MGE 216321 (05/09/2025)
No right to fair hearing on discharge from CCS program

The attached proposed decision of the hearing examiner dated March 24, 2025, is modified as follows and, as such, is hereby adopted as the final order of the Department.

Preliminary Recitals

A petition was filed on December 17, 2024, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by Rock County Human Services. A hearing was initially scheduled for February 5, 2025; however, no Department of Health Services representative appeared for the hearing. The hearing was rescheduled to February 20, 2025 and was held by telephone.

The issue for determination is whether Rock County Human Services correctly terminated the petitioner from the Comprehensive Community Services program.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:
—

Respondent:
Pam Lano, Division of Medicaid Services
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703

ADMINISTRATIVE LAW JUDGE:
Kate J. Schilling
Division of Hearings and Appeals

Findings of Fact

1. Petitioner (CARES # —) is a — year old resident of Rock County. He receives Medicaid through the Children’s Long Term Support (CLTS) waiver program.
2. The petitioner was born at 28 weeks of gestation. He has a medical history including adjustment disorder, ADD, and ADHD. He had been receiving mental health services under the Rock County Comprehensive Community Services (CCS) program for several years.
3. At school, the petitioner has an IEP and requires a 1:1 teacher’s aide. He is at least 2 grade levels behind in reading and 1 grade level behind in math.
4. The petitioner receives 32 hours of respite hours per week through the CLTS program. These hours are used primarily on weekday mornings to help get the petitioner ready for school as he fights against personal cares, is destructive, does not tolerate transitions, and demonstrates self-injurious behavior such as choking himself. He also bangs his head against the wall when he is frustrated; and he will hit, kick, and bite others. He is incontinent of bladder and bowel.
5. On November 22, 2024, a functional screen was performed by Rock County staff for purposes of redetermining eligibility for the CCS program.
6. On December 10, 2024, Rock County mailed a notice to the petitioner that he no longer qualified for the CCS program and that his termination from the program was effective as of November 22, 2024.
7. On December 17, 2024, the petitioner filed this appeal with the Division of Hearings and Appeals.
8. The petitioner requested that benefits be continued pending the appeal; however, Rock County did not reinstate services in the interim.

Discussion

Wisconsin counties are authorized to create and administer a CCS program under Wis. Stat. § 51.42(3). Respondent, the Department of Health services (Department), has two functions related to the CCS program. First, it is authorized to certify and prescribe standards for county CCS programs under Wis. Stat. §51.42(7). Second, the Department, as the entity responsible for administering the Medical Assistance Program (MA) in Wisconsin, may reimburse services provided to an MA-eligible individual by a CCS program under Wis. Stat. § 49.45(30e). The Department is authorized to create rules for both of these functions. See Wis. Stat. § 49.45(30e)(b) and Wis. Stat. § 51.42(7)(b). Those rules can be found at Wis. Admin. Code Ch. DHS 36. Those rules establish the scope of psychosocial service programs, standards for certification and criteria for determining the need for psychosocial rehabilitation services, and other conditions of coverage of community based psychosocial services under the MA program See Wis. Admin. Code § DHS 36.01.

On November 22, 2024, a functional screen was performed by Rock County staff for purposes of redetermining eligibility for the CCS program. On December 10, 2024, Rock County mailed a notice to the petitioner that he no longer qualified for the CCS program and that his termination from the program was effective as of November 22, 2024. The petitioner filed this appeal with the Division of Hearings and Appeals on December 17, 2024.

The Department representative asserted at the hearing that the petitioner did not have a right to a fair hearing with the Division of Hearings and Appeals (DHA), and that DHA did not have jurisdiction to hear the case. The Department further asserted that the individual counties operate the CCS program, including deciding who is eligible, the eligibility criteria, and contracting with providers. There was also testimony that the Department does not direct providers, make coverage determinations, or have oversight over county decisions. Hence, the Department is not the entity that runs or administers the CCS program.

The Department stated at the hearing that the CCS program is governed by Wis. Admin. Code § DHS 36. The following provision provides that consumers who are on CCS and enrolled in MA have a right to a fair hearing.

(a) Discharge from the CCS shall be based on the discharge criteria in the service plan of the consumer unless any one of the following applies:

1. The consumer no longer wants psychosocial rehabilitation services.
2. The whereabouts of the consumer are unknown for at least 3 months despite diligent efforts to locate the consumer.
3. The consumer refuses services from the CCS for at least 3 months despite diligent outreach efforts to engage the consumer.
4. The consumer enters a long-term care facility for medical reasons and is unlikely to return to community living.
5. The consumer is deceased.
6. Psychosocial rehabilitations services are no longer needed.

