FCP 205395 (08/16/2022)
Family Care retroactive enrollment due to agency error

Preliminary Recitals

Pursuant to a petition filed on June 6, 2022, under Wis. Admin. Code § DHS 10.55, to review a decision by the Milwaukee Enrollment Services regarding Medical Assistance (MA), a hearing was held on July 26, 2022, by telephone.

The issue for determination is whether the Petitioner’s enrollment date for the Family Care program should be backdated to June 1, 2022.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:
—

Petitioner’s Representative:
Attorney Brandon L. Parks
Storm, Balgemar, & Klippel, S.C.
1011 N Mayfair Rd, Ste200
Wauwatosa, WI 53226-3431

Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Princeton Perry
Milwaukee Enrollment Services
1220 W Vliet St
Milwaukee, WI 53205

ADMINISTRATIVE LAW JUDGE:
Debra Bursinger
Division of Hearings and Appeals

Findings of Fact

1. Petitioner (CARES # —) is a resident of Waukesha County.
2. On April 20, 2022, a Long-Term Care Functional Screen was completed for the Petitioner and the Petitioner’s spouse. It determined both were functionally eligible for community waivers.
3. On April 26, 2022, the Petitioner’s representative submitted a Wisconsin MA EBD application for the Petitioner and the Petitioner’s spouse. The cover letter with the application indicates that the Petitioner and the Petitioner’s spouse were applying for Family Care to be effective June 1, 2022. The fax transmittal page indicates that 97 pages were successfully transmitted to the agency that day, including two applications for the Petitioner and the Petitioner’s spouse.
4. On April 28, 2022, the ADRC sent a referral for the Petitioner to the income maintenance agency. The ADRC did not send a referral for the Petitioner’s spouse.
5. On May 2, 2022, the agency began processing the application for the Petitioner.
6. On May 10, 2022, a case summary was issued by the agency to the Petitioner’s representative for the application submitted on behalf of the Petitioner. The notice indicated that any inaccurate information in the summary should be reported to the agency by May 20, 2022.
7. On May 17, 2022, the Petitioner’s representative sent a response to the agency indicating that the case summary inaccurately reported the Petitioner and Petitioner’s spouse were not applying for community waivers. The Petitioner’s representative confirmed that both the Petitioner and Petitioner’s spouse were applying for Community Waivers/Family Care. The representative also supplied corrected information for the burial trusts, money market account, social security benefits, and pension benefits. The representative further indicated in a cover letter that he was of the understanding that the ADRC had submitted its referrals for the Petitioner and the Petitioner’s spouse to the income maintenance agency on April 26, 2022. The fax transmittal page indicates that 10 pages were successfully faxed to the agency that day.
8. On May 19, 2022, the agency’s case comments indicate that it had not received a referral for the Petitioner’s spouse from the ADRC even though the Petitioner’s spouse indicated she was applying for community waivers.
9. On May 20, 2022, the agency issued a case summary to the Petitioner’s representative for the application submitted on behalf of the Petitioner. The case summary indicated that the Petitioner was requesting Community Waivers, but the Petitioner’s spouse was not requesting Community Waivers. The summary also contained inaccurate information about the burial trusts and money market fund. The notice indicated that any inaccurate information in the summary should be reported to the agency by May 31, 2022.
10. On May 20, 2022, the agency issued a request for verification of the checking accounts, savings accounts, and money market accounts owned by the Petitioner and the Petitioner’s spouse. The due date for the information was May 31, 2022.
11. On May 24, 2022, the Petitioner’s representative sent a response to the agency regarding inaccurate information in the summary, specifically that the Petitioner’s spouse was requesting Community Waivers. He also sent corrected information about the burial trusts and money market account and printouts of the bank account statements requested. A cover letter issued with the response clarified that an application for the Petitioner’s spouse had been submitted to the agency on April 26, 2022, and that she was applying for Community Waivers. The letter again reported the ADRC had submitted its referral on April 26, 2022 for the Petitioner and the Petitioner’s spouse. The representative requested that the agency ensure that the Petitioner’s spouse’s application was being processed. In addition, the representative submitted information regarding a divestment question. The fax transmittal page indicates that 22 pages total were faxed successfully to the agency.
12. On May 24, 2022, case comments indicate the Petitioner’s representative contacted the agency and informed the agency that the Petitioner’s spouse was applying for Community Waivers. The agency informed him that it had not received a referral from the ADRC for the Petitioner’s spouse.
13. On May 26, 2022, the agency issued a request for verification to the Petitioner’s representative for burial trusts for the Petitioner and the Petitioner’s spouse.
14. On May 27, 2022, the Petitioner’s representative submitted additional information regarding the burial trusts for the Petitioner and the Petitioner’s spouse. The representative again clarified that the Petitioner’s spouse was requesting Community Waivers and that an application for such had been submitted to the agency on April 26, 2022. The representative also re-sent information regarding a divestment question. The fax transmittal page indicates that 26 pages were successfully faxed to the agency.
15. On June 2, 2022, the agency issued a notice of decision to the Petitioner’s representative informing him that the application for the Petitioner for community waivers was denied due to failure to provide requested verification regarding a divestment issue. There was no mention in the notice regarding the Petitioner’s spouse’s eligibility.
16. On June 6, 2022, the Petitioner’s representative filed an appeal with the Division of Hearings and Appeals.
17. On June 13, 2022, the income maintenance agency requested the Petitioner’s spouse’s referral for community waivers from the ADRC.
18. On June 14, 2022, the agency requested verification regarding liquid assets and a new signature page. The notice also indicated that the agency had reached out to the ADRC for the Petitioner’s spouse’s referral for community waivers.
19. On June 23, 2022, the agency requested verification of life insurance policy and a new signature page.
20. On June 24, 2022, the agency issued a request for verification to the Petitioner’s representative for information about liquid assets and for a new signature page.
21. On June 24, 2022, the agency issued a notice of decision to the Petitioner’s representative informing him that the application was denied for the Petitioner and the Petitioner’s spouse due to income and assets exceeding program limits.
22. On July 13, 2022 and July 18, 2022, the agency issued requests for verification to the Petitioner’s representative indicating it was awaiting information about community waivers eligibility.
23. On July 15, 2022, the agency received an ADRC referral for the Petitioner’s spouse for Community Waivers.
24. On July 27, 2022 and July 28, 2022, the agency issued notices of decision to the Petitioner’s representative informing him that the Petitioner and Petitioner’s spouse were enrolled in Community Waivers effective July 22, 2022.

