Around 2017 DHS instituted a policy that a caregiver should not be approved for more than 40 hours per week of paid services, including SHC covered by IRIS and other forms of caregiving such as personal care worker (PCW), respite, and daily living skills. This rule may be waived. In this case, TMG sought to reduce the petitioner’s mother’s hours to 40 per week; she had been providing 140 hours per week (and making more than $100,000 per year) since the pandemic. ALJ Brian Schneider concluded TMG correctly reduced her hours to comply with health-and-safety and conflict-of-interest requirements.
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 January 24, 2025, under Wis. Admin. Code, §HA 3.03, to review a decision by TMG to reduce supportive home care (SHC) services under the Include, Respect, I Self-Direct (IRIS) program, a hearing was held on March 12, 2025, by telephone.
The issue for determination is whether the agency correctly reduced SHC hours due to the 40-hour health and safety and conflict of interest policies.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Atty. Mary Colleen Bradley
Disability Rights Wisconsin
1502 W Broadway, Suite 201
Monona, WI 53713
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Monica Steren
TMG
2424 Rimrock Rd., Suite 230
Fitchburg, WI 53713
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a 33-year-old resident of Douglas County. He resides with his mother (hereafter “KG”), who also is his guardian.
- Petitioner is developmentally disabled with cerebral palsy, contractures, and spastic quadriplegia. He requires assistance with all activities of daily living (ADLs) and instrumental ADLs (IADLs). He has a compromised immune system leading to a physician recommendation that care providers have Covid and flu vaccinations. He has no effective communication. He is eligible for IRIS with TMG as his consulting agency.
- In approximately 2017 the Department instituted a policy that a caregiver should not be approved for more than 40 hours per week of paid services, including SHC covered by IRIS and other forms of caregiving such as personal care worker (PCW), respite, and daily living skills. There is an exception allowing a waiver of the 40-hour rule. At the time KG was providing 114 hours weekly SHC and 54 hours weekly PCW services as petitioner’s only caregiver. PCW services are covered by Medical Assistance (MA), not IRIS.
- At that point two other care providers were hired to assist KG. KG received a waiver to provide more than 40 hours per week.
- By 2020 both of the other caregivers had resigned. Since September, 2020 KG again has been petitioner’s sole caregiver, providing approximately 140 hours per week of paid care. She reported that she could find no caregivers to help her, particularly at the approved SHC rate of $15 per hour.
- Finally, in September, 2024, TMG informed KG that it could no longer support her working 140 hours per week, not only due to the 40-hour rule, but also because, as petitioner’s guardian and decision-maker, she has a conflict of interest regarding his care plan and compensation. TMG agreed to raise the SHC rate to $18 per hour with the idea that outside caregivers might be more inclined to accept the job, and to make up partially KG’s lost income. The result would be that SHC paid to KG would be reduced to 40 hours per week. KG would still provide 56 hours per week PCW care at $18.83 per hour. Although KG initially signed off on the plan, which was approved by the Department, she later reversed her agreement and filed this appeal within the allowable time limit.
Discussion
The IRIS program was developed pursuant to a Medical Assistance waiver obtained by the State of Wisconsin, pursuant to section 6087 of the Deficit Reduction Act of 2005 (DRA), and section 1915(c) of the Social Security Act. It is a self-directed personal care program.
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). The Department’s agent must also develop a service plan based on the assessed needs.
IRIS serves elderly individuals and adults with physical and developmental disabilities. It is an alternative to Family Care, Partnership, and PACE—all of which are managed long term care waiver programs. IRIS, in contrast, 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.
State policies governing administration of the IRIS program are included in the IRIS Policy Manual (available at www.dhs.wisconsin.gov/publications/P0/P00708.pdf), IRIS Work Instructions (available at www.dhs.wisconsin.gov/publications/P0/P00708a.pdf), and IRIS Service Definition Manual (available at www.dhs.wisconsin.gov/publications/p00708b.pdf).
