Chapter 46

46.286 46.286 Family care benefit.

46.286(1) (1) Eligibility. A person is eligible for, but not necessarily entitled to, the family care benefit if the person is at least 18 years of age; has a physical disability, as defined in s. 15.197 (4) (a) 2., or a developmental disability, as defined in s. 51.01 (5) (a), or is a frail elder; and meets all of the following criteria:

46.286(1)(a) (a) Functional eligibility. A person is functionally eligible if the person’s level of care need, as determined by the department or its designee, is either of the following:

46.286(1)(a)1m. 1m. The nursing home level, if the person has a long-term or irreversible condition, expected to last at least 90 days or result in death within one year of the date of application, and requires ongoing care, assistance or supervision.

46.286(1)(a)2m. 2m. The non-nursing home level, if the person has a condition that is expected to last at least 90 days or result in death within 12 months after the date of application, and is at risk of losing his or her independence or functional capacity unless he or she receives assistance from others.

46.286(1)(b) (b) Financial eligibility.

46.286(1)(b)1c. 1c. In this paragraph, “medical assistance” does not include coverage of the benefits under s. 49.471 (11).

46.286(1)(b)2m. 2m. A person is financially eligible if any of the following apply:

46.286(1)(b)2m.a. a. The person is eligible under ch. 49 for medical assistance and, unless he or she is exempt from acceptance under rules promulgated by the department, accepts medical assistance.

46.286(1)(b)2m.b. b. The person was receiving the family care benefit on October 27, 2007, the person would qualify for medical assistance except for financial or disability criteria, and the projected cost of the person’s care plan, as calculated by the department or its designee, exceeds the person’s gross monthly income, plus one-twelfth of his or her countable assets, less deductions and allowances permitted by rule by the department.

46.286(2) (2) Cost sharing.

46.286(2)(a) (a) A person who is determined to be financially eligible under sub. (1) (b) shall contribute to the cost of his or her care an amount that is calculated by the department or its designee after subtracting from the person’s gross income, plus one-twelfth of countable assets, the deductions and allowances permitted by the department by rule.

46.286(2)(b) (b) Funds received under par. (a) shall be used by a care management organization to pay for services under the family care benefit.

46.286(2)(c) (c) A person who is required to contribute to the cost of his or her care but who fails to make the required contributions is ineligible for the family care benefit unless he or she is exempt from the requirement under rules promulgated by the department.

46.286(3) (3) Entitlement.

46.286(3)(a) (a) Subject to par. (c), a person is entitled to and may receive the family care benefit through enrollment in a care management organization if all of the following apply:

46.286(3)(a)1m. 1m. The person is at least 18 years of age.

46.286(3)(a)2m. 2m. The person has a physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or is a frail elder.

46.286(3)(a)3m. 3m. The person is functionally eligible under sub. (1) (a).

46.286(3)(a)4m. 4m. The person is financially eligible under sub. (1) (b) 2m. a., and fulfills any applicable cost-sharing requirements.

46.286(3)(b) (b) An entitled individual who is enrolled in a care management organization may not be involuntarily disenrolled except as follows:

46.286(3)(b)1. 1. For cause, subject to the requirements of s. 46.284 (4) (a).

46.286(3)(b)2. 2. If the contract between the care management organization and the department is canceled or not renewed. If this circumstance occurs, the department shall assure that enrollees continue to receive needed services through another care management organization or through the medical assistance fee-for-service system or any of the following programs:

46.286(3)(b)2.b. b. Home and community-based waiver programs under 42 USC 1396n (c), including a community integration program under s. 46.275, 46.277, or 46.278 and the Community Opportunities and Recovery Program under s. 46.2785.

46.286(3)(b)2.c. c. The Alzheimer’s family caregiver support program under s. 46.87.

46.286(3)(b)2.d. d. Community aids under s. 46.40, if documented by the county under a method prescribed by the department.

46.286(3)(b)2.e. e. County funding, if documented by the county under a method prescribed by the department.

46.286(3)(b)3. 3. The department or its designee determines that the person no longer meets eligibility criteria under sub. (1).

46.286(3)(c) (c) Within each county and for each client group, par. (a) shall first apply on the effective date of a contract under which a care management organization accepts a per person per month payment to provide services under the family care benefit to eligible persons in that client group in the county. Within 36 months after this date, the department shall assure that sufficient capacity exists within one or more care management organizations to provide the family care benefit to all entitled persons in that client group in the county.

46.286(3m) (3m) Information about enrollees. The department shall obtain and share information about family care enrollees as provided in s. 49.475.

46.286(4) (4) Divestment; rules. The department shall promulgate rules relating to prohibitions on divestment of assets of persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.453.

