Family Care enrollment can be backdated if agency error by the ADRC or IM causes unreasonable delay. In this case, the petitioner was determined functionally and financially eligible as of December 14, but Income Maintenance simply failed to notify the ADRC of this until January 25. ALJ Jason Grace quickly concluded that enrollment should be backdated to December 14.
This decision was published with support from the Elder Law & Special Needs Section of the State Bar of Wisconsin and the Wisconsin chapter of the National Academy of Elder Law Attorneys.
The attached proposed decision of the Administrative Law Judge dated April 25, 2024, is hereby adopted as the final order of the Department.
Preliminary Recitals
Pursuant to a petition filed on March 12, 2024, under Wis. Admin. Code § HA 3.03, to review a decision by the Milwaukee Enrollment Services regarding Medical Assistance (MA), a hearing was held on April 24, 2024, by telephone.
The issue for determination is whether the petitioner’s enrollment date for the Family Care program should be backdated.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Attorney Annie Gonring
633 West Wisconsin Ave. Suite 2000
Milwaukee, WI 53203
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Tang Couillard
Milwaukee Enrollment Services
1220 W Vliet St
Milwaukee, WI 53205
ADMINISTRATIVE LAW JUDGE:
Jason M. Grace
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Milwaukee County.
- On October 20, 2023, the petitioner applied for MA and Community Waivers.
- On October 26, 2023, the income maintenance (IM) agency processed the application. The case was pended for verification of income.
- On November 13, 2023, IM referred the petitioner to the Aging and Disability Resource Center (ADRC) for a functional screen.
- On November 18, 2023, the ADRC completed the functional screen.
- On December 12, 2023, all requested verification was received by IM.
- The petitioner was functionally and financially eligible for the Family Care program as of December 14, 2023.
- On January 25, 2024, IM notified the ADRC the petitioner had been found financially eligible for the Family Care program.
- The petitioner was enrolled in the Family Care program as of February 1, 2024.
- On March 12, 2024, the petitioner filed an appeal with the Division of Hearings and Appeals. At hearing, counsel for the petitioner requested the petitioner’s enrollment date be backdated to December 14, 2023.
Discussion
The Family Care program (FCP) is a MA waiver program that provides appropriate long-term care services for elderly or disabled adults. Wis. Stat. §46.286; see also Wis. Admin. Code, Chapter DHS 10. To be eligible, a person must meet the program’s financial and non-financial criteria, including functional criteria. Wis. Admin. Code, §§DHS 10.32(1)(d) and (e). 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 for functional eligibility, then for financial eligibility, and if the applicant meets both standards, to certify her as eligible. Then she is referred to a Managed Care Organization (MCO) for enrollment. See Wis. Admin. Code, §§DHS l0.33 – 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.
The regulations and policy state that the income maintenance (IM) agency must process an application for MA/FCP in accordance with rules and policy which require the agency to process and determine eligibility within 30 days of receipt of the application. See §DHS 10.31 (6)(a) and Medicaid Eligibility Handbook (MEH) §2.7.
Once a person meets all the program’s eligibility criteria, she is “entitled to enroll in a care management organization and to receive the family care benefit.” Wis. Adm in. Code §DHS 10.36(1). However, there is no explicit timeline for completing enrollment once eligibility is confinned. 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 managed care organizations or MCOs] under contract with the department.” 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 determinations 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 are at risk of delayed enrollment through no fault of their own.
Over the past several years, the DHS has issued final decisions that mitigate the harshness of this type of strict application. See, e.g., DHA Case No.16-7655 (dated March 21 , 2016) and DHA Case No. 17-3457 (Sept. 15, 2016). In those cases, the DHS found that where there is an agency error that causes a delay in the processing of an individual’s application for Medical Assistance (i.e., a determination of an individual’s financial and non-financial eligibility by the income maintenance agency) and, in turn, a delay in the individual’s enrollment in an MCO, the DHS may adjust the individual’s enrollment date. The DHS issued a Final Decision that DHA does not have the authority to make a final decision to adjust the enrollment date; rather, only the DHS may issue a final decision adjusting an enrollment date for Community Waivers. See DHA Case No. 192893 (November 5, 2019).
Backdating enrollment for the Family Care program is allowed for delays caused by agency error. The IM agency agreed that the petitioner was functionally and financially eligible for the FCP as of December 14, 2023. The IM representative testified that “agency delay” caused the petitioner’s enrollment in the FCP to be delayed. Namely, that IM should have contacted the ADRC on December 14, 2023, for enrollment into the FCP. Instead, that contact did not occur until January 25, 2024. The ADRC representative testified that if IM had contacted the ADRC on December 14, 2023, the petitioner would have been enrolled in the FCP that day. Based on the foregoing, I find petitioner’s enrollment date should be backdated to December 14, 2023.
Because the Department of Health Service must make the final decision to adjust the enrollment date for the Family Care program, this decision is issued as Proposed.
Conclusions of Law
The petitioner’s Family Care enrollment date should be backdated to December 14, 2023.
THEREFORE, it is
Ordered
That if this Proposed Decision is adopted by the Secretary of the Department of Health Services as the Final Decision in this matter, the agency shall, within 10 days of the date of the Final Decision, take all necessary administrative steps to revise the petitioner’s Family Care enrollment date to December 14, 2023.
[Request for a rehearing and appeal to court instructions omitted.]