STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

COMMUNITY PARTNERSHIPS INC., Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 162516, Hearing No. S0600013MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Medicaid (sometimes referred to as "Medical Assistance") is a federal program which provides financial assistance to participating states to help pay for medical care for needy persons. In Wisconsin, ultimate responsibility for administration of the Medicaid program rests with the Wisconsin Department of Health and Family Services (DHFS). Wisconsin DHFS passes through federal Medicaid funds to individual counties, which use the funds to purchase or provide care and which also provide eligibility determinations and case management services, all pursuant to agreements with the state.

One of the elements of the Wisconsin Medicaid program is a specialized managed care program called Children Come First (CCF), which serves residents of Dane County. The CCF program is intended to provide community-based services for children who have been diagnosed with mental illnesses or severe emotional disturbances. The entity which DHFS contracts with to operate the CCF program is Dane County, acting through its Department of Human Services (DCDHS). Thus, the obligation to see to it that the services required under the CCF program are provided, rests with Dane County.

Dane County in turn subcontracts with Community Partnerships Inc. ("CPI"), a private, non-profit entity, to oversee provision of all of the services which Dane County is obligated to provide pursuant to its agreement with DHFS. This case concerns the question of whether CPI is the employer of a number of individuals.

Wisconsin DHFS pays Dane County (using federally-provided Medicaid program funds) for part of the cost of the CCF program. It does this on a capitation (i.e., per-enrolled-recipient) basis. Dane County similarly pays CPI on a capitation basis. However, the capitation rate paid by Dane County is significantly higher than the rate the County is paid by the State; this represents a separate County contribution to the program. Thus, the CCF program is actually jointly funded by Wisconsin DHFS and Dane County.

The core element of the contract between Dane County and CPI is that, in exchange for payments to it by the County, CPI undertakes to "provide the medically necessary MA covered contract services required under...the State and County CCF contract". The services contemplated by that contract include medical services (assessments, medical trials, and psychiatric reviews and medical checks); mental health services (including therapy, crisis intervention and counseling, and various treatment, evaluation, support and planning services); family and extended family services (including respite services -- i.e., providing temporary caregivers to provide "respite" time off for responsible family members); placement services (involving placement of patients into various settings such as crisis homes/beds, foster care/group homes, and various other institutional settings); community supervision services; and case management and case aide services, supported environments, and transportation services.

CPI has a number of conceded employees, including case managers or coordinators and administrative staff. In addition, however, some of the services CPI is obliged to provide under its contract with DCDHS, are provided by a several dozen other individuals, who CPI pays for those services. This case concerns the status of these individuals and the nature of their relationship with CPI.

One group of these individuals, considered by CPI to be its "formal provider network", consists of "parent aide/mentors", "trainers", a psychiatric consultant (one individual, Dr. Randy Cullen), and a number of foster parents. A second group of individuals is simply referred to by CPI as its "informal provider network".

One distinction between the "formal providers" and the "informal providers" is that the "formal providers" may perform services for more than one child, while the "informal providers" provide various kinds of support services for one particular child or family, generally pursuant to a specific request or designation by that family. In addition, while individuals in the "formal provider network" provide their services pursuant to written contracts with CPI, the "informal providers" do not enter into any sort of express written agreement with CPI.

"Parent aides" work with parents in regard to a variety of everyday tasks that the parent might need some assistance with, such as setting structure for the home, setting up the reward and discipline programs for their child, and budgeting and managing financial situations. "Mentors" work with the young person themselves, with such things as job hunting, developing a social network, or simply engaging in recreational activities.

The types of services provided by "informal providers" is generally simple, non-professional personal support. Thus, they might help provide transportation to get a child to therapy appointments, or baby-sit a child in order to provide a "respite" to the family members who usually have to care for the child. On some occasions the "informal provider" was in fact the family member who routinely had responsibility to care for the child, and the payment to them would be such as to allow them to take time off from their regular employment to be able to stay home with and care for the child, or to pay for a babysitter for the child. In many cases, CPI had little direct knowledge of exactly what services these "informal providers" were providing or when they were doing so. It largely relies on information provided to it by the families of the children who report to it that these individuals were doing some service for them and should be given some payment for it. Documentation is not generally required. CPI paid some "informal providers" by the hour, and some by the day, and some in a "lump sum" payment.

