DHA Case No. FCP 210574 (Wis. Div. of Hearings and Appeals November 30, 2023) (DHS) ↓ Download PDF

An MCO must give ten days’ notice of any adverse benefit determination. In this case, the petitioner’s MCO issued a notice on September 29 disenrolling her retroactive to August 21. ALJ Brian Schneider concluded the MCO had not given the required notice and ordered the petitioner’s enrollment be restored, saying: “The simple fact is that an MCO cannot disenroll a member retroactively.”

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Preliminary Recitals

Pursuant to a petition filed October 3, 2023, under Wis. Admin. Code, §DHS 10.55, to review a decision by MY Choice Family Care regarding the Family Care Program (FCP), a hearing was held on November 29, 2023, by telephone. A hearing set for November 15, 2023 was rescheduled at the petitioner’s request.

The issue for determination is whether the agency correctly disenrolled petitioner from the FCP.



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Mary Swab
MY Choice Family Care
10201 Innovation Dr, Suite 100
Wauwatosa, WI 53226

Brian C. Schneider
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner is a resident of Milwaukee County.
  2. Petitioner has been enrolled in the FCP with MY Choice as her managed care organization (MCO). She resides in a residential care apartment operated by —, with the cost of her care there covered by the FCP.
  3. On August 21, 2023, petitioner was sent to — for mental health treatment. She stayed there until August 28, when she was released back to her apartment, where she has remained since then.
  4. In late September, 2023, petitioner’s MY Choice case manager learned about the hospital placement and issued, on Friday, September 29, a notice disenrolling petitioner from the FCP retroactive to August 21, 2023. Then, because more than 30 days had passed since the August 21 disenrollment, MY Choice required petitioner to reapply for the FCP, which she did on October 3. Petitioner was found eligible for the FCP effective October 4. 2023.
  5. Because of the process used by the MCO, — was not paid for services provided on September 30 through October 3, 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.

This case was put forward to me as a request for a backdate of the new enrollment based upon FCP rules that eligibility can begin only as of the date of application and fulfillment of other eligibility requirements. However, I am going in a different direction. Wis. Admin. Code §DHS 10.52(3) reads (I note that the code provision uses the old acronym “CMO” instead of “MCO”):

Clients shall be given written notice of any intended adverse benefit determination at least 10 days prior to the date of the intended adverse benefit determination in accordance with all of the following:

(a) Notification shall be provided as follows: …

2. By the CMO in every instance in which the CMO makes an adverse benefit determination under s. DHS 10.13(1)(b).

(b) The notification of intended adverse benefit determination shall include an explanation of all the following, as applicable:

1. The adverse benefit determination the county agency, resource center or CMO intends to take, including how the adverse benefit determination will affect any services that the applicant or enrollee currently receives.
1m. The effective date of the adverse benefit determination.
2. The reasons for the adverse benefit determination.
3. Any laws that support the adverse benefit determination.
4. The applicant’s or enrollee’s right to file an appeal with the CMO or request a fair hearing with the resource center or county agency.
5. How to file an appeal or a fair hearing and the timelines for doing so.
5m. The circumstances under which expedited resolution of an appeal is available and how to request it.
6. That if the applicant or enrollee files an appeal, he or she has a right to appear in person before the CMO personnel assigned to resolve the appeal.
7. If the adverse benefit determination will affect any services that the enrollee currently receives through the family care benefit, the circumstances in which the enrollee’s services will be continued under s. DHS 10.56 pending the outcome of an appeal, how the enrollee can request that the services be continued, and the circumstances in which the enrollee may be required to repay the costs of the continued services.

The simple fact is that an MCO cannot disenroll a member retroactively. Involuntary disenrollment from the MCO is one of the adverse determinations noted in §DHS 10.13(1)(b). The MCO must give notice ten days prior to the negative action along with the opportunity for the member to request that services be continued pending an appeal.

The MCO did not give petitioner ten days’ notice. Therefore the disenrollment was not valid, and petitioner’s eligibility for FCP and enrollment should be restored for the dates of September 30 though October 3, 2023. I do not need to address the dates of August 28 through September 29 because petitioner was eligible for the FCP during that period, so no overpayment could possibly be sought. If — billed the FCP for services during the period that petitioner was hospitalized, it is possible that the provider was overpaid (and I note pointedly that I have no idea if the provider billed for those services or even if it was prohibited from doing so for the short-term hospitalization).

Conclusions of Law

The MCO incorrectly disenrolled petitioner from the FCP without giving her ten days’ notice of the adverse action.



That the matter be remanded to My Choice Family Care with instructions to restore petitioner’s FCP enrollment and authorizations for the period September 30 though October 3, 2023, within 10 days of this decision.

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

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