Individual choice of provider is a main tenant of the CLTS program. Even when a background check on a proposed provider reveals negative—but not disqualifying—findings, the County Waiver Agency must respect the participant’s choice “unless there is compelling justification not to do so.” In this case, the participant wanted to hire a respite caregiver whose background check revealed charges—but no ultimate convictions—of theft, disorderly conduct, child abuse, and domestic abuse. In a final decision, DHS Secretary Kirsten Johnson concluded the County Waiver Agency must show more than a disagreement regarding the severity of the negative findings to have a “compelling justification” to override the participant’s choice of provider.
Note that the final decision overrode ALJ Brian Schneider’s proposed conclusion that a CLTS participant does not have the right to appeal when a proposed provider fails a background check. The provider in this case did not, in fact, fail the background check. (See the attached PDF for the proposed decision.)
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 hearing examiner dated December 21, 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 October 19, 2023, under Wis. Admin. Code, § HA 3.03(1), to review a decision by the Fond du Lac County Dept. of Social Services regarding the Children’s Long-term Support program (CLTS), a hearing was held on December 6, 2023, by telephone. The record was held open two weeks for petitioner to submit additional information. No additional information was received, but in light of the decision, the additional information would be irrelevant.
The issues for determination are (1) whether a CLTS member can appeal a caretaker’s background check results, and (2) if so, whether the agency correctly denied approval of a proposed caregiver’s background check.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Atty. Jeanne E. Bell
Fond du Lac County Dept. of Social Services
50 N Portland St
Fond du Lac, WI 54935
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is an 11-year-old resident of Dodge County.
- Petitioner has been eligible for CLTS for several years. Fond du Lac County DSS began to handle her case in 2022 after she initially was under Dodge County’s case management.
- Petitioner was hospitalized for approximately seven months. When she returned home in the spring, 2023, her mother asked for approval by the CLTS for a caregiver, A.S. (I will use the caregiver’s initials for confidentiality purposes), to act as a respite care provider. A.S. was a respite care and personal care worker (PCW) for petitioner when Dodge County handled the case.
- Fond du Lac County’s service coordinator, Ms. Knight, ordered a background check on A.S. The report that was returned showed no disqualifying convictions but it did show concerning arrests and charges against A.S. In 2015 she was charged in — with misdemeanor theft and disorderly conduct; that charge was dismissed after A.S. completed a deferred prosecution. In September, 2021 A.S. was charged with felony child abuse and misdemeanor disorderly conduct in —; that charge also was dismissed in September, 2022 after A.S. completed a deferred prosecution. Then, in December, 2022, A.S. was charged in — with misdemeanor disorderly conduct with a domestic abuse enhancer; when the background check was done that charge was pending. A.S. eventually pled no contest in late July, 2023 to a county ordinance violation disorderly conduct with domestic abuse enhancer, with a fine as the penalty.
- Ms. Knight met with petitioner’s mother on May 19, 2023, to discuss her concerns over A.S.’s background, that although the record did not include any convictions leading to automatic denial, the findings were negative based on the three charges from 2015, 2021, and 2022. Petitioner’s mother wanted to hire A.S. despite that history, but the agency decided to deny approval for A.S. due to compelling justification.
- On July 26, 2023, the agency sent petitioner’s mother a notice that A.S. would not be approved as a respite provider due to the background check results. The notice informed petitioner’s mother that she could appeal to the Division of Hearings and Appeals within 90 days. She filed an appeal on October 19, 2023.
Discussion
The CLTS program started on January 1, 2004 after the federal Department of Health and Human Services informed the state department that federal MA funding would no longer be available for in-home autism services. The department drafted and released the Medicaid Home and Community-Based Waiver Manual for the CLTS Program (“the Manual“), with a current update as of October, 2023. It can be found on the internet at https://www.dhs.wisconsin.gov/publications/p02256.pdf.
The CLTS program keeps a registry of qualified providers. Manual, §4.1. The local County Waiver Agency (CWA) can access a provider’s status on the registry and can allow approval of a provider if she is qualified on the registry. Manual, §4.2.2. If a new caregiver or a “sole proprietor” caregiver is suggested, the CWA must ensure that a background check is completed. Manual, §4.2.3. From the background check, a caregiver cannot be approved if there has been conviction of a “serious crime” or an offense deemed to be substantially related to the service to be provided. Manual, §4.2.3.1. If a participant requests approval a specific caregiver, and person’s record shows no convictions, but does contain a negative finding, the negative finding must be reviewed with the participant. If the participant nevertheless wants to employ the provider after the review, the CWA must respect the choice unless there is compelling justification not to do so. Manual, §4.2.3.2.
Here petitioner’s preferred caregiver had no convictions but did have negative findings, specifically two crimes for which she completed deferred prosecutions, one of which was for child abuse, and a third pending crime that involved domestic abuse. The CWA noted that when a person enters deferred prosecution, she in effect admits to the elements of the crime’s charges. See agency submission, exhibit E. Since one of the crimes charged was child abuse, the CWA noted A.S.’s admission to the charge, and noted further that even after going through deferred prosecution twice, A.S. again found herself charged with misdemeanor disorderly conduct with a domestic abuse enhancer in late 2022.
Nevertheless, individual choice of provider is a main tenant of the CLTS program. The CLTS manual clearly states that if the participant wants to employ a provider despite negative findings, in the absence of a conviction, the participant’s choice must be respected “unless there is compelling justification not to do so.” Manual, §4.2.3.2. While “compelling justification” is not defined, clearly the “compelling justification” must be more than a mere disagreement with the CWA regarding the severity of the negative findings. Merely disagreeing with the CWA could not be a sufficiently compelling justification, or the review of negative findings with the participant would be meaningless and the choice to hire the provider despite negative findings would be never available.
Conclusions of Law
The CWA must show more than a disagreement regarding the severity of the negative findings in order to override a participant’s choice of provider when the prospective caregiver’s background check reveals no record of conviction or substantiated finding by a governmental agency of a barring offense, serious crime, or substantially related crime but does contain a negative finding.
THEREFORE, it is
Ordered
That the decision by the Fond du Lac County Dept. of Social Services is reversed, and the matter is remanded for a factual determination of whether the Fond du Lac County Dept. of Social Services had a “compelling justification” to not approve A.S. as a respite provider.
[Request for a rehearing and appeal to court instructions omitted.]