Family Care services must generally be from appropriate and qualified providers, be fair and safe, serve to maintain community connections, and be cost effective. In this sympathetic case, the petitioner—a competent 43-year-old man with muscular dystrophy, severe respiratory issues, and fragile health—asked to be moved from a nursing home to a community living arrangement so he could work. The plan included support from staff and cost less than the nursing home, but Inclusa denied the request as being unsafe. Though he noted that “petitioner is a mentally competent adult with a strong support team, and his desire to get back to community is precisely the idea of the FCP,” ALJ Brian Schneider concluded the petitioner had not shown a sufficient plan that would make the community a safer placement than the nursing home.
This decision was published with support from the Wisconsin chapter of the National Academy of Elder Law Attorneys and Krause Financial.
Preliminary Recitals
Pursuant to a petition filed October 19, 2024, under Wis. Admin. Code, §DHS 10.55, to review a decision by Inclusa regarding the Family Care Program (FCP), a hearing was held on January 15, 2025, by telephone. Hearings set for December 4 and December 17, 2024 were rescheduled at the petitioner’s request.
The issue for determination is whether petitioner’s plan to move to a community residence cannot be considered safe.
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Brooke Jaeger
Inclusa
3349 Church St Suite 1
Stevens Point, WI 54481
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a 43-year-old resident of Brown County.
- Petitioner has muscular dystrophy. He experienced respiratory failure in April, 2024, and is now ventilator dependent with a tracheostomy. He is dependent for all activities of daily living (ADLs) and most instrumental ADLs (IADLs). He has a urinary catheter, bowel ostomy, and receives medication through a PEG tube. He is at high risk of a respiratory virus. He can go off the ventilator for up to eight hours but is at risk of respiratory failure that would require immediate assistance. He is mentally competent and is able to work for a messaging company that is holding his position open.
- Petitioner is a participant in the FCP with Inclusa as his managed care organization (MCO). He currently resides in a nursing home at a cost of $971.02 per day. He cannot work at his job while in the nursing home because it lacks an independent internet connection.
- On August 12, 2024, petitioner requested a move back to an apartment. He has two support staff ready to work with him as well as a registered nurse who would direct his cares. He would need two staff members to provide daily cares as well as a live-in staff member. Petitioner’s plan for community living would cost $881.87 per day.
- By a notice dated August 21, 2024, Inclusa denied the request for community living because it determined that it would be too risky, that the nursing home was the best means to support his health. Petitioner filed a grievance, but the committee upheld the denial by a notice dated September 30, 2024.
Discussion
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. Admin. Code, §DHS 10.55(1) provides that a person may request a fair hearing to contest the denial of eligibility for the program, a cost share and financial eligibility, or the “entitlement” to the FCP. functional eligibility. 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, he 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 at https://www.dhs.wisconsin.gov/familycare/mcos/fc-fcp-2025-generic-final.pdf. Important to this case is the general language of FCP services. Services must be from appropriate and qualified providers, be fair and safe, serve to maintain community connections, and be cost effective. Contract, Part VII.A.1.
In this case the MCO focused on the idea of safety. It determined that the nursing home best supports petitioner’s outcome as the community option would be too risky, given the fragile state of petitioner’s health. Petitioner counters that the community option is less expensive, that he will have appropriate and qualified providers, and that it will get him back into the community, including allowing him to work again (there was some confusion about the job, with Inclusa staff believing that petitioner could work while in the nursing home, but petitioner explained that he cannot do so for practical, technological reasons).
Petitioner provided evidence from family, friends, and his proposed nurse that support his move. Missing from his evidence is a statement from his doctor supporting the move. That said, petitioner is a mentally competent adult with a strong support team, and his desire to get back to community is precisely the idea of the FCP. Frankly, if it were me in petitioner’s situation, the ability to work at a job, even from home, would be the primary thing that would keep me going. The problem is that having a nurse and two potential employees is not a sufficient plan to put in place given petitioner’s many care needs and health risks. I thus will not order the MCO to approve petitioner’s move back to the community at this time. I strongly urge the parties to keep working on a potential move. It now has been five months since petitioner’s original request, and he seems to be getting along quite well. The advice by — from Disability Rights on how to proceed is, I believe, spot on (see page 5 of petitioner’s hearing submission).
Conclusions of Law
The MCO’s denial of a request to move petitioner back to his apartment was appropriate as it was not shown to be a safer placement than his current nursing home placement.
THEREFORE, it is
Ordered
That the petition for review is hereby dismissed.
[Request for a rehearing and appeal to court instructions omitted.]
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