Taking into account certain stipulations and concessions by the parties  (1),  the following describes the specific individuals whose status remains at issue, with the type of service they performed and the year(s) in which the department determined them to have performed services as employees. In a few case where there are discrepancies in the record as to the individual's service, this is noted:

 

Name

Description

Years

Amble, Patricia

Informal provider

2004

Bailey, Erin

Parent aide/Mentor

2004

Ballhorn, George (2)

Parent aide/Mentor

2004, 2005

Boone, Roy

Parent aide/Mentor

2004, 2005

Bultman, Valerie

Parent aide/Mentor

2004, 2005

Burkes, Charlotte

Trainer

2003

Cullen, Randy

Psych. Consultant

2003, 2004, 2005

Donahue, Arlyce

Parent aide/Mentor

2003

Dressler, Kris

Tutor

2003

Dyer, Michael

Foster parent

2003

Edgehill, Jennifer

Foster parent, Informal provider

2003

Haynes, Julian

Parent aide/Mentor

2004, 2005

Hooper, Eric

Parent aide/Mentor

2003, 2004

Hoskins, Angie

Informal provider

2003

Hubbard Moyer, Sharron

Parent aide/Mentor

2003, 2004, 2005

Hustad, Jean

Foster parent

2004

James, Denise

Informal provider

2003

Johnson, Robert

Parent aide/Mentor

2003

Johnson, Rosemarie

Informal provider

2004

Lathrop, Jenny (3)

Informal provider

2003

Malone, Ann

Parent aide/Mentor

2003, 2004, 2005

Mapp, Merritt

Parent aide/Mentor

2005

McGowan, Tyrone

Parent aide/Mentor

2004

Mendez, Marie

Informal provider

2004

Mensing, Andrew

Parent aide/Mentor

2004, 2005

Nealy, Ferry

Foster parent

2003

Nichols, Brian

Informal provider

2003

Pate, David

Trainer

2003

Patterson, Beatrice

Parent aide/Mentor

2003

Pendry, Jenny

Tutor

2003

Person, Emilie (4)

Informal provider

2003

Phillips, Wilma

Informal provider

2003

Philumalee, Jenifer

Informal provider

2004

Popp, Alyce

Foster parent

2003

Randle, John

Parent aide/Mentor

2004

Sanders, Dorothy

Foster parent

2003

Schuchart, Cheryl

Informal provider

2003

Shaver, Sarah

Trainer

2004

Springer, Christian

Informal provider

2004

Strickland, Irving

Foster parent

2003

Stromberg, Jason

Parent aide/Mentor

2004, 2005

Sutton, James

Parent aide/Mentor

2004, 2005

Thomas, Yvonne

Foster parent

2003

Thompson, Bryson

Parent aide/Mentor

2003

Turner, Mikquon

Parent aide/Mentor

2004

Vann, Michael

Trainer

2004

Weaver, Joni (5)

Parent aide/Mentor

2003, 2004

Weichman, Jina

Parent aide/Mentor

2003

White, Cora

Informal provider

2004

Winston, Jeramie (6)

Parent aide/Mentor

2003, 2004

Wood, Kristi

Parent aide/Mentor

2003, 2004

The issues for decision are whether these individuals performed services for CPI, if so then whether they performed services as "employees" or independent contractors, and whether CPI was their "employer" in any event.

In its brief, CPI argues first that the individuals at issue did not perform services "for" CPI within the meaning of Wis. Stat. § 108.02(12)(a). It then argues that under Wis. Stat. § 108.02(13)(k), it is not an "employer". Finally it argues that one of the individuals in question (Dr. Randy Cullen) was an independent contractor. Notably, CPI makes no argument that any of the other individuals at issue were independent contractors.

