An individual is functionally eligible for Family Care if he or she needs a “nursing home” level of care, as determined by the functional screen. In this case, the petitioner’s functional screen found her functionally ineligible because she needed help with only 1 ADL and 5 IADLs (including laundry/chores, which perhaps the computer program did not count), but the screener noted she needed grab bars for bathing and toileting. ALJ Debra Bursinger concluded the LTCFS was in error and the petitioner was functionally eligible at the nursing home level of care because she needed assistance with at least 3 ADLs and 5 IADLs, noting: “The use of adaptive aids has been determined to be the equivalent to requiring human assistance and therefore is sufficient to find that the petitioner requires assistance with the related ADL.”
Preliminary Recitals
Pursuant to a petition filed on September 26, 2019, under Wis. Admin. Code § DHS 10.55, to review a decision by the ADRC of Sheboygan County regarding Medical Assistance (MA), a hearing was held on November 20, 2019, by telephone.
The issue for determination is whether the agency correctly determined the Petitioner is functionally eligible for the Family Care program at a non-nursing home level of care.
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: —
ADRC of Sheboygan County
650 Forest Avenue
Sheboygan Falls, WI 53085
ADMINISTRATIVE LAW JUDGE:
Debra Bursinger
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Sheboygan County. She has medical diagnoses that include high cholesterol, anemia, fibromyalgia, migraines, visual impairment and cognitive impairment. She has a history of intracranial abscess that causes ongoing cognitive impairment.
- On or about August 22, 2019, the ADRC completed a Long Term Care Functional Screen (LTCFS) for the Petitioner. The screener determined the Petitioner requires assistance with 1 activity of daily living (ADL): bathing. The screener noted that the Petitioner requires the use of grab bars for bathing and toileting. The screener determined the Petitioner requires assistance with 5 instrumental ADLs (IADLs): meal prep, money management, laundry/chores, transportation and employment. The screen found the Petitioner to be at a non-nursing home level of care.
- The agency issued an undated notice (and lacking any name) to the Petitioner indicating that she could enroll in the Family Care program at a non-nursing home level of care. It further informed her that she was not functionally eligible for the IRIS program.
- On September 26, 2019, the Petitioner filed an appeal with the Division of Hearings and Appeals.
Discussion
The Family Care program (FCP), which is supervised by the Department of Health Services, is designed to provide appropriate long-term care services for elderly or physically/developmentally disabled adults. It is authorized under Wisconsin Statute, §46.286, and is described comprehensively in the Wisconsin Administrative Code, Chapter DHS 10. In order to qualify for FCP services, with certain exceptions not applicable here, a person’s functioning must be such that they would otherwise require institutional care, which under the Administrative Code is defined as a “comprehensive functional capacity level”. Wis. Stat. §46.286(1)(a); Wis. Admin. Code §DHS 10.33(2)(c).
To be found eligible for FCP, the applicant must undergo an assessment of his/her needs and functioning. The Wisconsin Department of Health Services has made efforts to improve the statewide accuracy of functional assessments by designing and implementing a computerized functional assessment screening system called the Long-Term Care Functional Screen (LTCFS). The LTCFS is part of a computer program developed by the Department to determine an individual’s level of care, which is also known as a functional level, and ultimately, the individual’s eligibility for Family Care services. Wis. Admin. Code. § DHS 10.33(2)(a). A screener starts the assessment by completing a face-to-face interview with the applicant. Policy requires the screener to then enter the data/information obtained from the interview into the Department’s LTCFS computer program. The LTCFS program is supposed to follow the skeletal definitions from the federal Medicaid rules for Intermediate Nursing Care and institutional Developmental Disability facilities. Agencies use a person’s computed functional level of care produced by the LTCFS program to determine whether a person will be eligible for FCP and/or whether a service will be covered. Generally, the level of supportive home care services depends upon whether a person is determined to require a nursing home level of care or non-nursing home level of care. On January 9, 2017 DHS issued new instructions for completing the LTCFS.
