to individuals: (a) who are not given the choice of home and community-based waiver services as an alternative to institutional level of care specified for this waiver; (b) who are denied the service(s) of their choice or the provider(s) of their choice; or (c) whose services are denied, suspended, reduced or terminated. Appendix F specifies the state’s procedures to provide individuals the opportunity to request a Fair Hearing, including providing notice of action as required in 42 CFR §431.210.

Waiver, p.8 of 274 and Appendix F-1.

These appeal rights do not extend to providers but are for the participant. In this case there is no denial, suspension, reduction, or termination of SHC services for petitioner under paragraph (c) above, nor does the appeal concern paragraphs (a) or (b) above. Rather this is, in essence, an appeal by a provider as to a rate for those services. The DHA does not have authority to make a decision as to providers under the Waiver. This determination has been upheld by the Department of Health Services in Final Decision No. CWA/133085, dated December 21, 2011.

Further, the DHA does not possess equitable powers. See, e.g., Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F. Supp. 540, 545 (E.D. Wis. 1977). The DHA must limit its review to the law as set forth in statutes, federal regulations, and administrative code provisions. Given the Waiver language, the DHA may not make a substantive decision as to the rate determinations involved here. Therefore, I must conclude the DHA does not have jurisdiction to consider petitioner’s appeal of this issue.

Conclusions of Law

The DHA does not have the authority to make a determination on the merits of petitioner’s SHC rate.

THEREFORE, it is

Ordered

The petition for review herein is dismissed.

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

 

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