In its brief in response, the department argues that the individuals at issue were providing services "for" CPI within the meaning of § 108.02(12)(a). It contends that CPI's argument that it is a "fiscal agent" is "fallacious," but it does not grapple with, or in fact even mention, § 108.02(13)(k). Finally, the department argues that Cullen was not shown to have satisfied the statutory tests to be excepted from being considered an employee.

In its reply brief, CPI notes that the department did not address what CPI characterized as its "most salient point", that being that it was excepted from the definition of "employer." It argues that point in more detail, and it also revisits its argument that Cullen was an independent contractor. Again, though, it makes no argument that any of the other individuals at issue were shown not to be "employees". 
 

Are the individuals at issue providing services "for" CPI within the meaning of § 108.02(12)(a) ? --

CPI bound itself contractually with Dane County to provide the various social services to the Dane County clients that ended up being performed by the individuals at issue. The effect of that agreement was that CPI necessarily had to engage people to perform those services and pay them. Because CPI had taken on this contractual obligation to see to it that these services were performed, when the individuals at issue performed those services, they were conveying a benefit on CPI by meeting its contractual obligations.

While the individuals at issue were undeniably providing services "for" the individual clients and/or clients' family members who they were assisting, they were thus also providing services "for" CPI by discharging its obligation to see to it that the services were provided. The commission has previously noted that a caregiver may be considered to be providing services "for" a needy individual, and "for" the county which has an obligation to see that the needy individual is served, at the same time. County of Door (LIRC, March 28, 2007), citing Dane Co. v. LIRC and Welcome (Dane Co. Cir. Ct., No. 82CV4351, May 15, 1983).

For these reasons, the commission agrees with the department's argument that the individuals at issue provided services "for" CPI within the meaning of § 108.02(12)(a).  
 

Are the individuals at issue "employees" under § 108.02(12)(c) ? --

Given a determination that the individuals in question are providing services for pay "for" CPI within the meaning of § 108.02(12)(a), the presumption arises that they are its employees, and CPI bears the burden of proving that the relevant conditions are satisfied to establish that they are independent contractors.

Since it is undisputed that CPI is a non-profit organization, the relevant conditions which CPI would have to prove are those stated in § 108.02(12)(c), which effectively provides that an individual is not an "employee" if the putative employer for which they are performing services can establish:

1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his or her services both under his or her contract and in fact; and

2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.

In Keeler v. LIRC, 154 Wis. 2d 626, 631 (1990), the Court of Appeals identified five "interrelated factors" to be analyzed in deciding whether the "independently established" prong of this test is met: integration, advertising or holding out, entrepreneurial risk, economic independence, and proprietary interest. 154 Wis. 2d at 633-34.

With regard to Dr. Randy Cullen, the commission concludes that CPI failed to establish that he performed his services in an independently established trade, business or profession in which he was customarily engaged. His services were directly integrated with the activities of CPI. He did not engage in any significant "holding out" as an independent practicing psychiatrist. There was no evidence of a proprietary interest in a going business or practice. Although he performed similar services for other organizations in addition to CPI, in those other activities he was just as arguably performing as an employee. His other similar arrangements with other entities, were all essentially contracts for him to provide personal services, not freely transferable to others. He had no offices of his own, and did not maintain patient records on his own; he basically worked out of the facilities of the different organizations for which he provided services. Cullen had no significant entrepreneurial risk because he faced little or no real risk that the organizations he contracted with would fail to pay him. For these reasons, the commission concludes that Cullen provided his services to CPI as an employee.

With regard to the other individuals at issue, the commission would initially note that CPI arguably abandoned any contention that it had established the "freedom from direction and control / independently established" tests of § 108.02(12)(c) for anyone other than Cullen. CPI limited its arguments to the commission, making no claim that the other individuals at issue met the standards to be considered independent contractors. Thus, in its brief in chief, CPI raised only the three following specific contentions:

that the individuals in question were not providing services "for" CPI within the meaning of Wis. Stat § 108.02(12)(a);

that CPI was a "fiscal agent" and thus not an "employer" within the meaning of Wis. Stat. § 108.02(13)(k); and

that Dr. Randy Cullen was an independent contractor;

and it did not assert, much less argue, that any of the other individuals at issue were independent contractors. In its reply brief, CPI expressly acknowledged that it had advanced only those three specific arguments, and it again advanced no argument that the individuals other than Dr. Cullen were shown to have been providing services as independent contractors.