Discussion

The Family Care program (FCP) is a MA waiver program that provides appropriate long-term care services for elderly or disabled adults. Wis. Stat. §46.286; see also Wis. Admin. Code, Chapter DHS 10. To be eligible, a person must meet the program’s financial and non-financial criteria, including functional criteria. Wis. Admin. Code, §§DHS 10.32(1)(d) and (e). Wis. Admin. Code, §DHS 10.33(2) provides that an FCP applicant must have a functional capacity level of comprehensive or intermediate (also called nursing home and non-nursing home). The process contemplated for an applicant is to test for functional eligibility, then for financial eligibility, and if the applicant meets both standards, to certify him/her as eligible. Then s/he is referred to a Managed Care Organization (MCO) for enrollment. See Wis. Admin. Code, §§ DHS 10.33 – 10.41. The MCO then drafts a service plan using MCO selected providers, designing a care system to meet the needs of the person, and the person executes the service plan. At that point, the person’s services may begin.

The regulations and policy state that IM agency must process an application for MA/FCP in accordance with rules and policy which require the agency to process and determine eligibility within 30 days of receipt of the application. See §DHS 10.31(6)(a) and Medicaid Eligibility Handbook (MEH) §2.7.

Once a person meets all the program’s eligibility criteria, s/he is “entitled to enroll in a care management organization and to receive the family care benefit.” Wis. Admin. Code §DHS 10.41(1) provides that: “The family care benefit is available to eligible persons only through enrollment in a care management organization (CMO) [now referred to as managed care organizations or MCOs] under contract with the department.” Strictly applying this code provision can lead to harsh results. With many entities involved in the administration of the FCP—income maintenance agencies, resource centers, and managed care organization—eligibility determinations sometimes get lost in the shuffle and are not processed within the 30-day timeframe outlined by Wis. Admin. Code §DHS 10.31(6). When this happens, applicants are at risk of delayed enrollment through no fault of their own.

Over the past several years, the DHS has issued final decisions that mitigate the harshness of this type of strict application. See e.g., In re —, DHA Case No.16-7655 (Wis. Div. Hearings & Appeals March 21, 2016) (DHS) and In re —, DHA Case No. 17-3457 (Wis. Div. Hearings & Appeals Sept. 15, 2016) (DHS). In those cases, the DHS found that where there is an agency error that causes a delay in the processing of an individual’s enrollment in an MCO, the DHS may adjust the individual’s enrollment date. The DHS issued a Final Decision that DHA does not have the authority to make a final decision to adjust the enrollment date; rather, only the DHS may issue a final decision adjusting an enrollment date for Community Waivers. See In re —, DHA Case No. 192893.

In this case, the income maintenance agency concedes there were errors by the agency that delayed the processing of the Petitioner’s application. Specifically, the agency concedes that its requests for verification were not specific regarding information that was needed. The evidence also demonstrates that the Petitioner’s representative responded to requests for information promptly and sometimes submitted the information requested on more than one occasion. Further, the evidence is clear that the ADRC failed to correctly and timely submit a referral on behalf of the Petitioner’s spouse to the income maintenance agency. The income maintenance agency could not process the Petitioner’s spouse’s application fully until it received the referral. Despite numerous requests made by the Petitioner’s representative and the income maintenance agency for the referral to be sent by the ADRC, it was not submitted by the ADRC to the income maintenance agency until July 15, 2022. There was no appearance at the hearing by a representative from the ADRC so no explanation as to why there was a significant delay in submitting a referral for the Petitioner’s spouse. The income maintenance agency conceded at the hearing that the Petitioner could have been enrolled in community waivers/Family Care by June 1, 2022, if the agency had issued adequate requests for verification and if the ADRC had forwarded the referral for community waivers in a timely manner.

Backdating enrollment for the Family Care program is allowed for unreasonable delays caused by agency error. I conclude the income maintenance agency and ADRC unreasonably delayed the processing of the Petitioner’s application for Family Care. Therefore, I conclude the Petitioner’s enrollment date should be backdated to June 1, 2022.

Because DHS must make the final decision to adjust the enrollment date for the Family Care program, this Decision is issued as Proposed.

Conclusions of Law

The Petitioner’s enrollment date for Family Care should be backdated to June 1, 2022.

THEREFORE, it is

Ordered

That if this Proposed Decision is adopted by the Secretary of the Department of Health Services as the Final Decision in this matter, the agency must, within 10 days of the date of the Final Decision, take all necessary administrative steps to revise the petitioner’s FCP enrollment date to June 1, 2022.

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