FCP 197060 (02/10/2020)
Functional screen program wrong

Preliminary Recitals

Pursuant to a petition filed on December 4, 2019, under Wis. Admin. Code § DHS 10.55, to review a decision by the Care Wisconsin First, Inc regarding Family Care Partnership, a Medical Assistance (MA) home and community based long term care program, a hearing was held on January 29, 2020, by telephone.

The issue for determination is whether Petitioner continues to be functionally eligible for the Family Care Partnership Program at the nursing home level of care.

There appeared at that time the following persons:

PARTIES IN INTEREST:

Petitioner:
—

Petitioner’s Representative:
—

Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: —
Care Wisconsin First, Inc
PO Box 14017
Madison, WI 53708-0017

ADMINISTRATIVE LAW JUDGE:
Teresa A. Perez
Division of Hearings and Appeals

Findings of Fact

1. Petitioner (CARES # —) is a resident of Dane County.
2. Petitioner has been a Family Care Partnership (FCP) participant since at least April 2019 and received services through Care Wisconsin (“MCO”) since at least that time. In April 2019, the MCO reviewed Petitioner’s functional eligibility by completing a long term care functional screen (LTCFS). The LTCFS directed a finding that Petitioner requires a nursing home level of care.
3. The MCO completed another LTCFS in October 2019. This LTCFS directed a finding that Petitioner requires only a non-nursing home level of care.
4. On November 7, 2019, the agency issued a written notice to Petitioner advising her that she was no longer eligible for FCP because she no longer requires a nursing home level of care.
5. On December 4, 2019, Petitioner filed an appeal.
6. Petitioner has diagnoses including but not limited to: arthritis of knee, fibromyalgia, chronic pain, COPD, and asthma.
7. Petitioner requires assistance to safely and appropriately perform the following activities of daily living: bathing and mobility in the home.
8. Petitioner requires assistance to safely and appropriately perform the following instrumental activities of daily living (IADL): meal preparation/grocery shopping; laundry/chores; and employment related tasks.

Discussion

The Family Care and Family Care Partnership (FCP) programs, supervised by the Department of Health Services (DHS), are designed to provide appropriate long-term care services for individuals with physical and developmental disabilities and elderly individuals. See Wis. Stat. §46.286, and Wis. Admin. Code ch. DHS 10.

An individual must meet both financial and functional eligibility criteria to receive FCP benefits. To be found functionally eligible, an individual must require a “nursing home” (also referred to as “comprehensive”) level of care. See Wis. Admin. Code §DHS 10.33(2), Wis. Stat. §46.286, and Contract, Article III, Sec. A.3. at https://www.dhs.wisconsin.gov/familycare/mcos/fc -fcp-2020-generic-final.pdf.

Wis. Admin. Code §DHS 10.33(2)(c) defines the nursing home level of care as follows:

A person is functionally eligible at the comprehensive level [i.e., nursing home level of care] 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:

1. The person cannot safely or appropriately perform 3 or more activities of daily living.
2. The person cannot safely or appropriately perform 2 or more ADLs and one or more instrumental activities of daily living.
3. The person cannot safely or appropriately perform 5 or more IADLs.
4. The person cannot safely or appropriately perform one or more ADL and 3 or more IADLs and has cognitive impairment.
5. The person cannot safely or appropriately perform 4 or more IADLs and has cognitive impairment.
6. 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:
   1. 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.
   2. 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” are, in turn, defined as bathing, dressing, eating, mobility, transferring from one surface to another such as bed to chair and using the toilet. Wis. Adm. Code §DHS 10.13(1m).

“Instrumental activities of daily living” or “IADLs” are defined as 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 §DHS 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.

To determine an individual’s “level of care” (LOC), a trained screener meets with the applicant and gathers relevant information. This information is then entered into a computer program that “calculates” the individual’s LOC; however, the logic built into that computer program has been proven to sometimes direct a LOC finding that is inconsistent with the definition of “nursing home” LOC included in applicable state administrative code provisions. See Wis. Admin. Code §DHS 10.33(c). Where such a conflict occurs, the existing code provisions must control the outcome. See, e.g., DHA Case No. FCP-168914 (Wis. Div. of Hearings & Appeals January 6, 2016) (DHS) and DHA Case No. FCP-166950 (Wis. Div. of Hearings & Appeals October 6, 2015) (DHS).

In this case, the LTCFS tool directed a finding of non-nursing home level of care. However, it is undisputed that Petitioner cannot safely and appropriately perform ADLs (i.e., bathing and mobility in the home and that she cannot safely and appropriately perform the following IADLs: meal preparation/grocery shopping; laundry/chores; and employment related tasks. Petitioner is thus functionally eligible for Family Care at the nursing home level of care pursuant to Wis. Admin. Code §DHS 10.33(2)(c)2.

Conclusions of Law

Petitioner remains functionally eligible for Family Care at the nursing home level of care.

THEREFORE, it is

Ordered

That the petition be remanded to Care Wisconsin and that the agency amend the Long-Term Care Functional Screen to reflect that Petitioner is functionally eligible for Family Care Partnership at the nursing home level of care. Care Wisconsin shall comply with this order within ten days of the date of this decision.