Family Care benefits may be backdated if agency error causes unreasonable delay. In this case, the petitioner was eligible and selected an MCO and enrollment date with the ADRC, but the ADRC worker’s email to the MCO was not received because the attached file was too large. This caused a 5-day delay in enrollment. ALJ Kelly Cochrane concluded this was agency error and the petitioner’s benefits should be backdated.
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 24, 2025 is hereby adopted as the final order of the Department.
Preliminary Recitals
Pursuant to a petition filed on February 10, 2025, under Wis. Admin. Code § DHS 10.55, to review a decision by the Waukesha County Health and Human Services regarding Medical Assistance (MA), specifically the Family Care Program (FCP), a hearing was held on March 25, 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
1 West Wilson Street, Room 651
Madison, WI 53703
By: Megan Debehnke, ADRC Specialist
Waukesha County Health and Human Services
514 Riverview Avenue
Waukesha, WI 53188
ADMINISTRATIVE LAW JUDGE:
Kelly Cochrane
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Waukesha County.
- On January 24, 2025 petitioner’s representative met with a specialist from the aging and disability resource center (ADRC) for enrollment counseling. The parties agreed on an enrollment date of February 1, 2025 for the petitioner to be enrolled in the FCP with Community Care Inc. (CCI) as the petitioner’s care management organization (CMO).
- On January 24, 2025 the ADRC specialist emailed the CMO with petitioner’s enrollment documentation. That email was not received by the CMO due to the size of the attachment.
- On January 28, 2024 the income maintenance agency issued a notice to petitioner advising her that her Community Waivers MA was open effective February 1, 2025.
- On February 5, 2025 petitioner’s representative called the ADRC specialist as there had been no communication from the CMO.
- On February 5, 2025 the ADRC specialist discovered that her email with petitioner’s enrollment information was not received by the CMO due to the size of the attachment.
- Petitioner was enrolled in the FCP on February 5, 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 Wis. Admin. Code § 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. Specific to this case, the ADRC’s role came into play. The ADRC is charged with assisting a person found eligible for the FCP who wishes to enroll in a CMO of the person’s choice. See Wis. Admin. Code § DHS 10.23(2)(i). The ADRC specialist appeared at hearing and conceded that she erred in not sending the enrollment information in a format that the CMO could accept and did not confirm that the enrollment went through. She conceded that had that error not occurred, petitioner could have had her FCP enrollment start as of February 1, 2025 as they had agreed upon during counseling.
Wis. Admin. Code § DHS 10.41 (1) provides that the FCP benefit is available to eligible persons only through enrollment in a CMO under contract with the Department of Health Services (DHS). 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 a 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 her 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.
[Request for a rehearing and appeal to court instructions omitted.]
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