IRIS participants may hire their own workers to provide supportive home care (SHC). The participant is responsible for negotiating “reasonable and customary rates” with providers. In this case, the petitioner asked to increase her worker’s hourly rate from $15 to $18 per hour. While this request was pending, a system-wide increase of $0.75 per hour was implemented. BAPP then approved an increase to only $17 per hour. When she requested the $18/hour rate again, BAPP denied it, saying there was no justification for a third increase in four months. ALJ Brian Schneider concluded the $18/hour rate should be approved, reasoning:
In sum, the situation here is that an unknown BAPP representative changed the Budget Amendment Request from $18 hourly to $17 hourly, with no explanation, putting petitioner in the situation where she could lose her primary SHC provider and leaving her with even higher care costs. The result makes no legal or practical sense.
Preliminary Recitals
Pursuant to a petition filed May 16, 2022, under Wis. Admin. Code, §HA 3.03, to review a decision by TMG regarding the Include, Respect, I Self-Direct (IRIS) program, a hearing was held on September 7, 2022, by telephone. Hearings set for July 6 and August 3, 2022 were rescheduled at the petitioner’s request.
The issue for determination is whether the agency correctly denied a requested increase in petitioner’s supportive home care (SHC) wages.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
—
BOALTC
1402 Pankratz St Suite 111
Madison, WI 53704
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Lyndsay Saatkamp
TMG
1 S. Pinckney St., Ste. 320
Madison, WI 53703
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Dane County.
- Petitioner has a number of diagnoses including cerebral palsy. She has been eligible for IRIS since 2018 with TMG as the contracting agency.
- Since starting in 2018 petitioner has had one consistent SHC worker, —, who provides care 35 hours per week. When — is unavailable petitioner gets care from an agency. The agency charges $32 per hour. Until the recent changes, — was paid $15 per hour.
- Although petitioner has discussed raising — wage in the past, in early 2022 she put in a formal request for the wage to increase to $18 per hour. At approximately the same time, a system-wide increase of $0.75 per hour took effect January 1, 2022. TMG then, on petitioner’s behalf, made a Budget Amendment Request to the Department’s Bureau of Adult Programs and Policies (BAPP) for $18 per hour (which at that point would be an increase of $2.25 over the new $15.75 per hour rate).
- The BAPP approved an increase to $17 per hour. TMG submitted a revised Budget Amendment for that amount, which was approved. Petitioner again requested an increase to $18 per hour, but the request was denied by a notice dated April 18, 2022 because there was no justification for a third increase in four months.
Discussion
The IRIS program was developed pursuant to a Medical Assistance waiver obtained by the State of Wisconsin, pursuant to section 6087 of the Deficit Reduction Act of 2005 (DRA), and section 1915(j) of the Social Security Act. It is a self-directed personal care program.
The federal government has promulgated 42 C.F.R. §441.450 – .484 to provide general guidance for this program. Those regulations require that the Department’s agent must assess the participant’s needs and preferences (including health status) as a condition of IRIS participation. Id., §441.466. The Department’s agent must also develop a service plan based on the assessed needs. Further, “all of the State’s applicable policies and procedures associated with service plan development must be carried out …” Id. §441.468.
SHC is “the direct and indirect assistance with daily functions and individual needs, to promote improved functioning and safety in a participant’s home and community.” IRIS Service Definition Manual, page 10. “The participant is afforded the option of exercising employer authority under this service category. This means that the participant may function as the common law employer or co-employer of individual employees called participant-hired workers.” Id., p. 11. The participant is responsible for negotiating reasonable and customary rates with providers. IRIS Policy Manual, §6.1A.
Other than the broad authority found in the manuals, there are no specifics on how “reasonable and customary” rates paid to caregivers are determined. In this case both sides cite differing customary local rates.
As a first point, I want to make clear that, despite the agency’s assertion that petitioner is seeking a third rate increase in four months, the actual issue is the denial of her requested rate. From the start petitioner has been requesting an increase for her primary SHC provider from $15 hourly to $18 hourly. The initial increase to $15.75 was a fortuitous and coincidental $0.75 hourly increase stemming from American Rescue Plan funding. Petitioner continued her request for $18 hourly, and TMG actually submitted a Budget Amendment Request for $18 hourly. However, an unknown reviewer within the BAPP set the rate at $17 hourly. There is no evidence in the record whatsoever why $17 was chosen over $18. When petitioner received the notice that the rate was set at $17, she immediately reiterated her request for $18. Thus this is not a situation where petitioner is requesting a third rate increase within four months; petitioner is requesting the same increase she has consistently sought.
The provider, —, testified that she is having financial difficulties because of the $17 hourly rate. She has received offers from agencies at higher rates, but prefers to stay with petitioner because of their long-term relationship. The key, in my estimation, is that if — leaves, petitioner will have to hire an agency, if she can find one, to provide the care, and agencies’ rates are substantially higher than $18 per hour.
In sum, the situation here is that an unknown BAPP representative changed the Budget Amendment Request from $18 hourly to $17 hourly, with no explanation, putting petitioner in the situation where she could lose her primary SHC provider and leaving her with even higher care costs. The result makes no legal or practical sense.
Conclusions of Law
The agency failed to provide sufficient reason for approving an SHC wage increase to $17 hourly instead of the requested $18, when the $18 rate allows petitioner to keep her favored caregiver and is more cost effective than the alternative of hiring a home health agency to provider the care.
THEREFORE, it is
Ordered
That the matter be remanded to TMG with instructions to take the necessary action to grant request a new Budget Amendment to increase petitioner’s SHC rate to $18 hourly, and the BAPP shall approve the $18 hourly rate, retroactive to the requested start date. The agency shall do so within 10 days of this decision.
[Request for a rehearing and appeal to court instructions omitted.]