46.286(5) (5) Treatment of trust amounts; rules. The department shall promulgate rules relating to treatment of trust amounts of persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.454.

46.286(6) (6) Protection of income and resources of couple for maintenance of community spouse; rules. The department shall promulgate rules relating to protection of income and resources of couples for the maintenance of the spouse in the community with regard to persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.455.

46.286(7) (7) Recovery of family care benefit payments. The department shall apply to the recovery from persons who receive the family care benefit, including by liens and affidavits and from estates, of correctly paid family care benefits, the applicable provisions under ss. 49.496 and 49.849.

46.286 History History: 1999 a. 9, 185; 2001 a. 16, 109; 2003 a. 33; 2005 a. 25, 264, 388; 2007 a. 20; 2009 a. 28; 2013 a. 20, 92; 2019 a. 9.

46.286 Cross-reference Cross-reference: See also ch. DHS 10, Wis. adm. code.

46.287 46.287 Hearings.

46.287(1) (1) Definition. In this section, “client” means a person applying for eligibility for the family care benefit, an eligible person or an enrollee.

46.287(2) (2) Hearing.

46.287(2)(a) (a)

46.287(2)(a)1. 1. Except as provided in subd. 2., a client may contest any of the following applicable matters by filing, within 45 days of the failure of a resource center or county to act on the contested matter within the time frames specified by rule by the department or within 45 days after receipt of notice of a decision in a contested matter, a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1):

46.287(2)(a)1.a. a. Denial of eligibility under s. 46.286 (1).

46.287(2)(a)1.b. b. Determination of cost sharing under s. 46.286 (2).

46.287(2)(a)1.c. c. Denial of entitlement under s. 46.286 (3).

46.287(2)(a)1.g. g. Termination of the family care benefit.

46.287(2)(a)1.h. h. Imposition of ineligibility for the family care benefit under s. 46.286 (4).

46.287(2)(a)1.i. i. Denial of eligibility or reduction of the amounts of the family care benefit under s. 46.286 (5).

46.287(2)(a)1.j. j. Determinations similar to those specified under s. 49.455 (8) (a), made under s. 46.286 (6).

46.287(2)(a)1.k. k. Recovery of family care benefit payments.

46.287(2)(a)1m. 1m. Except as provided in subd. 2., a client may contest any of the following adverse benefit determinations by filing, within 90 days of the failure of a care management organization to act on a contested adverse benefit determination within the time frames specified by rule by the department or within 90 days after receipt of notice of a decision upholding the adverse benefit determination, a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1):

46.287(2)(a)1m.a. a. Denial of functional eligibility under s. 46.286 (1) as a result of the care management organization’s administration of the long-term care functional screen, including a change from a nursing home level of care to a non-nursing home level of care.

46.287(2)(a)1m.b. b. Failure to provide timely services and support items that are included in the plan of care.

46.287(2)(a)1m.c. c. Denial or limited authorization of a requested service, including determinations based on type or level of service, requirements or medical necessity, appropriateness, setting, or effectiveness of a covered benefit.

46.287(2)(a)1m.d. d. Reduction, suspension, or termination of a previously authorized service, unless the service was only authorized for a limited amount or duration and that amount or duration has been completed.

46.287(2)(a)1m.e. e. Denial, in whole or in part, of payment for a service.

46.287(2)(a)1m.f. f. The failure of a care management organization to act within the time frames provided in 42 CFR 438.408 (b) (1) and (2) regarding the standard resolution of grievances and appeals.

46.287(2)(a)1m.g. g. Denial of an enrollee’s request to dispute financial liability, including copayments, premiums, deductibles, coinsurance, other cost sharing, and other member financial liabilities.

46.287(2)(a)1m.h. h. Denial of an enrollee, who is a resident of a rural area with only one care management organization, to obtain services outside the care management organization’s network of contracted providers.

46.287(2)(a)1m.i. i. Development of a plan of care that is unacceptable to the enrollee because the plan of care requires the enrollee to live in a place that is unacceptable to the enrollee; the plan of care does not provide sufficient care, treatment, or support to meet the enrollee’s needs and support the enrollee’s identified outcomes; or the plan of care requires the enrollee to accept care, treatment, or support that is unnecessarily restrictive or unwanted by the enrollee.

46.287(2)(a)1m.j. j. Involuntary disenrollment from the care management organization.

46.287(2)(a)2. 2. An applicant for or recipient of medical assistance is not entitled to a hearing concerning the identical dispute or matter under both this section and 42 CFR 431.200 to 431.246.

