Non-medical transportation can be a benefit provided through Family Care when the member needs assistance with transportation. In this case, Inclusa sought to end the petitioner’s non-medical transportation, claiming vaguely that “petitioner may be able to walk places, or that natural supports such as family and friends and neighbors can drive petitioner.” ALJ John Tedesco found the agency’s case “wholly unpersuasive” and concluded the agency had not met its burden of proof to reduce services.
Note: There are two companion cases to this one. FCP 211106 concluded the petitioner was functionally eligible despite the screening program results, and FCP 210267 concluded the petitioner’s supportive home care benefit could not be ended.
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.
Preliminary Recitals
Pursuant to a petition filed on September 14, 2023, under Wis. Admin. Code § DHS 10.55, to review a decision by the Inclusa Inc/Community Link regarding Medical Assistance (MA), a hearing was held on December 13, 2023, by telephone.
The issue for determination is whether Inclusa correctly terminated non-medical transportation supports as noticed in the 7/24/23 notice.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Attorney Mary Colleen Bradley
Disability Rights Wisconsin
1502 W. Broadway
Monona, WI 53713
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: K. Weber
Inclusa Inc/Community Link
3349 Church St Suite 1
Stevens Point, WI 54481
ADMINISTRATIVE LAW JUDGE:
John P. Tedesco
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # ) is a resident of Sauk County.
- Petitioner is 28 years old with diagnoses including Wegener’s Granulomatosis, polyarthritis, anxiety, and depression.
- Petitioner’s long-term care functional screen indicates that petitioner does not drive and needs assistance with transportation through taxi rides or natural supports.
- The agency had previously been providing non-medical transportation supports.
- On 7/24/23 the agency issued a notice to petitioner informing him that the non-medical transportation supports would be terminated.
Discussion
In this case there has been some confusion, it seems. Inclusa explained at hearing that petitioner did not meet the nursing home level of care for Family Care purposes. This was the subject of a separate case, FCP-211106, which was also heard on this same hearing date. In that case, the dispute related to the DHS LTCFS algorithm finding petitioner not eligible for nursing home level of care and related supports. I have issued my decision in that case and found that the algorithm was incorrect. Petitioner meets the nursing home level of care when the criteria in the Wisconsin Administrative Code are applied. Thus, that decision order the agency to find FCP nursing home level of care eligibility if all other eligibility criteria are met.
The agency’s determination in this case stems from that fundamental error which said that petitioner was not at the NH level of care. The agency’s written submission notes that on 6/22/23 the agency identified that his transportation supports were not within his non-nursing home benefit package. This began, according to the agency, an analysis of how his goals could be met without the transportation supports. The agency further explained in its written submission that “a member must have a nursing home level of care to qualify for non-medical transportation.” As stated above, I have now found that petitioner does, in fact, meet the stated level of care.
At hearing, the agency explained that the non-medical transportation was not terminated solely because petitioner was considered non-nursing home level of care. Instead, the agency explained that petitioner may be able to walk places, or that natural supports such as family and friends and neighbors can drive petitioner. But, the agency does not offer the name or testimony of one individual who is willing to do so. Petitioner did not seem to know which neighbor he has that would be coming over to drive him around.
The agency’s case was wholly unpersuasive. The bottom line here is that the LTCFS states that petitioner needs assistance with transportation. The agency previously offered transportation supports. There is no evidence that petitioner’s condition has improved. And the agency has not identified any other source of support other than in the abstract (some neighbor or friend). The agency seeks to change the status quo here by terminating the SHC previously offered. I have reviewed the hearing testimony and all of the submitted exhibits. The agency offered no persuasive reason to support the termination of non-medical transportation. As the agency has the burden of proof when it seeks to change the status quo I must find in favor of petitioner.
I note that I expect that if petitioner is enrolled in the FCP at the full nursing home level of care following my prior decision in FCP-211106, that petitioner will be assessed for any additional benefits that may be part of such a benefits package including the potential for more transportation supports.
Conclusions of Law
The agency erred in its termination of petitioner’s non-medical transportation as set forth in the 7/24/23 notice.
THEREFORE, it is
Ordered
That the matter is remanded to the agency with direction to reverse the termination of non-medical transportation as set forth in the 7/24/23 notice and restore such supports to the level prior to the appeal; such supports may, however, be increased above this amount. This action must be completed within 10 days of the date of this decision.
[Request for a rehearing and appeal to court instructions omitted.]