Beginning on the date of enrollment, an MCO must pay for needed services, including the continuation of current services “necessary to ensure health and safety and continuity of care,” until the full assessment and member-centered plan are completed. In this case, the petitioner lived in a CBRF and the family had hired a separate companion caretaker to supplement the CBRF’s services. Although Community Care staff had assured the family that the companion would be at least initially covered under the continuity of care policy—apparently assuming the companion was a service provided by the CBRF—ALJ Brian Schneider concluded the companion was not a necessary service and the MCO was not liable for it.
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 Community Care regarding the Family Care Program (FCP), a hearing was held on February 13, 2024, by telephone.
The issue for detennination is whether FCP should pay for companion care for two weeks after petitioner’s enrollment.
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Atty. Brandon L. Parks
Stonn, 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: Kelly Her
Community Care
1801 Dolphin Drive
Waukesha, WI 53186
ADMINISTRATIVE LAW JUDGE:
Brian C. Schneider
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Milwaukee County.
- Petitioner resides at —, a community-based residential facility (CBRF). She was a private-pay resident until September 1, 2023, when her funds were expended.
- Petitioner applied for and was enrolled in the FCP effective November 16, 2023, with Community Care as her managed care organization. Community Care staff had contact with petitioner’s daughter/authorized representative during the enrollment process. They decided to meet on November 30, 2023, and petitioner’s daughter was assured that CBRF care would remain in place until a plan or care could be formulated that date.
- Leading into the summer, 2023, petitioner was undergoing stress and anxiety, resulting in difficulty getting to sleep. With the concurrence of CBRF staff, petitioner’s family hired a companion caretaker to sit with petitioner in the after-dinner hours, paid by the family, as the CBRF did not have staff to handle the service. The companion served to alleviate petitioner’s anxiety. [I note here that the companion care was provided by —, which I assume is a separate entity from the CBRF within the — network.]
- When discussing the continuation of care between November 16 and November 30, Community Care staff were under the impression that the companion was part of petitioner’s regular CBRF care. Petitioner’s daughter thus assumed that the companion care would come under the continuity of care policy as she was told that CBRF services would continue. The companion billed some $1,100 in the two-week period.
- When the plan of care meeting occurred on November 30, it was determined that the companion care would not be covered within petitioner’s plan of care. Instead she was shifted to a Memory Care. Community Care informed petitioner’s daughter that it could not cover the companion care from November 16 to November 30 because it was not part of petitioner’s CBRF care plan, and thus did not fall within the continuity of care policy.
- Petitioner’s daughter filed this appeal to contest the denial of payment of the companion care during the period November 16 through November 29.
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. Adm in. 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.
Petitioner argues that she was promised that all care in place as of the date of enrollment would continue until the plan of care meeting. The MCO counters that the companion care was not part of the CBRF care plan, that it was arranged and paid by petitioner’s family, and thus was not part of the continuity of care agreement.
The FCP is governed primarily by the contract between the Department and the MCO. The standard contract is found on-line at dhs.wisconsin.gov/familycare/mcos/fc-fcp-2024-contract.pdf. I note that the 2024 contract is the same as the 2023 contract with regard to the following discussion.
Article V.D.1.a of the standard contract discusses continuity of care at page 66:
Immediate Service Authorization
Beginning on the date of enrollment, the MCO is responsible for providing the member with needed services in the benefit package. This includes responsibility to continue to provide services or supports the member is receiving at the time of enrollment if they are necessary to ensure health and safety and continuity of care until such time as the IDT staff has completed the initial assessment. Such services may have time limited authorizations until completion of the member’s full assessment and member-centered plan.
When Community Care staff assured that petitioner’s CBRF services would continue during the assessment period, they were thinking only about standard CBRF services. There clearly was a miscommunication as Community Care staff were unaware that the companion care was a service contracted by the family outside the CBRF’s regular care services. Furthermore, when the assessment was done on November 30, it was made clear that the companion care was not considered to be necessary to ensure petitioner’s health and safety; instead it was determined that Memory Care was the service that would meet petitioner’s needs.
I conclude that although petitioner’s daughter thought the continuity of care included the companion care, the MCO is not liable for covering it. The care was not part of petitioner’s CBRF services, and in the end it did not meet the standard of being necessary to ensure petitioner’s health, as it was not included in petitioner’s plan of care. The MCO should not be liable for a service that was not part of the CBRF’s regular care services under the continuity of care policy.
Conclusions of Law
The MCO correctly denied coverage of companion care during the period between enrollment and plan of care assessment because the care was not part of petitioner’s CBRF services but was contracted independently by petitioner’s family.
THEREFORE, it is
Ordered
That the petition for review is hereby dismissed.
[Request for a rehearing and appeal to court instructions omitted.]