Apart from the fact that CPI does not argue that the individuals other than Dr. Cullen were shown to have been providing services as independent contractors, the commission concludes that the evidence in the record was insufficient to make that showing. The principal shortcoming in the record is the lack of evidence supporting a finding that any of the individuals at issue performed their services in an independently established trade, business of profession. CPI did not present any of the individuals as witnesses. While CPI presented some evidence as to each individual at issue in terms of what services they were involved in providing (see, Ex. 4), little or no competent and persuasive evidence was presented about the other activities of those individuals that would bear on the question of whether they were engaged in an "independently established" business. Thus, there was little if any evidence as to whether these individuals advertised or held themselves out as operating independent businesses, whether they performed any similar services in any other circumstances, and whether they had anything that could be considered a proprietary interest.

Wis. Stat. § 108.02(12)(a) creates a presumption that an individual who provides services for pay is an employee, and it requires the entity for who they provide those services to bear the burden of proving that they are not employees. Quality Communications Specialists, Inc. (LIRC July 30, 2001). Where, as here, the evidence is simply inadequate to establish that the relevant indicia of independent contractor status are present, the consequence is that the individuals must be considered employees.
 

Is CPI a "fiscal agent", and thus not an "employer", under § 108.02(13)(k)? --

As noted above, CPI argues alternatively that it is not the "employer" of the individuals in question by virtue of § 108.02(13)(k), which deals with "fiscal agents." This is a separate question from how or whether § 108.02(12) applies to the individuals at issue. If § 108.02(13)(k) applies, such that CPI is by definition not an "employer" of those individuals, then it can not have any liability for UI contributions on the amounts paid them, whether they are "employees" or not.

Wis. Stat. § 108.02(13)(k) provides:

(k) "Employer" does not include a county department aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27(5)(i) or 47.035 as to any individual performing services for a person receiving long-term support services under s. 46.27(5)(b), 46.275, 46.277, 46.278, 46.2785, 46.286, 46.495, 51.42, or 51.437 or personal assistance services under s. 47.02(6)(c).

An important first step in interpreting and applying this provision, is recognizing that it mentions three distinct kinds of entities or individuals:

(1) a county department aging unit or private agency that serves as (or contracts with a fiscal intermediary to serve as) a fiscal agent under s. 46.27(5)(i) or 47.035;

(2) an individual performing services for another person; and

(3) a person receiving those services.

What this provision says is that the term "employer" does not include a county department or private agency of the kind described, "as to" an individual performing services of the type referred to in the provision. Thus its effect is that while the county department or private agency may well be an "employer" of other individuals, it will not be considered the "employer" of any particular individual performing services as referred to in the provision (i.e., services for a person receiving the described long-term support services).

With that in mind, the commission turns first to the question of whether CPI is

a county department aging unit, or, under s. 46.2785, a private agency that serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27(5)(i) or 47.035

within the meaning of § 108.02(13)(k).

CPI is clearly neither a county department aging unit, nor any other subdivision of a county; it is undisputed that it is a private agency. The question then becomes, whether it is a "private agency" of the kind contemplated by 108.02(13)(k). That statute attaches the reference "under 46.2785" to its mention of private agencies. This indicates that for 108.02(13)(k) to apply to a private agency, it must be a private agency "under 46.2785". It is not clear whether CPI would be considered a private agency of the kind referred to in that section. (7)

Assuming for purposes of discussion that CPI is a private agency of the type referred to in § 46.2785, and thus potentially of the type referred to in § 108.02(13)(k), the next question is whether it meets the requirement of that section that it is a private agency "that serves as a fiscal agent". It is in considering this question, that it becomes clear that CPI's argument cannot be accepted.

