Advertisement
The state Department of Health and Family Services, now known as the Department of Health Services, should have spelled out the policy in an administrative rule — opening the standards up to public input — rather than simply adopt it, the 4th District Court of Appeals ruled.
“This is an entirely new eligibility condition established by DHFS,” the court said.
Mitchell Hagopian is an attorney for Disability Rights Wisconsin, an advocacy group for the disabled that brought the appeal on behalf of a disqualified participant. He said he didn’t know how many people may have been declared ineligible under the new guidelines, but the appeals court ruling could allow them to reapply.
“For them it will make a big difference,” Hagopian said.
DHS spokesman Stephanie Marquis said the agency wants to make sure people get long-term care benefits they need. Agency attorneys will evaluate their options, but putting the criteria in rule form wasn’t one of them.
“The Department never intended the guidance ... to be an Administrative Rule,” Marquis said in an e-mailed statement.
The case revolves around a Medicaid program that sets up in-home nurses to help the elderly and disabled stay at home rather than move into a nursing home or hospital. More than 27,000 people participated in the program in 2006, according to a DHFS report.
The agency set up a policy to help county screeners determine the eligibility of applicants whose conditions fluctuate, telling them to judge the applicants by their needs on their worst day.
DHFS changed the policy in 2005. The agency told screeners then to base eligibility thresholds on whether a person needs help at least a third of the time.
In other words, one bad day would have been enough to qualify an individual for the program under the old policy. Under the new one, it took at least 10 bad days a month.
Marquis said the policy was meant to ensure people with persistent long-term care needs were considered for benefits quickly.
The new policy left Beloit resident Susan Cholvin disqualified in 2006. She challenged the finding, but both an administrative law judge and a Rock County circuit judge upheld ending her benefits.
She appealed, arguing the policy should have been written as a rule because it has the force of law on a class of person. DHFS countered the policy was merely a guideline, wasn’t absolute and was informational in nature.
The 4th District Court of Appeals concluded nothing suggests the policy is advisory. The policy leaves screeners no discretion on when to apply the one-third standard, the court said.
The policy goes beyond information to interpreting state law and creating a new standard, the court added.
