Medicaid fair hearing appeals must be filed within 45 days of the negative action. In this case, the incapacitated, nursing-home-bound petitioner—really, those acting on his behalf—went through a long period of multiple applications and denials. At first the issue seemed to be that he lacked a legal representative, having only a brother authorized as health care agent. Eventually a guardian was appointed, presumably received some much-needed legal advice, and an application was finally approved. The petitioner then appealed seeking coverage nearly two years back, apparently arguing that incapacity and the lack of a legal representative made his assets unavailable during that time. However, ALJ Brian Schneider concluded the appeal was filed too late, more than 45 days after the most recent denial notice. He rejected the argument that previous denial notices were insufficient because they were never delivered, being mailed to an old address, noting that the petitioner’s representatives continually listed the old address on his many applications.
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 February 18, 2025, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Brown County Human Services regarding Medical Assistance (MA), a hearing was held on July 8, 2025, by telephone. Hearings set for April 2, May 7, June 11, and July 9, 2025 were rescheduled at the petitioner’s request.
The issue for determination is whether petitioner’s appeal seeking backdated institutional MA was timely filed.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Atty. Avery J. Mayne
Von Briesen & Roper, S.C.
411 E Wisconsin Ave., Suite 1000
Milwaukee, WI 53202
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Shelly Quick
Brown County Human Services
111 N. Jefferson St.
Green Bay, WI 54301
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Brown County.
- Petitioner was hospitalized in June, 2023, and in July, 2023, he was transferred to —, a nursing home. He still resides at —.
- An application for MA was filed in June, 2023, while petitioner was hospitalized. The paperwork noted an authorized representative from Aspiron, a company that assists hospitalized individuals apply for MA. That application was denied on August 8, 2023.
- On July 31, 2023, a second application for MA was filed, signed by petitioner’s brother, who has power-of-attorney for health care, and noting his placement at —. The application noted that petitioner’s mailing address was on — in Green Bay. The county did not accept an authorization for representation for — staff signed by petitioner’s brother because the power of attorney is for health care decisions only. The July 31 application was denied on August 31, 2023, with the notice going to the — address and to Aspiron.
- All subsequent notices were sent to both petitioner and to the Aspiron authorized representative. The Aspiron representative took no role in petitioner’s application process after the initial June 23, 2023 application.
- On October 23, 2023, the July 31, 2023 application was resubmitted, still showing — as petitioner’s mailing address. The resubmission was denied by a notice dated November 22, 2023, sent again to the — address.
- On December 14, 2023, a third application was submitted, by — staff, again showing — as petitioner’s mailing address. At that point — staff were assisting petitioner actively, although the county agency still did not accept an official authorization to represent. That application was denied in late January, 2024, according to case comments (no notice was provided as an exhibit by either party).
- On April 24, 2024, the county agency received as return mail the November 3, 2023 sent to petitioner at the — address. Other returned mail dating back to late 2023 were received subsequently.
- On May 16, 2024, — staff filed another application, still showing — as petitioner’s mailing address. That application was denied on June 27, 2024, with petitioner’s notice sent to his brother’s address, a change resulting from the returned mail. A later written notice was sent to petitioner’s guardian—see finding no. 11.
- On July 23, 2024, — staff filed a fifth MA application on petitioner’s behalf. On August 8, 2024, — was appointed as petitioner’s guardian. She took over as the primary person acting on petitioner’s behalf, and all notices thereafter were sent to her.
- On September 5, 2024, the county issued a notice to — that an April 1, 2024 MA application was denied. On October 22, 2024, the county issued a notice to — that a June 1, 2024 application was denied. See Agency Exhibits. Those notices referred to the applications actually filed in May and July, 2024.
- Eventually the county found that petitioner was eligible, but that he had to serve a divestment penalty. A request for waiver of the penalty was granted. Petitioner was granted eligibility effective January 1, 2025. It was determined that petitioner had countable assets over $2,000 that were spent down in January, making him eligible that month. Petitioner was granted a deviation of his $1,899 monthly cost of care to allow payment on his nursing home bill dating back to July, 2023.
- On February 18, 2024, — filed this appeal seeking MA coverage back to 2023. Prior to the hearing Attorney Mayne specified that coverage was sought for the period October 1, 2023 through July 31, 2024 (presumably because assets became countable again with the appointment of the guardian). — agreed that Attorney Mayne could speak for petitioner’s interests for purposes of this appeal.
Discussion
As a first point, Corp. Counsel Schaefer objected to Attorney Mayne’s representation of petitioner, noting that she actually represents —. I conclude that her participation in the hearing is allowable. At this stage petitioner and — have a shared interest—obtaining MA eligibility for him. Furthermore, petitioner’s guardian agreed to having Attorney Mayne advocate on his behalf. I thus am overruling the objection.
Wis. Stat., §49.45(5)(a) provides:
Any person whose application for medical assistance is denied or is not acted upon promptly or who believes that the payments made in the person’s behalf have not been properly determined or that his or her eligibility has not been properly determined may file an appeal with the department pursuant to par. (b). Review is unavailable if the decision or failure to act arose more than 45 days before submission of the petition for a hearing, except as provided in par. (ag) or (ar).
Paragraphs (ag) and (ar) are irrelevant to this situation. See also Wis. Admin. Code §DHS 104.01(5)(a).
I have written lengthy findings of fact for what I conclude is a simple determination. This appeal seeking MA coverage for the period October 1, 2023 through July 31, 2024 is untimely. Petitioner and his advocates were notified in 2023 and 2024 that the various MA applications were denied. No appeals were filed until February, 2025. Petitioner and those representing him could at any time have filed an appeal complaining that the county agency was not acting on his applications promptly and properly, for example that the agency did not act on the attempts to change the authorized representative or that petitioner’s doctor declared him to be incompetent. However, such an arguable lack of promptness and/or impropriety occurred far earlier than 45 days prior to this appeal.
Petitioner’s primary argument is that the county sent notices to him that he did not receive, citing Division of Hearings and Appeals case number MGE-192500 for the proposition that notices must be sent to both the MA applicant and an authorized representative. See Petitioner’s Exhibit Z. This case is distinguished. In case number MGE-192500 the agency sent notices to the authorized representative, but not the applicant himself. Here the agency sent notices to petitioner at the address listed on his applications as his mailing address. Even after the notices started to return to the agency, some six months after they were sent, petitioner’s representatives continued to file applications showing the — address as his mailing address, although the agency changed the mailing address to his brother’s address at that point, until the guardian was appointed.
Furthermore, petitioner’s advocates clearly were aware of the denials because they continued to file new applications. At any time a person acting on petitioner’s behalf could have appealed a denial or the agency’s failure to act properly. No appeals were filed.
Finally, even after — was appointed as petitioner’s guardian, the county sent her a notice dated September 5, 2024, denying MA. She did not appeal within 45 days. She also did not appeal within 45 days of an October 22, 2024 denial notice. Even if I were to assume that the numerous notices sent prior to the appointment of the guardian were defective, an appeal of those denials should have been filed at the latest within 45 days of the September 5 notice. I conclude that this appeal seeking a determination that petitioner was eligible for MA from October 1, 2023 through July 21, 2024, was filed untimely.
Conclusions of Law
Petitioner’s appeal seeking a determination that he was eligible for MA from October 1, 2023 through July 21, 2024, was filed untimely.
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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