Family Care enrollment can be backdated if agency error by the ADRC or IM causes unreasonable delay. In this case, the petitioner was enrolled in both MAPP and Family Care; when his MAPP renewal resulted in disenrollment, the agency also disenrolled him from Family Care without first testing his eligibility under Community Waivers MA rules, as it should have. In a decision adopted as final, ALJ Kelly Cochrane recommended backdating the petitioner’s Family Care enrollment to correct this error.
This decision was published with support from the Wisconsin chapter of the National Academy of Elder Law Attorneys and Krause Financial.
The attached proposed decision of the Administrative Law Judge dated April 15, 2025, is hereby adopted as the final order of the Department.
[Request for a rehearing and appeal to court instructions omitted.]Preliminary Recitals
Pursuant to a petition filed on January 30, 2025, under Wis. Admin. Code § DHS 10.55, to review a decision by the My Choice Family Care regarding Medical Assistance (MA), specifically the Family Care Program (FCP) a hearing was held on March 6, 2025, by telephone.
The issue for determination is whether the petitioner’s enrollment date for the FCP should be backdated.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services (DHS)
1 West Wilson Street, Room 651
Madison, WI 53703
By: Holly McGinn
My Choice Family Care
10201 Innovation Dr, Suite 100
Wauwatosa, WI 53226
ADMINISTRATIVE LAW JUDGE:
Kelly Cochrane
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Milwaukee County.
- Petitioner was previously eligible for the MAPP program. In December 2024 petitioner submitted a renewal for his MAPP.
- Petitioner was enrolled in the FCP until January 31, 2025.
- During the MAPP renewal process the agency erred when it failed to test petitioner for Community Waivers MA after his MAPP was set to close February 1, 2025.
- Petitioner was part of a streamlined enrollment process in January 2025.
- Petitioner was disenrolled from the FCP effective February 1, 2025 due to his MAPP ending effective February 1, 2025.
Discussion
The FCP is a MA waiver program that provides appropriate long-term care services for elderly or disabled adults. Wis. Stat. § 46.286; see also Wis. Admin. Code, Chapter DHS 10. To be eligible, a person must meet the program’s financial and non-financial criteria, including functional criteria. Wis. Admin. Code, §§ DHS 10.32(1)(d) and (e). Wis. Admin. Code, §DHS 10.33(2) provides that an FCP applicant must have a functional capacity level of comprehensive or intermediate (also called nursing home and non-nursing home). The process contemplated for an applicant is to test for functional eligibility, then for financial eligibility, and if the applicant meets both standards, to certify him/her as eligible. Then s/he is referred to a care management organization (CMO) for enrollment. See Wis. Admin. Code, §§ DHS 10.33 – 10.41. The CMO then drafts a service plan using CMO selected providers, designing a care system to meet the needs of the person, and the person executes the service plan. At that point, the person’s services may begin.
The regulations and policy also state that agency must process an application for MA/FCP in accordance with rules and policy which require the agency to process and determine eligibility within 30 days of receipt of the application. See § DHS 10.31(6)(a) and Medicaid Eligibility Handbook (MEH) § 2.7, available online at http://www.emhandbooks.wisconsin.gov/meh-ebd/meh.htm#t=policy_files%2F20%2F20.1.htm. During petitioner’s underlying Medicaid Purchase Plan (MAPP) renewal (see companion case DHA Case No. MAP-216959) his MAPP closed for failing to verify. However, the income maintenance (IM) agency appeared at hearing, and with reference to policy (Process Help § 11.3.1.1 Testing Waiver Medicaid Eligibility for Members Enrolled in an LTC Program Outside of CARES, available online at https://prd.cares.wisconsin.gov/help/ph/ph.htm#t=ph-home.htm), conceded that the agency erred in not testing petitioner for Community Waivers MA when his MAPP was set to fail as of January 10, 2025 when the failure to verify occurred. The IM agency conceded that had that error not occurred, petitioner could have had his MA automatically tested and switched to Community Waivers MA as the IM agency already had the referral for the FCP. The IM agency further conceded it did test him, correctly verify, and open his Community Waivers eligibility effective February 1, 2025—but that occurred after he was already disenrolled from the FCP. The petitioner’s CMO, My Choice Wisconsin, had a representative appear and testify that he has not since been re-enrolled because it has not received a referral from the aging and disability resource center (ADRC).
Wis. Admin. Code § DHS 10.41(1) provides that: “The family care benefit is available to eligible persons only through enrollment in a care management organization (CMO) [now referred to as managed care organizations or MCOs] under contract with the department.” Strictly applying this code provision can lead to harsh results. With many entities involved in the administration of the FCP—IM agencies, ADRCS, and CMOs—eligibility determinations sometimes get lost in the shuffle and are not processed within the 30-day timeframe outlined by Wis. Admin. Code § DHS 10.31(6). When this happens, applicants through no fault of their own are at risk of delayed enrollment.
Over the past several years, the DHS has issued final decisions that mitigate the harshness of this type of strict application. See e.g., In re —, DHA Case No. 16-7655 (Wis. Div. Hearings & Appeals March 21, 2016) (DHS) and In re —, DHA Case No. 17-3457 (Wis. Div. Hearings & Appeals Sept. 15, 2016) (DHS). In those cases, the DHS found that where there is an agency error that causes a delay in the processing of an individual’s application for Medical Assistance (i.e., a determination of an individual’s financial and non-financial eligibility by the income maintenance agency) and, in turn, a delay in the individual’s enrollment in an CMO, the DHS may adjust the individual’s enrollment date. The DHS issued a Final Decision that DHA does not have the authority to make a final decision to adjust the enrollment date; rather, only the DHS may issue a final decision adjusting an enrollment date for Community Waivers. See In re —, DHA Case No. 192893.
In this matter there is no evidence that petitioner was responsible for the delay in his enrollment. Because DHS must make the final decision to adjust the enrollment date for the FCP, this Decision is issued as a Proposed Decision.
Conclusions of Law
The petitioner’s FCP enrollment date should be backdated to February 1, 2025.
THEREFORE, it is
Ordered
That if this Proposed Decision is adopted by the Secretary of the Department of Health Services as the Final Decision in this matter, the agency must, within 10 days of the date of the Final Decision, take all necessary administrative steps to revise the petitioner’s FCP enrollment date to February 1, 2025.
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