Family Care enrollment may be backdated if agency error causes a delay in enrollment, but only back to the first date the person was determined functionally eligible, was determined MA eligible, and had signed the enrollment form. In this case, the petitioner contacted the ADRC in September but did not get a functional screen until November, 48 days later. Although the delay in the functional screen was entirely the ADRC’s fault, ALJ Brian Schneider concluded he could only recommend backdating to November 7 “unless the Department agrees, in its discretion, to allow an earlier date” (it did not).
For a similar case, see MGE 211532. In both cases, ALJ Schneider seemed to want to order benefits backdated before the date of the actual, long-delayed functional screens.
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 May 21, 2024, is hereby adopted as the final order of the Department.
Preliminary Recitals
Pursuant to a petition filed April 13, 2024, under Wis. Admin. Code, §HA 3.03, to review a decision by Milwaukee Enrollment Services regarding Medical Assistance (MA) and the Family Care Program (FCP) a hearing was held on May 15, 2024, by telephone.
The issue for determination is whether petitioner’s FCP eligibility can be backdated and to what date.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Kyra Oberg
Milwaukee Enrollment Services
1220 W Vliet St
Milwaukee, WI 53205
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Milwaukee County.
- Petitioner’s representative filed her power-of-attorney paperwork with the Milwaukee Aging and Disability Resource Center (ADRC) on September 20, 2023. She informed the ADRC that she wanted to apply for MA Waivers for petitioner, who was residing in an assisted living facility. ADRC staff informed that she would be contacted in about three weeks because of staff shortages.
- After several calls to the ADRC she finally received an appointment on November 7, 2023 for the completion of a functional screen. At that appointment she signed an FCP enrollment form and was told that she had also had to apply for MA. She completed and filed the MA application with Milwaukee Enrollment Services (MES) on November 11, 2023.
- After several verification requests MES found petitioner to be eligible for MA on December 7, 2023, retroactive to November l, with a deductible. Petitioner’s representative paid the deductible on December 15, 2023, but the agency has no record of the payment (Ms. Oberg stipulated that the payment was unnecessary, and that petitioner should be reimbursed if the check was deposited by the agency).
- As of December 8 petitioner should have been referred to a managed care organization for enrollment. However, MES erroneously delayed the referral, and petitioner was not enrolled until January 26, 2024.
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(l)(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 him/her as eligible. Then he is referred to a Managed Care Organization (MCO) for enrollment. 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.
The regulations 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 Wis. Admin. Code, §DHS 10.31(6)(a) and the MA Handbook, §2.7.
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 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 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 organizations—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. 167655 (March 21, 2016) and DHA Case No. 173457 (9/15/16). 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 MA (i.e., a determination of an individual’s financial and non-financial eligibility by the income maintenance agency) and, in tum, a delay in the individual’s enrollment in an MCO, the DHS may adjust the individual’s enrollment date. The DHS later issued a Final Decision that the Division of Hearings and Appeals 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 (11/5/19).
In this case the first delay was getting the ADRC involved. Petitioner’s representative initially contacted the ADRC on September 18 and filed her authorization paperwork on September 20. She did not get an appointment until November 7, at which time she signed the FCP enrollment form. She applied for MA soon after and was determined to be eligible effective November 1, 2023.
Under the Department’s policy for backdating, the earliest date FCP can be backdated is the date that the person is functionally eligible, MA eligible, and the FCP enrollment form has been signed. See DHA Case No. 167655 (March 21, 2016), cited above. Based on that policy, petitioner’s FCP enrollment could be backdated to November 7, 2023. Petitioner is requesting backdating to September 1, but under any reading of the policy backdating could not go that far because petitioner’s representative did not even inquire about FCP until September 18. The delay from that date until November 7 was entirely due to the ADRC’s failure to make an appointment. ADRC delays are becoming more common, particularly in Milwaukee, but the backdating policy would not allow a date prior to November 7 unless the Department agrees, in its discretion, to allow an earlier date.
Backdating enrollment for the Family Care program is allowed for delays caused by agency error. However, the Division of Hearings and Appeals is limited to making a recommendation of the backdate through a proposed decision. Based on the factual history of this case and the backdating policy history, I would recommend a backdate of petitioner’s enrollment to November 7, 2023.
Conclusions of Law
- The MES erred by failing to refer petitioner to an MCO until late January, 2024 although petitioner was found to be eligible for the FCP on December 7, 2023.
- The FCP can be backdated to November 7, 2023 because all three eligibility components were in effect that date.
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 must, within 10 days of the date of the Final Decision, take all necessary administrative steps to revise the petitioner’s FCP enrollment date to November 7, 2023.
[Request for a rehearing and appeal to court instructions omitted.]