MGE 209925 (01/12/2024)
Family Care enrollment not unreasonably delayed despite agency error

DHA Case No. MGE 209925 (Wis. Div. of Hearings and Appeals January 12, 2024) (DHS) ↓ Download PDF

Family Care enrollment can be backdated if agency error by the ADRC or IM causes unreasonable delay. In this case, the petitioner was eligibile on July 6 but not enrolled until July 21 because the ADRC mistakenly thought it had to wait for a disability determination needed to exempt Wispact funds. Although this might have been agency error, DHS Secretary Kirsten L. Johnson concluded the delay was not unreasonable because the ADRC did ultimately act on July 20, which was the deadline for enrollment given to the ADRC by IM.

Note that ALJ Jason Grace’s proposed decision would have found the delay unreasonable and backdated enrollment to July 7.

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The attached proposed decision of the hearing examiner dated October 5, 2023, is modified as follows and, as such, is hereby adopted as the final order of the Department.

Preliminary Recitals

Pursuant to a petition filed on August 17, 2023, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Outagamie County Department of Human Services regarding Medical Assistance (MA), a hearing was held on September 26, 2023, by telephone. A hearing scheduled for September 20, 2023, was rescheduled at the request of the petitioner’s representative.

The issue for determination is whether the petitioner’s enrollment date for the Family Care Program should be adjusted to July 7, 2023.

There appeared at that time the following persons:



Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Sydney Maertz
Outagamie County Department of Human Services
320 S Walnut St
Appleton, WI 54911-5985

Jason M. Grace
Division of Hearings and Appeals

Findings of Fact

  1. Petitioner (CARES # —) was a resident of Dane County.
  2. At all relevant times involved here, the petitioner lived at —, an adult family home.
  3. On June 5, 2023, the petitioner was found functionally eligible for the Family Care Program (FCP).
  4. On June 8, 2023, the petitioner applied for MA, specifically the FCP.
  5. On July 6, 2023, the petitioner was found financially eligible for FCP.
  6. On July 7, 2023, Income Maintenance (IM) e-mailed the ADRC that the petitioner’s case was “currently pending for the DI determination with DDB as well as Family Care Enrollment. Disability (DI) will be pending for some time, once determined—if determined disabled, WISPACT will not count. If determined NOT disabled, WISPACT funds will count.” The email further indicated that the due date was extended to July 20, 2023 to allow time for the ADRC to submit enrollment.
  7. On July 10, 2023, a notice was issued to the petitioner’s then power of attorney indicating the agency was checking on information he provided and that no action was needed. A due date of July 20, 2023 was provided.
  8. The ADRC did not act on the petitioner’s FCP application between July 7, 2023 and July 20, 2023. This was due to the belief that a decision on the WISPACT funds was needed before proceeding with FCP enrollment.
  9. On July 20, 2023, the IM contacted the ADRC as a reminder that the deadline to submit enrollment for the FCP had been reached.
  10. On or about July 20, 2023, the ADRC contacted the petitioner’s power of attorney to sign the FCP enrollment form.
  11. The FCP enrollment form was signed by the petitioner’s power of attorney, with a signature date of July 21, 2023. The signed enrollment form was received by the ADRC later that same date.
  12. On July 24, 2023, notice was issued that indicated the petitioner was enrolled in Community Waivers as of July 21, 2023, with a monthly cost share of $775.00.
  13. On or about July 28, 2023, the petitioner passed away.
  14. On August 17, 2023, the petitioner’s brother (who previously acted as the power of attorney) filed an appeal with the Division of Hearings and Appeals. The brother requested the petitioner’s FCP enrollment be adjusted to July 7, 2023.


The FCP is a MA waiver program that provides appropriate long-term care services for elderly or disabled adults. Wis. Stats. §46.286; see also Wis. Admin. Code, Chapter DHS 10. 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 his functional eligibility, then his financial eligibility, and if he meets both standards, to certify him as eligible. Then he is referred to a MCO for enrollment in the MCO. See Wis. Admin. Code, §§DHS 10.33 – 10.41. The MCO then drafts a service plan using MCO 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.

Once a person meets all the program’s eligibility criteria, he is “entitled to enroll in a care management organization and to receive the family care benefit.” Wis. Admin. Code §DHS 10.36(1). However, there is no explicit timeline for completing the enrollment once eligibility is confirmed. 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 a managed care organization or MCO] under contract with the depaitment.” Strictly applying this code provision can lead to harsh results. With many entities involved in the administration of the FCP—income maintenance agencies, resource centers, and managed care organization—eligibility determination 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 Department 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 DHA Case No. 17-3457 (Wis. Div. Hearings & Appeals, Sept. 15, 2016) (DHS). In those cases, the Department found that where there is an agency error that causes a delay in the processing of an individual’s application for benefits and, in turn, a delay in the individual’s enrollment in an MCO, the Department may adjust the individual’s enrollment date.

Adjusting enrollment in FCP has been allowed for unreasonable delays caused by agency error. However, the Depaitment issued a Final Decision that DHA does not have the authority to make a final decision to adjust the enrollment date; rather, only the Department may issue a final decision adjusting an enrollment date for Community Waivers. See In re —, DHA Case No. 192893.

ln this case, the petitioner’s brother is seeking to adjust the petitioner’s FCP enrollment to July 7, 2023, the date by which he was functionally and financially eligible for the FCP.

The ADRC worker involved in the case did not appear at the hearing. The IM representative presented the respondent’s case, which involved the exhibits and testimony that support the Findings of Fact above.

Based on the evidence in the record, the petitioner was functionally and financially eligible for the FCP as of July 6, 2023. The ADRC did not further act on the FCP application between July 7, 2023 and July 20, 2023, due to the mistaken belief that a decision on the WISPACT funds was needed before proceeding with FCP enrollment.

Assuming for the sake of argument that ADRC’s failure to act on the petitioner’s application between July 7, 2023 and July 20, 2023 was agency error, the petitioner’s enrollment in the FCP may only be adjusted if that error resulted in an unreasonable delay in the petitioner’s enrollment date. The ADRC contacted the petitioner’s power of attorney to sign the FCP enrollment form on or around July 20, 2023, which was within the time frame given to the ADRC by the IM. The petitioner’s power of attorney signed the enrollment form on July 21, 2023 and the petitioner was enrolled in the FCP as of that day. Because the ADRC acted within the time frame given by the IM, the petitioner’s enrollment in the FCP was not unreasonably delayed.

Conclusions of Law

The petitioner’s FCP enrollment date cannot be adjusted to July 7, 2023 as his enrollment in the FCP was not unreasonably delayed.



That the appeal is dismissed.

[Request for a rehearing and appeal to court instructions omitted.] [Dated January 12, 2024 by Kirsten L. Johnson, Secretary] [See the attached PDF for ALJ Jason Grace’s original proposed decision, which proposed backdating enrollment to July 7, 2023.]

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