An individual is functionally eligible for Community Waivers programs if he or she needs a “nursing home” level of care, as determined by the functional screen. In this case, the petitioner’s functional screen found the petitioner functionally ineligible despite needing adaptive aids to perform 4 ADLs. ALJ Brian Schneider concluded the LTCFS result was in error and the petitioner was functionally eligible at the nursing home level of care, noting:
… although functional screeners are trained to score an ADL as “independent” if the person is able to complete it independently with the use of adaptive equipment or durable medical equipment (DME), the Department has consistently upheld the policy that the need for adaptive equipment is the equivalent of requiring assistance.
This decision was published with support from the Elder Law & Special Needs Section of the State Bar of Wisconsin and the Wisconsin chapter of the National Academy of Elder Law Attorneys.
Preliminary Recitals
Pursuant to a petition filed November 18, 2024, under Wis. Admin. Code, §DHS 10.55, to review a decision by the ADRC of Douglas County regarding Community Waivers eligibility, a hearing was held on December 11, 2024, by telephone.
The issue for determination is whether petitioner meets a level of care for community waivers.
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Chelsea Thompson
ADRC of Douglas County
1316 N 14th St
Superior, WI 54880
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a —-year-old resident of Douglas County.
- Petitioner applied for Community Waivers Medical Assistance in October, 2024. The ADRC of Douglas County conducted a functional screening on October 11. The result of the screen was that petitioner did not meet a nursing home level of care. By a notice dated November 6, 2024, she was informed that she was eligible for only limited-service Family Care, and that she was not eligible for the IRIS program.
- Petitioner’s diagnoses include chronic pain caused by spondylosis, stenosis, obesity, and arthritis, along with Vitamin D deficiency, hypertension, visual impairment, PTSD, and lupus.
- The screener found that petitioner was independent in all activities of daily living (ADLs) but noted that she uses a shower chair and grab bar to bathe, grab bars for toileting, and a walker for mobility and for transferring. She needs assistance with instrumental ADLs (IADLs) meal preparation/groceries, laundry/chores, and transportation (she is unable to drive).
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 IRIS program was developed pursuant to a Medical Assistance waiver obtained by the State of Wisconsin, pursuant to section 6087 of the Deficit Reduction Act of 2005 (DRA), and section 1915(c) of the Social Security Act. It is a self-directed personal care program. Both programs are under the umbrella of the Community Waivers structure.
Wis. Admin. Code, §DHS 10.33(2) provides that an FCP applicant must have a functional capacity level of comprehensive or intermediate; I note here that Wis. Stat., §46.286, uses the terms “nursing home” and “non-nursing home” levels just as the agency in this case. If the person meets the comprehensive (nursing home) level, she is eligible for full services through a managed care organization (MCO), including Medical Assistance (MA). Wis. Admin. Code, §DHS 10.36(1)(a). If the person meets the intermediate (non-nursing home) level, she is eligible for full services only if she is in need of adult protective services or she is financially eligible for MA. Wis. Admin. Code, §DHS 10.36(1)(b). A person eligible under the non-nursing home level is eligible for less FCP services. To be eligible for IRIS, a person must have a nursing home level of care. IRIS Policy Manual, §1.2B.2.
Wis. Admin. Code, §DHS 10.33(2)(c) describes comprehensive functional capacity:
(c) Comprehensive functional capacity level. A person is functionally eligible at the comprehensive level if the person requires ongoing care, assistance or supervision from another person, as is evidenced by any of the following findings from application of the functional screening:
- The person cannot safely or appropriately perform 3 or more activities of daily living.
- The person cannot safely or appropriately perform 2 or more ADLs and one or more instrumental activities of daily living.
- The person cannot safely or appropriately perform 5 or more IADLs.
- The person cannot safely or appropriately perform one or more ADL and 3 or more IADLs and has cognitive impairment.
- The person cannot safely or appropriately perform 4 or more IADLs and has cognitive impairment.
- [Not applicable to petitioner’s situation]
ADLs include bathing, dressing, eating, mobility, and transferring. Wis. Admin. Code, §DHS 10.13(1m). IADLs include meal preparation, medication management, money management, laundry and chores, telephone, transportation, and the ability to function at a job site. Admin. Code, §DHS 10.13(32).
The Department has developed a computerized functional assessment screening system. The system relies upon a face-to-face interview with a quality assurance screener who has at least a bachelor of science degree in a health or human services related field, with at least one year of experience working with the target populations (or, if not, an individual otherwise specifically approved by the Department based upon like combination of education and experience). The screener asks the applicant, or a recipient at a periodic review, questions about his or her medical conditions, needs, cares, skills, activities of daily living, and utilization of professional medical providers to meet these needs. The screener then submits the Functional Screen Report for the person to the Department’s Division of Disability and Elder Services. The Department enters the Long-Term Functional Screen data into a computer program to see if the person meets any of the required levels of care.
If the screener enters information into the functional screen correctly, then it is assumed that the computer will accurately determine the level of care. However, although functional screeners are trained to score an ADL as “independent” if the person is able to complete it independently with the use of adaptive equipment or durable medical equipment (DME), the Department has consistently upheld the policy that the need for adaptive equipment is the equivalent of requiring assistance. See, most recently, Final Decision no. FCP-191012, dated 2/15/19. The policy is based on a Department Functional Screen Information Access version 2019.1 (usually called the “Logic”), which states “An ADL is counted if some degree of help is needed (1 or greater), of if adaptive equipment is required.”
Based on that logic, and coupled with the code definition of comprehensive functional capacity, I can conclude that petitioner cannot safely perform four ADLs (bathing, toileting, mobility, and transfers). She thus meets the subdivision 1 of the definition even without reviewing the need for IADL assistance. The matter will be remanded to the ADRC to change petitioner’s functioning to nursing home level, and to continue processing her community waivers application based on that functional level.
Conclusions of Law
Petitioner meets the nursing home level of care because she required adaptive equipment and DME to complete four ADLs.
THEREFORE, it is
Ordered
That the matter be remanded to the agency with instructions to change petitioner’s level of care to nursing home, and to continue processing her community waivers application based upon that level of care. The agency shall take the action within 10 days of this decision.
[Request for a rehearing and appeal to court instructions omitted.]
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