FCP 189985 (01/14/2019)
Food budget reduced when petitioner started working

DHA Case No. FCP 189985 (Wis. Div. of Hearings and Appeals January 14, 2019) (DHS) ↓ Download PDF

MCOs must consider an MA recipient’s income when determining benefits. In this case, the petitioner’s MCO reduced his out-of-benefit food budget when he started working, reasoning he could contribute that towards the cost of his food. ALJ Peter McCombs concluded the MCO properly modified the food benefit.

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Preliminary Recitals

Pursuant to a petition filed on September 19, 2018, under Wis. Admin. Code § DHS 10.55, to review a decision by the Inclusa Inc/Community Link regarding Medical Assistance (MA), a hearing was held on December 4, 2018, by telephone.

The issue for determination is whether the respondent correctly terminated petitioner’s out-of-benefit food budget.

There appeared at that time the following persons:



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Inclusa Inc/Community Link
3349 Church St Suite 1
Stevens Point, WI 54481

Peter McCombs
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Portage County. Petitioner turned 18 on February 5, 2007, and remained in high school until he was 21. Petitioner was thereafter enrolled in Family Care.
  2. Petitioner has diagnoses of autism spectrum disorder, oppositional defiant disorder, OCD/anxiety, bipolar, GERD, IBS, leaky gut syndrome, constipation, sleep apnea, behavior issues and social pragmatics.
  3. Petitioner’s benefits through the Family Care program have included an out-of benefit food budget to assist petitioner with purchasing food for his specialized diet.
  4. On July 25, 2018, the agency conducted a Resource Allocation Decision (RAD) regarding the Petitioner’s request for his continued out-of-benefit food budget. The agency noted the Petitioner has significant and multiple food allergies, in addition to GERD, IBS, leaky gut syndrome, and constipation.
  5. On August 8, 2018, the agency notified Petitioner that it had denied his request based on its conclusion that the Petitioner has informal support available and that the food budget is not the most cost-effective outcome.
  6. On September 19, 2018, the Petitioner filed an appeal with the Division of Hearings and Appeals.


The Family Care program (FC) which is supervised by the Department of Health Services, is designed to provide appropriate long-term care services for elderly or disabled adults. Whenever the local Family Care program decides that a person is ineligible for the program, or when the CMO denies a requested service, the client is allowed to file a local grievance.

The state code language on the scope of permissible services for the FC reads as follows:

DHS 10.41 Family care services.…

(2) SERVICES. Services provided under the family care benefit shall be determined through individual assessment of enrollee needs and values and detailed in an individual service plan unique to each enrollee. As appropriate to its target population and as specified in the department’s contract, each CMO shall have available at least the services and support items covered under the home and community-based waivers under 42 USC 1396n(c) and ss. 46.275, 46.277 and 46.278, Stat., the long-term support services and support items under the state’s plan for medical assistance. In addition, a CMO may provide other services that substitute for or augment the specified services if these services are cost-effective and meet the needs of enrollees as identified through the individual assessment and service plan.

Note: The services that typically will be required to be available include adaptive aids; …home modification; … personal care services; …durable medical equipment…and community support program services.

Wis. Admin. Code §HFS 10.41(2).

The general legal guidance that pertains to determining the type and quantity of care services that must be placed in an individualized service plan (ISP) is as follows:

DHS 10.44 Standards for performance by CMOs.

(2) CASE MANAGEMENT STANDARDS. The CMO shall provide case management services that meet all of the following standards:

(f) The CMO, in partnership with the enrollee, shall develop an individual service plan for each enrollee, with the full participation of the enrollee and any family members or other representatives that the enrollee wishes to participate. … The service plan shall meet all of the following conditions:

  1. Reasonably and effectively addresses all of the long-term care needs and utilizes all enrollee strengths and informal supports identified in the comprehensive assessment under par. (e)1.
  2. Reasonably and effectively addresses all of the enrollee’s long-term care outcomes identified in the comprehensive assessment under par. (e)2 and assists the enrollee to be as self-reliant and autonomous as possible and desired by the enrollee.
  3. Is cost-effective compared to alternative services or supports that could meet the same needs and achieve similar outcomes.

Wis. Admin. Code §DHS 10.44(2)(f).

The agency testified that, through its RAD decision process, it determined that petitioner’s income would allow petitioner to contribute to his food budget, thereby eliminating the need for assistance in this regard. In its Notice of Action terminating the food budget benefit, the agency wrote:

— can utilize his Social Security and work wages to pay for his dietary needs, following the direction of a dietician for appropriate portion sizes. — has supports in place to assist with finding budget friendly options that meet his dietary needs. …

Exhibit R-2.

The Petitioner was represented at the hearing by his mother. She argued that the Petitioner earns $8.32 per hour, and his net pay is between $435.00 and $495.00 monthly. He also receives Social Security in the amount of $641.00. The food budget benefit that petitioner has received is $470.00 monthly. Petitioner’s parents provide him with natural supports, including substantial medication management support and they do not collect any rent from him.

Whereas Petitioner’s mother testified to the necessity of Petitioner’s specialized diet, and the extra cost that it entails, the respondent presented a cost-based analysis. Specifically, the respondent maintains that, when the out-of-benefit food budget was approved in the amount of $470.00 in October of 2008, Petitioner was not employed. He is now employed and earning approximately the amount of his food budget. As such, the respondent reasons that Petitioner can contribute his earnings to his food budget thereby eliminating the need for assistance with purchasing food.

Petitioner’s mother asserts that the food budget benefit did not commence until October of 2010. The record does not shed any light on whether the food budget began in 2008 or 2010. However, that discrepancy is not determinative of the issue here. The respondent’s termination of the food budget is based upon a simple mathematical determination, i.e., the Petitioner has additional income now that was not considered when his food budget was initially established.

MA programs, such as Family Care, operate to serve large numbers of people with a limited amount of funds. As stewards of public funding, CMO’s must consider cost-effectiveness when determining whether or not to approve benefit requests. I find that the agency here has established that it properly considered petitioner’s request, and properly denied the request in light of petitioner’s present income. Should Petitioner’s financial, health or living situation change, he may apply for food budget assistance anew; at this time, however, I find no error in the respondent’s termination of Petitioner’s out-of-benefit food budget.

Conclusions of Law

The respondent has established that it properly considered petitioner’s request to continue his out-of-benefit Food budget, and properly denied the request in light of petitioner’s present income.



That petitioner’s appeal is hereby dismissed.

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

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