Whether Family Care must cover placement in an Adult Family Home (AFH) or other group home setting depends on the general criteria of medical necessity and cost-effectivness, among others. In this case, the petitioner lived in an apartment and requested funding to move to a residential group setting. Although the petitioner presented a number of letters from providers and others at hearing, ALJ John Tedesco concluded he did not meet his burden of proof, noting in particular the lack of any cost quote or comparison and the fact that the providers did not testify at hearing or provide their opinions under oath.
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 on November 25, 2024, under Wis. Admin. Code § DHS 10.55, to review a decision by the Inclusa Inc/Community Link regarding Medical Assistance (MA), a hearing was held on February 5, 2025, by telephone.
The issue for determination is whether the agency erred in its decision to deny petitioner funding for placement in an adult family home per notice dated 8/26/24.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: R. Swart
Inclusa Inc/Community Link
3349 Church St Suite 1
Stevens Point, WI 54481
ADMINISTRATIVE LAW JUDGE:
John Tedesco
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Langlade County.
- Petitioner is enrolled in the Family Care Program.
- Petitioner lives in an apartment.
- Petitioner requested funding for a group residential setting.
- The FCP denied the request.
- The petitioner filed an internal grievance.
- The grievance decision upheld the denial.
- Petitioner appealed to DHA.
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 CMO must develop an Individual Service Plan (ISP) in partnership with the client. Wis. Adm. 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 CMO 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(2)(f)3; DHS booklet, Being a Full Partner in Family Care, page 9. ISPs must be reviewed periodically. Adm. 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 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 CMO over any decision, omission, or action of the CMO. 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.
The issue in this case is whether the CMO erred in its denial of petitioner’s request for funding for placement in an adult family home or other group home setting. As has been noted many times in the past, there are no standards written in the law or policy on how to make such a determination. It comes down to the general criteria for determining authorization for services—medical appropriateness and necessity, cost effectiveness, statutory and rule limitations, and effectiveness of the service. See Wis. Adm. Code Ch. DHS § 107.02(3)(e).
While it is correct to say that the standard under Wis. Admin. Code § DHS 10.44(2)(f)3 specifically includes that the ISP should assist the enrollee to be as self-reliant and autonomous “as possible and desired” by the enrollee, it is also the long-standing position of the Department, as affirmed in many fair hearing decisions, that the Family Care participant does not have “unfettered choice” in deciding what supports Family Care provides that will serve him or her, what living arrangements will be provided by Family Care, and exactly how the care plan is to be configured.
At the outset, I note that because petitioner is requesting the item, he has the burden to prove that it should be covered by the FCP. Cost of a requested service or item or support is a critical factor and is required to be part of the consideration of a request. Wis. Admin. Code Section DHS 10.44(2)(f)3. Petitioner has requested funding for a group home residential setting. Petitioner offered no quote or estimate of cost. in other words, a request for a theoretical placement in an unnamed residential home. Neither the MCO nor petitioner researched and provided a quote for a particular home that petitioner could live in with appropriate supports, and thus petitioner basically is asking for a declaratory judgment that he should receive funding at an as-yet undetermined cost. A cost-benefit analysis cannot be done because there is no cost provided (when I asked how much such a home would cost, the unspecific answer was from $200-400 per day).
The agency explained that it concluded that alternatives would be more effective for petitioner than a 24/7 supervised group home setting. The agency suggested other options for socialization and ways to meet peers and get out into his community. The agency has offered additional supports in his home. The agency also explained that living in a group home setting is unlikely to be a control on petitioner’s abuse of alcohol.
Petitioner submitted various documents, some from providers. I note that none of the providers testified and none of the assertions in various documents were under oath or subject to testing or clarification. This reduced the weight of any documentary statements significantly. I also note that the letter from — only speculates that placement in an AFH or group home setting may be of benefit to petitioner because petitioner uses poor judgment and turns to alcohol when living alone. I have also considered the letter written by nurse practitioner —. While this letter offered more substance as to the benefits of a group home setting, I again note that the witness did not appear. The positions of these providers could not be tested to clarify their basis of familiarity with the requested setting, or the possible benefits or concerns with alternatives. Furthermore, providers do not have any need to consider the cost-effectiveness of a requested service. While many items and service may benefit a member, most cannot be granted because cost is a required consideration for the agency which operates to serve great numbers with limited funds.
Similarly, petitioner offered letters from group home/AFH operators. None of those individuals testified. Notably, I did not find a quote for the fee in the letters.
Critically, the petitioner’s representative spent all of her time at hearing explaining history in great detail and pointing to deficiencies by the agency over time. Petitioner’s representative noted many concerns such as petitioner leaving food out which has spoiled, or leaving a stove on. She complained that the agency presented inaccurate information at hearing and is not properly supporting her son. But, petitioner’s representative, despite repeated attempts to focus her, did not provide any substantial or persuasive evidence that supports the request as I still have no evidence as to what an adult family home would do for petitioner or provide for petitioner. Petitioner did not provide testimony of any adult family home director, or another person with appropriate knowledge, to explain what services or supports are provided by such a residence that petitioner does not presently have. Petitioner’s representative presented extensive testimony that shows me that she is very dissatisfied with the status quo. But, I am not persuaded that an adult family home is necessary or appropriate or cost-effective based on the record made by petitioner at hearing.
It is a well-established principle that a moving party generally has the burden of proof, especially in administrative proceedings. State v. Hanson, 295 N.W.2d 209, 98 Wis. 2d 80 (Wis. App. 1980). The court in Hanson stated that the policy behind this principle is to assign the burden to the party seeking to change a present state of affairs. In this case, the petitioner, the party making the request, has the burden to show that the request should have been granted. He did not. I note that the presentation by respondent was lacking as well. But, the respondent did not have the burden in this case.
While I have no doubt that petitioner’s mother is not at all happy with Inclusa, and I do not doubt that a group home setting could be of some benefit to petitioner in some ways, that does not lead me to a conclusion that an adult family home must be funded by the Family Care Program.
Conclusions of Law
Petitioner failed to establish that a group home or adult family home residential setting should be funded by the Family care Program.
THEREFORE, it is
Ordered
That this appeal is dismissed
[Request for a rehearing and appeal to court instructions omitted.]
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