The terms “nursing home level of care” and “non-nursing home level of care” are given general definitions in Wis. Stats §46.286(1)(a):
(a) Functional eligibility. A person is functionally eligible if the person’s level of care need, as determined by the department or its designee, is either of the following:
1m. The nursing home level, if the person has a long-term or irreversible condition, expected to last at least 90 days or result in death within one year of the date of application, and requires ongoing care, assistance or supervision.
2m. The non-nursing home level, if the person has a condition that is expected to last at least 90 days or result in death within 12 months after the date of application, and is at risk of losing his or her independence or functional capacity unless he or she receives assistance from others.
In further defining levels of care for the Family Care Program, Wis. Admin. Code §10.33(2)(c) refers to “nursing home level of care” as “Comprehensive functional capacity”:
Comprehensive functional capacity level. A person is functionally eligible at the comprehensive level if the person requires ongoing care, assistance or supervision from another person, as is evidenced by any of the following findings from application of the functional screening:
- The person cannot safely or appropriately perform 3 or more activities of daily living.
- The person cannot safely or appropriately perform 2 or more ADLs and one or more instrumental activities of daily living.
- The person cannot safely or appropriately perform 5 or more IADLs.
- The person cannot safely or appropriately perform one or more ADL and 3 or more IADLs and has cognitive impairment.
- The person cannot safely or appropriately perform 4 or more IADLs and has cognitive impairment.
- The person has a complicating condition that limits the person’s ability to independently meet his or her needs as evidenced by meeting both of the following conditions:
- The person requires frequent medical or social intervention to safely maintain an acceptable health or developmental status; or requires frequent changes in service due to intermittent or unpredictable changes in his or her condition; or requires a range of medical or social interventions due to a multiplicity of conditions.
- The person has a developmental disability that requires specialized services; or has impaired cognition exhibited by memory deficits or disorientation to person, place or time; or has impaired decision making ability exhibited by wandering, physical abuse of self or others, self neglect or resistance to needed care.
Activities of daily living, or ADLs, refer to “bathing, dressing, eating, mobility, transferring from one surface to another such as bed to chair and using the toilet.” Wis. Admin. Code, §DHS 10.13(1m). Instrumental activities of daily living, or IADLs, refer to “management of medications and treatments, meal preparation and nutrition, money management, using the telephone, arranging and using transportation and the ability to function at a job site.” Wis. Admin. Code, § 10.13(32). In addition, the LTCFS tool lists “Laundry and/or Chores” as an IADL. It is thus clear that departmental policy considers the performance of laundry and chores to be an IADL. This is consistent with federal Medicaid regulations which indicate that IADLs include the performance of essential household chores. See 42 C.F.R. § 441.505.
The use of adaptive aids has been determined to be the equivalent to requiring human assistance and therefore is sufficient to find that the petitioner requires assistance with the related ADL. See DHS Deputy Secretary Final Decision FCP-169534 (Sept. 7, 2016); DHA Decision Case No. 175205 (Sept. 30, 2016); DHA Decision Case No. 178455 (April 13, 2017); DHA Decision Case No. CWA-181224 (Aug. 3, 2017) DHA Decision Case No. 186806 and DHA Decision Case No. 196198.
In this case, I conclude that the Petitioner meets the criteria of DHS 10.33(2)(c)2, 3, 4 and 5 because it is undisputed from the LTCFS that the Petitioner requires assistance with 3 ADLs (bathing, mobility and toileting) and 5 IADLs (meal prep, money management, laundry/chores, transportation and employment).
Conclusions of Law
The Petitioner is functionally eligible for the Family Care program at a nursing home level of care.
THEREFORE, it is
Ordered
That this matter is remanded to the agency to take all administrative steps necessary to revise its records to reflect that the Petitioner is functionally eligible for the Family Care program at a nursing home level of care. These actions shall be completed within 10 days of the date of this decision.
[Request for a rehearing and appeal to court instructions omitted.]