FCP 216652 (04/14/2025)
MCO failed to justify ending adult day services when petitioner resided in AFH

Preliminary Recitals

Pursuant to a petition filed on January 15, 2025, 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 March 5, 2025, by telephone.

The issue for determination is whether the FCP agency erred in its termination of adult day services.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:
—

Petitioner’s Representative:
—

Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: K. Hagman
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

1. Petitioner is a resident of Monroe County.
2. Petitioner is enrolled in the Family Care Program (“FCP”).
3. Petitioner lives in an Adult Family Home (“AFH”).
4. Petitioner has been receiving adult day services at the —.
5. The agency issued a notice to petitioner on 11/12/24 informing her that adult day services would be terminated.
6. Petitioner appealed the termination to the internal FCP agency grievance committee.
7. The committee upheld the termination.
8. Petitioner appealed the decision 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. Whenever the local Family Care program decides that a person is ineligible for the program, or when the CMO discontinues an ongoing service in the service plan, the client is allowed to file a fair hearing request. Because a service reduction is sought here, the Petitioner appropriately sought a fair hearing for a further, de novo review of the CMO decision. Wis. Admin. Code §DHS 10.55(1). It is the agency’s burden to prove by a preponderance of the evidence that the reduction in services and hours is appropriate.

The state code language on the scope of permissible services for the FC reads as follows:

DHS 10.41 Family care services. …

(2) SERVICES. Services provided under the family care benefit shall be determined through individual assessment of enrollee needs and values and detailed in an individual service plan unique to each enrollee. As appropriate to its target population and as specified in the department’s contract, each CMO shall have available at least the services and support items covered under the home and community-based waivers under 42 USC 1396n(c) and ss.46.275, 46.277 and 46.278, Stat., the long-term support services and support items under the state’s plan for medical assistance. In addition, a CMO may provide other services that substitute for or augment the specified services if these services are cost-effective and meet the needs of enrollees as identified through the individual assessment and service plan.

Note: The services that typically will be required to be available include adaptive aids; adult day care; assessment and case planning; case management; communication aids and interpreter services; counseling and therapeutic resources; daily living skills training; day services and treatment; home health services; home modification; home delivered and congregate meal services; nursing services; nursing home services, including care in an intermediate care facility for the mentally retarded or in an institution for mental diseases; personal care services; personal emergency response system services; prevocational services; protective payment and guardianship services; residential services in an RCAC, CBRF or AFH; respite care; durable medical equipment and specialized medical supplies; outpatient speech; physical and occupational therapy; supported employment; supportive home care; transportation services; mental health and alcohol or other drug abuse services; and community support program services.

Wis. Admin. Code §DHS 10.41(2) (emphasis in bold added).

The skeletal legal guidance that pertains to determining the type and quantity of services that must be placed in an individualized service plan (ISP) is as follows:

DHS 10.44 Standards for performance by CMOs.

…

(2) CASE MANAGEMENT STANDARDS. The CMO shall provide case management services that meet all of the following standards:

…

(f) The CMO, in partnership with the enrollee, shall develop an individual service plan for each enrollee, with the full participation of the enrollee and any family members or other representatives that the enrollee wishes to participate. … The service plan shall meet all of the following conditions:

1. Reasonably and effectively addresses all of the long-term care needs and utilizes all enrollee strengths and informal supports identified in the comprehensive assessment under par. (e)1.
2. Reasonably and effectively addresses all of the enrollee’s long-term care outcomes identified in the comprehensive assessment under par. (e)2 and assists the enrollee to be as self-reliant and autonomous as possible and desired by the enrollee.
3.  Is cost-effective compared to alternative services or supports that could meet the same needs and achieve similar outcomes.
   …

Wis. Admin. Code §DHS 10.44(2)(f).

Adult day care and daily living skills training are included in the list of covered services identified above. Daily living skills training includes education and skill performance training to support an individual’s ability to independently perform routine daily activities. See, 42 U.S.C. §1396n(c)(5) (habilitation services are “designed to assist individuals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community-based settings…”). Having established that adult day care and daily living skills training can be covered services, the issue is whether the agency has appropriately terminate the adult day service hours.

Here, the agency seeks to terminate day services for petitioner. Petitioner resides in an adult family home. The agency argues that petitioner’s socialization and community integration goals can be met through opportunities provided by the AFH. The agency explained that such opportunities are already part of the AFH rate paid by the FC program, and that the AFH is contractually bound to provide appropriate opportunities. The AFH also employs a community integration specialist who accompanies residents in varied opportunities. The agency also explains that there are community integration and socialization opportunities with peers in the AFH as well. The agency also explains that even with a termination of the day services, the agency will continue to monitor petitioner to ensure that her needs are met.

Petitioner argues that that the day services at — have been necessary for petitioner to encourage appropriate socialization skills and peer interaction and community integration. Petitioner explained that the AFH does not, and is not required to provide the same services. Petitioner explained that the in-home services, including a common-area table, are not comparable to the day service activities such as social skill building. The petitioner differentiates the AFH making things available from the —’s actually encouraging development.

Petitioner further explained that petitioner manifest negative behaviors when not participating in day services. Petitioner explained that insomnia has been an issue during pauses in day services and this has been addressed with medication.

Critically, 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). In a case involving a termination of goods or services, the agency bears the burden to prove that the change in the status quo is appropriate.

I note that the agency made brief mention that cost-effectiveness is at least one of the reasons Inclusa seeks to make the change. But, Inclusa did not offer details on any of the costs of — or of the AFH, or clarify whether the AFH charges additional fees for the socialization that it offers. Cost-effectiveness, or lack of, is not proven without evidence of cost, an analysis or what cost is or is not cost-effective, and why.

Petitioner has lived in various settings over time and also had day services in her daily routine. The agency in this case did not explain why a change is proposed at this time. The burden is on the agency to justify the change. As for the argument that the services already available are sufficient, the only evidence that the AFH-offered services are sufficient is the Inclusa representative’s statement that they are. Inclusa had the burden as Inclusa is seeking to make the change.

It is unclear what has changed in this case to cause Inclusa to wish to make this change. Presumably, Inclusa considered this service approval request previously with the same care and information it has in this case. It may be that a new case manager or care team took over petitioner’s case who recognized deficiencies with the current service approval—this was suggested in one of the documents offered by the agency. Or, it may be that petitioner’s condition has changed to make certain services redundant that have been previously seen at needed—maybe because petitioner moved residences. It may be that Inclusa simply made a mistake and should never have approved day services in the first place. Of course, it is also possible that Inclusa is simply reducing services for other reasons that remain unclear. It may be that Inclusa has recently put “new eyes” on the case and determined that the previous approval(s) of this service were error. If that is so, the agency must explain why the “new eyes” are correct and the “old eyes” were wrong. But, the agency must explain the reason for such a change and simply explaining that the service they have previous found to be justified is now not justified is not sufficient. Again, this is a termination of existing services, not a denial of a new request. The burden is on Inclusa and not on the petitioner to justify the change in the status quo.

Because it is Inclusa’s burden, and it is unclear why this year petitioner’s situation is different than last year’s when day services were approved, I must reverse the reduction as the agency did not meet its burden to show that the reduction was correct.

Conclusions of Law

Inclusa failed to meet its burden to demonstrate that its termination of day services is correct.

THEREFORE, it is

Ordered

That this matter is remanded to the agency with direction to reverse the termination of day services as set forth in the 11/12/24 notice of action and reinstate such services. This action must be completed within 10 days of this Decision.

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