Family Care enrollment can be backdated if agency error by the ADRC or IM causes unreasonable delay. In this case, the ADRC told the petitioner not to apply for MA until after the functional screen was completed, then took about 30 days to do the screen. The subsequent MA application took some time to process, so enrollment did not occur until 3 months after the petitioner first contacted the ADRC. ALJ Brian Schneider concluded this was agency error and the petitioner’s benefits should be backdated.
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 February 15, 2024, is hereby adopted as the final order of the Department.
Preliminary Recitals
Pursuant to a petition filed December 28, 2023, under Wis. Admin. Code, §DHS 10.55, to review a decision by Milwaukee Enrollment Services regarding the Family Care Program (FCP), a hearing was held on February 13, 2024, by telephone.
The issue for determination is whether petitioner’s enrollment in the FCP can be backdated.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Atty. Brandon L. Parks
Storm, Balgeman & Klippel, S.C.
1011 N. Mayfair Rd., Suite 200
Wauwatosa, WI 53226-3431
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Princeton Perry
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 resides in a community-based residential facility (CBRF). She was a private-pay resident until September 1, 2023, when her funds were expended.
- Petitioner’s daughter/authorized representative applied for the FCP with the local Aging and Disability Resource Center (ADRC) on August 16, 2023. She was told that a functional screen needed to be completed. She asked about applying for medical assistance (MA) and was told to wait until the functional screening was completed.
- The functional screener did not meet with petitioner until September 15, 2023. Petitioner was found to be functionally eligible for the FCP. She then filed an MA application on October 7, 2023. After some issues with verification, the economic support agency determined on November 2, 2023, that petitioner was financially eligible. That agency informed the ADRC of the determination, and the ADRC enrolled petitioner in the FCP effective November 16, 2023, with Community Care as the managed care organization (MCO). The ADRC chose the enrollment date; petitioner’s daughter had no input into the date.
Discussion
The FCP is a MA waiver program that provides appropriate long-term care services for elderly or disabled adults. Wis. Stats. §46.286; see also Wis. Admin. Code, Chapter DHS 10. 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 her functional eligibility, then her financial eligibility, and if she meets both standards, to certify her as eligible. Then she is referred to a MCO for enrollment in the MCO. 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.
Once a person meets all the program’s eligibility criteria, she 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 the 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 a managed care organization or MCO] under contract with the department.”
The Department explains the process for applying for the FCP as follows:
1. There are three steps to determine eligibility and enrollment in a Family Care MCO. The ADRC helps people with each step. The ADRC will visit the person and complete the Long-Term Care Functional Screen to assess the person’s level of need for services and functional eligibility for the Family Care benefit. Once the individual’s particular needs for long-term care are determined, the ADRC will provide advice about the options available to him or her. Options may include enrollment in Family Care, Partnership, IRIS or a different long-term care program. Or the person could choose to receive services through the Medicaid fee-for-service system, or to privately pay for services.
2. If the person is interested in Family Care or another Medicaid program, the ADRC will help the person contact an income maintenance agency to determine financial eligibility.
3. Once functional and financial eligibility is established, the ADRC contacts the person, either by phone or in person. The ADRC makes sure the person understands what it means to become a member of the MCO, and that he or she understands all the options for long-term care available. If the person decides on Family Care, the resource center finishes the enrollment process and notifies the MCO of the enrollment date.
See the online resource at dhs.wisconsin.gov/familycare/apply.htm. There are thus three key components to the start date—a functional screen, MA eligibility, and a signed enrollment form.
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 organization—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 through no fault of their own are at risk of delayed enrollment.
Over the past several years, the Department has issued final decisions that mitigate the harshness of this type of strict application. See e.g., Division of Hearings and Appeals (DHA) Case No. 167655 (March 21, 2016) and DHA Case No. 173457 (Sept. 15, 2016). In those cases, the Department found that where there is an agency error that causes a delay in the processing of an individual’s application for benefits and, in turn, a delay in the individual’s enrollment in an MCO, the Department may adjust the individual’s enrollment date.
Backdating enrollment in FCP has been allowed for unreasonable delays caused by agency error. However, the Department issued a Final Decision that DHA does not have the authority to make a final decision to adjust the enrollment date; rather, only the Department may issue a final decision adjusting an enrollment date for Community Waivers. See DHA Case No. 192893 (November 5, 2019).
In this case, the petitioner is seeking to backdate her FCP enrollment to September 1, 2023, which was the month that she began to need assistance with paying for the CBRF expense.
No representative of the ADRC appeared at the hearing. Thus petitioner’s daughter’s testimony is the only evidence in the record concerning the delay in processing the functional screen and being told that she should not file the MA application until after the functional eligibility was determined.
Petitioner applied for the FCP on August 16, 2023. There was an overly long delay to complete the functional screening process, and that was the primary reason why it took three months from application to enrollment. During that time petitioner was incurring CBRF costs that she cannot now cover because her assets were spent down. The MA determination was made within the agency’s 30-day time frame. Thus, it is my proposal that petitioner’s FCP should be backdated to October 1, 2023. I cannot recommend September 1 because, based on the August 16 application, if the functional screen had been done on a timely basis, it still could have taken until the end of September to complete the enrollment. In addition, the MA application filing date was in October, so I would question whether the FCP could even go back to September based upon that filing date. Because the Department must make the final decision to adjust the enrollment date for the FCP, this Decision is issued as a Proposed Decision.
Conclusions of Law
Due to a delay in processing petitioner’s functional screen, her FCP enrollment was delayed; had the process been done timely the enrollment could have been done by October 1, 2023.
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 shall, within 10 days of the date of the Final Decision, take all necessary administrative steps to revise the petitioner’s FCP enrollment date to October 1, 2023.
[Request for a rehearing and appeal to court instructions omitted.]