The IRIS program covers SHC, defined as “direct and indirect assistance with daily functions and individualized needs, to promote improved functioning and safety in a participant’s home and community. IRIS Service Definition Manual, page 10. SHC is distinguished from Self-Directed Personal Care (SDPC), which can be part of an IRIS plan but is paid by MA rather than the IRIS budget. See IRIS Work Instructions, Chapter 13.
The IRIS Policy Manual, §4.0 provides that a single participant-hired worker cannot work more than 40 hours per week for the IRIS participant. The 40-hour limit includes any care given to the participant, including SHC and PCW. The IRIS Work Instructions, §4.0A, allows exceptions. Specifically, for purposes of this appeal, exception no. 4 allows an exception for more than 60 hours per week for workers who share a household with the participant. The exception provides for substantial oversight to make sure that the participant’s health and safety is not compromised.
The IRIS program permits family members, guardians, and legal representatives to be paid caregivers. IRIS Policy Manual, §10.3. Such individuals may provide up to 40 hours weekly or 75 percent of the participant’s budget, whichever comes first, without being considered a conflict of interest. IRIS Work Instructions, §10.3A.1, no. 6. If there is a conflict, the consulting agency must identify options for resolution. Id., “Resolution Process.”
As a first point, I was uncertain about jurisdiction over this case. Although my issue statement mentions SHC being reduced, that is not actually what happened. Petitioner remains eligible for 83 hours SHC; the change is that KG cannot be paid for more than 40 hours. In the end I decided that the appeal can fall under the situation of a denied request for payment since, in essence, KG is not being paid for care that she is providing for petitioner. See IRIS Policy Manual, §11.1A.
Because of the pandemic, petitioner’s care hours reverted to being covered only by his mother. For the past three years she has been providing, and being paid for, at least 140 hours per week of care services. She thus was far over the limit for initiating the conflict-of-interest policy. She also was providing 3½ times the usual 40-hour weekly caregiving limit. Frankly, TMG had no option but to begin mitigation. It offered KG options to address the issues. She basically refused to accept any of them. She has excuses for not hiring outside agencies, such as they do not have vaccination mandates, which puzzles me because individual caregivers at such an agency could still to be vaccinated. She claimed she cannot find workers who will care for him at the low pay rate, so the agency increased the pay rate. She testified that day centers would not take petitioner in because of his unique needs.
Prior to the change, KG was being paid over $100,000 per year (based on the weekly SHC and PCW hours times the hourly amounts). Even the agreed-upon change, with 40 SHC hours weekly at $18 per hour and 56 PCW hours weekly at $18.83 per hour, would total more than $92,000 per year. Petitioner’s brief argues that the agency failed to allow for a waiver of the 40-hour rule for SHC, but it failed to mention the 56 PCW hours; in fact, there is a waiver allowing KG to work more than 60 hours per week. As it stands, KG is being paid 96 hours weekly, far more than any employee could be expected to work, and more than a third more time than the 60-hour waiver for a person who lives with the participant. She has every incentive to keep her hours maximized, which is precisely the point of the conflict-of-interest policy.
It is evident that TMG staff worked hard to meet petitioner’s needs while complying with Department requirements regarding caregiver time. The Department signed off on the agreement to cut the SHC hours to 40 weekly while increasing the hourly amount and keeping the 56 PCW hours in place. In the end, I am not convinced that KG made sufficient effort to find other caregivers, but even if she did, it simply is not tenable for one caregiver to be paid for 20 hours per day. I conclude that the agency’s actions were reasonable.
Conclusions of Law
TMG, with approval of the Department, correctly reduced the paid hours to petitioner’s mother to comply with health and safety requirements concerning individual caregiver time as well as conflict of interest mitigation requirements.
THEREFORE, it is
Ordered
That the petition for review is hereby dismissed.
[Request for a rehearing and appeal to court instructions omitted.]
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