DHA Case No. FCP 208209 (Wis. Div. of Hearings and Appeals May 31, 2023) (DHS) ↓ Download PDF

In the Family Care program, the MCO must develop an Individual Service Plan with the client that addresses the client’s needs while being cost-effective. The MCO does not have to provide a service if there are less expensive alternatives that achieve the same results. In this case, the petitioner was independent in ADLs and IADLs but wished to move to assisted living, primarily for social reasons; the MCO denied the request. ALJ Brian Schneider agreed with the MCO, finding that the petitioner did not meet the need for assisted living.

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Preliminary Recitals

Pursuant to a petition filed April 4, 2023, under Wis. Admin. Code, §DHS 10.55, to review a decision by Inclusa Inc., regarding the Family Care Program (FCP), a hearing was held on May 24, 2023, by telephone.

The issue for determination is whether the agency correctly denied a request for a change of residence.



Petitioner’s Representative:

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

Brian C. Schneider
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner is a resident of Pierce County.
  2. Petitioner lives at home with her husband. Both household members receive long-term care services. Petitioner is in the FCP with Inclusa as her managed care organization (MCO).
  3. Petitioner is independent in all activities of daily living (ADLs) although she uses a walker for mobility. She has a lift chair to help her with transfers. She manages her own medications and money, and is able to use a phone. She and her husband work together to complete household tasks although they have supportive home care assistance as well. She is of sound mind and does not require overnight care. The agency pays for a driver for her although recently none has been available; a new driver has been hired. Medical and non-medical transportation is authorized.
  4. Petitioner requested to be moved to an assisted living facility in early 2023. By a notice dated February 2, 2023, the agency denied the request. Petitioner sought a grievance, but the committee upheld the denial on March 14, 2023.


The Family Care program, which is supervised by the Department of Health Services, is designed to provide appropriate long-term care services for elderly or disabled adults. It is authorized in the Wisconsin Statutes, §46.286, and is described comprehensively in the Wisconsin Administrative Code, Chapter DHS 10.

The MCO must develop an Individual Service Plan (ISP) in partnership with the client. Wis. Admin. Code, §DHS 10.44(2)(f). The ISP must reasonably and effectively address all of the client’s long-term needs and outcomes to assist the client to be as self-reliant and autonomous as possible, but nevertheless must be cost effective. While the client has input, the MCO does not have to provide all services the client desires if there are less expensive alternatives to achieve the same results. Wis. Admin. Code, §DHS 10.44(1)(f); DHS booklet, Being a Full Partner in Family Care, page 9. ISPs must be reviewed periodically. Admin. Code, §DHS 10.44(j)(5).

Wis. Stat., §46.287(2)(a)1 provides that a person may request a fair hearing to contest the denial of eligibility for the program and the reduction of services under the FCP program, among other things, directly to the Division of Hearings and Appeals. In addition, the participant can file a grievance with the MCO over any decision, omission, or action of the MCO. The grievance committee shall review and attempt to resolve the dispute. If the dispute is not resolved to the participant’s satisfaction, she may then request a hearing with the Division of Hearings and Appeals. Wis. Admin. Code, §DHS 10.55(2).

FCP policies are found primarily in the Department’s standard contract with the FCP MCOs. The contract is found on-line at https://www.dhs.wisconsin.gov/familycare/mcos/fc-fcp-2020-generic-final.pdf. FCP agencies are expected to place members in the least restrictive setting although a member can request alternative services. See Contract, VII.A.7. Services must be cost-effective.

The record shows that petitioner’s condition does not meet the need for assisted living. She is independent in ADLs and Instrumental ADLs. There was testimony that she has more trouble getting around than in the past, but her functional screen has not shown a dramatic decline. Petitioner’s primary reason for wanting the move, to be frank, is for social reasons. She testified that she feels lonely and that she would like to be around others more regularly. Clearly the MCO should assist petitioner in getting out more, and ironically, at the point of the hearing a new driver was being hired. At this point I cannot disagree with her MCO care team that petitioner does not need to reside in assisted living. That may change, but not at this point.

Conclusions of Law

The agency correctly denied petitioner’s requested move to assisted living because she does not require that level of care.



That the petition for review is hereby dismissed.

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

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