Aservice that is “duplicative with respect to other services being provided” is not medically necessary. In this case, the petitioner attended adult day services with a certain provider while living with her siblings for several years. But when she moved to an AFH, her MCO sought to reduce those activities by 20% during a six-month trial period, reasoning they were possibly duplicative of the community integration activities provided by the AFH under its contract. ALJ Brian Schneider concluded the MCO’s actions “eminently reasonable.”
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 February 14, 2025, under Wis. Admin. Code, §DHS 10.55, to review a decision by Lakeland Care Inc regarding the Family Care Program (FCP), a hearing was held on April 2, 2025, by telephone.
The issue for determination is whether the agency correctly sought to reduce adult day services by six hours weekly.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Atty. Emily Briski
Hager, Dewick & Zungler, SC
200 South Washington Street, Suite 200
Green Bay, WI 53430-1
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Jennifer Wellhouse
Lakeland Care Inc
3415 Custer St. – Suite C
Manitowoc, WI 54220-4356
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a 61-year-old resident of Brown County.
- Petitioner is developmentally disabled. She requires assistance with activities of daily living, behavior management, and community integration. She is eligible for the FCP with Lakeland Care as her managed care organization (MCO). For the past 40 years she has attended adult day services at — (and its precursor).
- After Covid hit, petitioner moved in with her brother and sister-in-law, who also are her guardians. She continued to attend — five days weekly, six hours per day.
- In December, 2024, petitioner’s guardians decided that they could not handle petitioner’s daily care anymore. They decided to move her into a four-bed Adult Family Home (AFH), chosen by the guardians. An AFH is required to provided home and community integration, and petitioner’s AFH is contracted to provide its residents with home and outside activities.
- Because the AFH is contracted to provide activities, Lakeland staff determined that it potentially could take over petitioner’s community integration, and that potentially the Adult Day program at — would be duplicative of activities available through the AFH. Therefore, Lakeland decided to reduce petitioner’s — program from 30 hours weekly to 24 hours weekly, acknowledging that even that small change could potentially impact petitioner’s mental health and behaviors. The plan was to attempt the change for six months, and to review the success or lack of success of the change at that time.
- On December 16, 2024, Lakeland issued a notice that adult day services would be reduced by six hours weekly. Petitioner filed a grievance, but the committee upheld the action on February 6, 2025 (the committee minutes mistakenly reported that they overturned the action; that mistake has been clarified after the hearing).
- The services were continued at the higher level pending this decision.
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 MCO must develop an Individual Service Plan (ISP) in partnership with the client. Wis. Admin. 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 MCO 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(1)(f). ISPs must be reviewed periodically. Admin. Code, §DHS 10.44(j)(5).
Wis. Admin. Code, §DHS 10.55(1) provides that a person may request a fair hearing to contest the denial of eligibility for the program, a cost share and financial eligibility, or the “entitlement” to the FCP. functional eligibility. In addition, the participant can file a grievance with the MCO over any decision, omission, or action of the MCO. 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. Wis. Admin. Code, §DHS 10.55(2).
FCP policies are found primarily in the Department’s standard contract with the FCP MCOs. The contract is found on-line at https://www.dhs.wisconsin.gov/familycare/mcos/fc-fcp-2025-contract.pdf.
Adult day care services are defined in the contract at Addendum VI, Benefit Package Service Definitions, at page 372, to be “services for part of a day in a non-residential group setting to adults who need an enriched social or health – supportive experience or who need assistance with activities of daily living, supervision, and/or protection.” AFHs are described at page 398 as “places where 3-4 adults, who are not related to the licensee reside, receive care, treatment or services above the level of room and board, and may include up to seven hours per week of nursing care per resident.” They are regulated by the Wis. Admin. Code, §DHS 88. An AFH must “plan activities and services with the residents to accommodate individual resident needs and preferences and shall provide opportunities for each resident to participate in cultural, religious, political, social and intellectual activities within the home and community.” Wis. Admin. Code, §DHS 88.07(1)(c).
It is evident to me that petitioner has grown attached to her — program, and that it is an exceptional program. However, petitioner now is residing in a setting in which the provider is required contractually to provide community integration and activities. Thus, potentially, the FCP is being asked to cover programs that duplicate services. Will the AFH activities be as good as the — ones? At this point we do not know because petitioner’s guardians have not attempted to access the AFH activities (at present petitioner still goes to — five days weekly, and twice per month she goes to her brother’s home, so her contact with AFH activities is virtually non-existent). Furthermore, there is a definite question of whether the FCP is required to cover the best services available versus merely adequate services.
That said, I find that Lakeland’s actions are eminently reasonable. All the MCO is attempting at this point is to see if petitioner can adapt to a slight change in her routine. While Lakeland’s goal is to shift community activities entirely to the AFH to eliminate duplication, they have suggested a six-month trial reducing petitioner’s access to — by just 20%. The trial might fail completely, but I agree that the attempt is warranted. As I stated during the hearing, I cannot judge the MCO action based on a possible action in the future. I find that the proposed reduction is reasonable.
Conclusions of Law
The MCO action of reducing adult day services by 20% to attempt to forestall duplication of community integration and personal activities for petitioner is warranted because an AFH, where petitioner now resides, is required to provide similar services as part of its residential contract; only petitioner’s longstanding relationship with the day service provider justifies a measured change in her routine.
THEREFORE, it is
Ordered
That the petition for review is hereby dismissed.
[Request for a rehearing and appeal to court instructions omitted.]
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