46.287(2)(b) (b) An enrollee may contest a decision, omission or action of a care management organization other than those specified in par. (a) 1m. by filing a grievance with the care management organization. If the grievance is not resolved to the satisfaction of the enrollee, he or she may request that the department review the decision of the care management organization.

46.287(2)(c) (c) Information regarding the availability of advocacy services and notice of adverse actions taken and appeal rights shall be provided to a client by the resource center or care management organization in a form and manner that is prescribed by the department by rule.

46.287 History History: 1999 a. 9; 2003 a. 33; 2013 a. 20; 2019 a. 9.

46.288 46.288 Rule-making. The department shall promulgate as rules all of the following:

46.288(1) (1) Standards for performance by resource centers and for certification of care management organizations, including requirements for maintaining quality assurance and quality improvement.

46.288(2) (2) Criteria and procedures for determining functional eligibility under s. 46.286 (1) (a), financial eligibility under s. 46.286 (1) (b), and cost sharing under s. 46.286 (2) (a).

46.288(3) (3) Procedures and standards for procedures for s. 46.287 (2), including time frames for action by a resource center or a care management organization on a contested matter.

46.288 History History: 1999 a. 9; 2007 a. 20; 2009 a. 28; 2019 a. 9.

46.2895 46.2895 Long-term care district.

46.2895(1) (1) Creation.

46.2895(1)(a) (a) A county, a tribe or band, or any combination of counties or tribes or bands, may create a special purpose district that is termed a “long-term care district”, that is a local unit of government, that is separate and distinct from, and independent of, the state and the county or tribe or band that created it, and that has the powers and duties specified in this section, if each county or tribe or band that participates in creating the district does all of the following:

46.2895(1)(a)1. 1. Adopts an enabling resolution that does all of the following:

46.2895(1)(a)1.a. a. Declares the need for establishing the long-term care district.

46.2895(1)(a)1.b. b. Specifies the long-term care district’s primary purpose, which shall be to operate, under contract with the department, a resource center under s. 46.283, a care management organization under s. 46.284, or a program described under s. 46.2805 (1) (a) or (b).

46.2895(1)(a)1.c. c. Specifies the number of individuals who shall be appointed as members of the long-term care district board, the length of their terms, and, if the long-term care district is created by more than one county or tribe or band, how many members shall be appointed by each county or tribe or band.

46.2895(1)(a)2. 2. Files copies of the enabling resolution with the secretary of administration, the secretary of health services and the secretary of revenue.

46.2895(1)(c) (c) A long-term care district may not operate a care management organization under s. 46.284 or a program described under s. 46.2805 (1) (a) or (b) if the district operates a resource center under s. 46.283.

46.2895(1)(d) (d) A county or tribe or band may create more than one long-term care district.

46.2895(1)(e) (e) A long-term care district may change its primary purpose specified under par. (a) 1. b. if all the counties or tribes or bands that created the district and that have not withdrawn or been removed from the district under sub. (14), adopt a resolution approving the change in primary purpose and if the change in purpose does not violate par. (c) or any provision of a contract between the department and the district.

46.2895(2) (2) Jurisdiction.

46.2895(2)(a) (a) Except as provided in par. (b) or (c), a long-term care district’s jurisdiction is the geographical area of the county or counties that created the long-term care district and the geographic area of the reservation of, or lands held in trust for, any tribe or band that created the long-term care district.

46.2895(2)(b) (b) A long-term care district may apply to the department for a contract to operate a care management organization under s. 46.284 in an area outside the geographic boundary of the county or counties that created the long-term care district.

46.2895(2)(c) (c) If the department awards a contract to a long-term care district to operate a care management organization outside the geographic area of the counties that created the long-term care district, any county that is newly served by the care management organization and is outside the geographic area of the counties that created the long-term care district may join the existing long-term care district at the discretion of the long-term care district’s board, provided the newly served county adopts a resolution that authorizes the county to join the long-term care district. A county served by a care management organization operated by a long-term care district to which the county does not belong shall cooperate with and may not impede the operation of the care management organization.

46.2895(3) (3) Long-term care district board.

46.2895(3)(a) (a) The county board of supervisors of a county or, in a county with a county administrator or county executive, the county administrator or county executive shall appoint the long-term care district board members whom the county is allotted, by resolutions adopted under sub. (1) (a) 1. c., to appoint.

46.2895(3)(b) (b)

46.2895(3)(b)1. 1. At least one-fourth of the members of a long-term care district board shall be representative of the client group or groups whom it is the long-term care district’s primary purpose to serve or those clients’ family members, guardians, or other advocates.

46.2895(3)(b)3. 3. Membership of a long-term care district board shall reflect the ethnic and economic diversity in the jurisdiction of the long-term care district.