(am) When a consumer is discharged from the CCS program, the consumer shall be given written notice of the discharge. The notice shall include all of the following:

1. A copy of the discharge summary developed under par. (b).
2. Written procedures on how to re-apply for CCS services.
3. If a consumer is involuntarily discharged from the CCS program and the consumer receives Medical Assistance, the fair hearing procedures prescribed in s. DHS 104.01 (5). For all other consumers, information on how the consumer can submit a written request for a review of the discharge to the department.

Note: A written request for review of the determination of need for psychosocial rehabilitation services should be addressed to the Bureau of Prevention, Treatment and Recovery, 1 W. Wilson Street, Room 850, P.O. Box 7851, Madison, WI 53707-7851.

(Emphasis added.) Wis. Admin. Code § DHS 36.17(5).

A similar reference to a fair hearing is stated within the provision for consumer rights within the CCS program in Wis. Admin. Code § 36.19(1)(c).

DHS 36.19 Consumer rights.

(1) The CCS shall comply with the patient rights and grievance resolution procedures in s. 51.61, Stats., and ch. DHS 94, and all of the following:

(a) Choice in the selection of recovery team members, services, and service providers.

(b) The right to specific, complete and accurate information about proposed services.

(c) For Medical Assistance consumers, the fair hearing process under s. DHS 104.01 (5). For all other consumers how to request a review of a CCS determination by the department.

Note: A written request for review of the determination of need for psychosocial rehabilitation services should be addressed to the Bureau of Prevention, Treatment and Recovery, 1 W. Wilson Street, Room 850, P.O. Box 7851, Madison, WI 53707-7851.

(Emphasis added.) Wis. Admin. Code § 36.19(1)(c).

While these provisions allow for the fair hearing process to be available for MA recipients who receive services from a CCS program, they do not expand the scope of what fair hearing actions may be brought under Wis. Admin. Code § DHS 104.01(5).

Wisconsin Admin. Code § DHS 104.01(5) provides the following:

(a) Fair hearing.

1. Applicants and recipients have the right to a fair hearing in accordance with procedures set out in this subsection when aggrieved by action or inaction of the agency or the department. This subsection does not apply to actions taken by a PRO or to adverse benefit determinations made by a care management organization or managed care organization under s. 46.287 (2) (a) 1m. or 49.45 (5) (ag), Stats.

***

(b) Purpose of hearing. The purpose of the fair hearing is to allow a recipient to appeal department actions which result in the denial, discontinuation, termination, suspension or reduction of the recipient’s MA benefits. The fair hearing process is not intended for recipients who wish to lodge complaints against providers concerning quality of services received, nor is it intended for recipients who wish to institute legal proceedings against providers. Recipients’ complaints about quality of care should be lodged with the appropriate channels established for this purpose, to include but not limited to provider peer review organizations, consumer advocacy organizations, regulatory agencies and the courts.

(Emphasis added.) Wis. Admin. Code § DHS 104.01(5).

An MA recipient has a right to a fair hearing when aggrieved by an action or inaction of the Department or a county when the county is acting as the agency which administers an income maintenance program. See Wis. Admin. Code § DHS 101.03(8). In this matter, Rock County was not acting in its capacity as an income maintenance agency. Instead, Rock County took this action as a county department responsible for administering a county CCS program. See Wis. Stat. § 51.42(3).

The purpose of a fair hearing is to allow an MA recipient to appeal a Department action which results in the denial, discontinuation, termination, suspension or reduction of the recipients MA benefits. An MA recipient enrolled in a CCS program has a right to a fair hearing if the Departments takes an action to deny, discontinue, terminate, suspend, or reduce, MA’s coverage of services provided by a CCS program. A county’s decision to terminate an individual from a county-administered program is outside the scope of a fair hearing allowed under Wis. Admin. Code § DHS 104.01(5).

The Division of Hearings and Appeals does not have jurisdiction to conduct a fair hearing on a county’s decision to discharge an individual from a CCS program. This decision does not limit or preclude petitioner’s ability to seek any other available remedy to contest Rock County’s decision to discharge petitioner from its CCS program.

Conclusions of Law

The Division of Hearings and Appeals does not have jurisdiction over CCS program discharges.

THEREFORE, it is

Ordered

This Decision is adopted by the Secretary of the Department of Health Services as the Final Decision in this matter.

[Request for a rehearing and appeal to court instructions omitted.]