FCP 209929 (01/12/2024)
Family Care backdated after inexplicable delay in referral to IM

DHA Case No. FCP 209929 (Wis. Div. of Hearings and Appeals January 12, 2024) (DHS) ↓ Download PDF

Family Care enrollment can be backdated if agency error by the ADRC or IM causes unreasonable delay. In this case, the ADRC sent the Community Waivers referral to IM on June 16, but “for reasons unclear” IM did not get it until July 11. This delayed the petitioner’s ultimate enrollment until August 15. ALJ Kelly Cochrane concluded enrollment should be backdated to July 1 because of this inexplicable and unreasonable delay (the petitioner provided all verification and established functional and financial eligibility by the end of July).

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The attached proposed decision of the Administrative Law Judge dated December 6, 2023, is hereby adopted as the final order of the Department.

[Dated January 12, 2024 by Kirsten L. Johnson, Secretary]

Preliminary Recitals

Pursuant to a petition filed on August 22, 2023, 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 November 9, 2023, by telephone. The case type was changed to “FCP” from “CWA” post-hearing after it was determined that the appeal involves the Family Care Program.

The issue for determination is whether the petitioner’s enrollment date for the Family Care Program (FCP) should be backdated to July 1, 2023.

There appeared at that time the following persons:



Petitioner’s Representative:

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

Kelly Cochrane
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) is a resident of Milwaukee County.
  2. On May 30, 2023 petitioner applied for MA, requesting Community Waivers.
  3. On June 16, 2023 the Aging and Disability Resource Center (ADRC) appears to have sent a referral to the income maintenance (IM) agency for petitioner to be tested for Community Waivers MA. For reasons unclear, the IM agency did not receive the referral until July 11, 2023.
  4. After the referral was received, the IM agency requested verification, which was received timely at the end of July. The MCO then set the petitioner’s enrollment date for August 15, 2023.
  5. On August 22, 2023 the IM agency issued petitioner a notice stating she was eligible for Community Waivers effective August 15, 2023.


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 I 0.31(6)(a) and Medicaid Eligibility Handbook (MEH) § 2.7, available on line at http://www.emhandbooks.wisconsin.gov/meh-ebd/meh. htm#t=policy_files%2F20%2F20.1.htm.

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 10.36(1). However, there is no explicit timeline for completing enrollment once eligibility is confirmed. 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 through no fault of their own are at risk of delayed enrollment.

Over the past several years, the Department has issued final decisions that mitigate the harshness of this type of strict application. See e.g., In re —, DHA Case No. 167655 (Wis. Div. Hearings & Appeals March 21, 2016) (DHS) and In re —, DHA Case No. 173457 (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 application for Medical Assistance (i.e., a determination of an individual’s financial and non-financial eligibility by the income maintenance agency) and, in turn, a delay in the 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, petitioner applied for MA, requesting Community Waivers, on May 30, 2023. On June 16, 2023 the ADRC appears to have sent a referral to the IM agency for petitioner to be tested for Community Waivers MA, however, as the agency’s representative testified, the IM agency did not receive the referral until July 11, 2023. After the referral was received verification was requested and received timely at the end of July. The MCO then set the enrollment date for August 15, 2023.

The petitioner requests the enrollment date be changed from August 15, 2023 to July 1, 2023. The petitioner argues that is the date by which she was functionally and financially eligible and had provided all the requested verification to the agency to establish that eligibility.

The agency agreed at hearing that all of the requested verification was timely received by July 28, 2023 and she was functionally and financially eligible in July 2023. The agency concedes there was some kind of error in the issuance of the referral that resulted in delays in finding the petitioner was financially eligible. This inexplicable delay was through no error on the petitioner’s part.

Backdating enrollment in FCP has been allowed for unreasonable delays caused by agency error. The IM agency is allowed 30 days from the date of receipt of an application to process and make an eligibility determination. I conclude that there was unreasonable delay in the petitioner’s enrollment date for the FCP due to agency errors in processing the petitioner’s application. She was functionally and financially eligible as of July 1, 2023 and had provided all the necessary and requested verification to the agency. There was no dispute amongst the parties on this at hearing. Therefore, I conclude the petitioner’s enrollment in the FCP should be backdated to July 1, 2023.

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

Conclusions of Law

The petitioner’s FCP enrollment date should be backdated to July 1, 2023.



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 July 1, 2023.

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

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