In its argument, CPI has used the term "fiscal agent" freely to describe itself, without identifying any source for whatever meaning it assumes the term to have. However, the term "fiscal agent" is not an empty vessel into which a party can pour any meaning they choose. This is because 108.02(13)(k) specifically provides that the question is whether an entity "serves as a fiscal agent or contracts with a fiscal intermediary to serve as a fiscal agent under s. 46.27(5)(i) or 47.035." The only reasonable interpretation of 108.02(13)(k) is that the term "fiscal agent" as used there is limited to the meaning that term has in 46.27(5)(i) and 47.035. (8) Thus, to decide if CPI is a "fiscal agent" within the meaning of § 108.02(13)(k) it is necessary to consider the specific language of those two statutory sections.

Section 46.27(5)(i) provides:

46.27 Long-term support community options program.
...
(5) County department or aging unit duties. The county department or aging unit selected to administer the program shall:

. . . (i) In the instances in which an individual who is provided long-term community support services under par. (b) for which the individual receives direct funding, serve directly as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for that individual for the purposes of performing the responsibilities and protecting the interests of the individual under the unemployment insurance law. The county department or aging unit may elect to act as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for an individual who is provided long-term support services under s. 46.275, 46.277, 46.278, 46.2785, 46.495, 51.42, or 51.437. The fiscal agent under this paragraph is responsible for remitting any federal unemployment compensation taxes or state unemployment insurance contributions owed by the individual, including any interest and penalties which are owed by the individual; for serving as the representative of the individual in any investigation, meeting, hearing or appeal involving ch. 108 or the federal unemployment tax act (26 USC 3301 to 3311) in which the individual is a party; and for receiving, reviewing, completing and returning all forms, reports and other documents required under ch. 108 or the federal unemployment tax act on behalf of the individual. An individual may make an informed, knowing and voluntary election to waive the right to a fiscal agent. The waiver may be as to all or any portion of the fiscal agent's responsibilities. The waiver may be rescinded in whole or in part at any time.

(emphasis added). Section 47.035 provides:

47.035 Fiscal agents for persons with disabilities. (1) Except as authorized in sub. (2) if an individual receives direct funding for personal assistance services that are provided to the individual under s. 47.02 (6) (c), and the services are provided through a county department of human services or social services or an aging unit, the county department or aging unit through which the services are provided shall serve directly as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for that individual for the purposes of performing the responsibilities and protecting the interests of the individual under the unemployment insurance law. The fiscal agent under this subsection is responsible for remitting any federal unemployment compensation taxes or state unemployment insurance contributions owed by the individual, including any interest and penalties which are owed by the individual; for serving as the representative of the individual in any investigation, meeting, hearing or appeal involving ch. 108 or the federal unemployment tax act (26 USC 3301 to 3311) in which the individual is a party; and for receiving, reviewing, completing and returning all forms, reports and other documents required under ch. 108 or the federal unemployment tax act on behalf of the individual.

(2) An individual may make an informed, knowing and voluntary election to waive the right to a fiscal agent under sub. (1). The waiver may be as to all or any portion of the fiscal agent's responsibilities. The waiver may be rescinded in whole or in part at any time.

(emphasis added). In both cases, it is clear as indicated by the emphasized language that a fiscal agent is a fiscal agent "for" an individual who is receiving services. This is clear from the phrase "fiscal agent for that individual" which is used in both statutes. In both cases, the obvious referent for "that individual" is the individual just described in the provision who is receiving care services.

CPI has argued variously that it is a fiscal agent "for" a Medical Assistance program (Ex. 1, p. 4; CPI's Brief, p. 1, T. 14), or a fiscal agent "to" the individuals performing the services, (CPI's Brief, p. 9, CPI's Reply Brief, p. 2). This reflects a fundamental misunderstanding of what a "fiscal agent" is under § § 46.27(5)(i) or 47.035. An entity is not and cannot be a fiscal agent "for", or "to", a county, or a program, or a person providing services in connection with a program. A fiscal agent is a fiscal agent for a disabled person who is receiving care services.

What is more, the "fiscal agency" which § § 46.27(5)(i) and 47.035 is concerned with relates solely to situations in which the disabled person receiving the care services is receiving "direct funding" which they are then spending directly to purchase care services for themselves. In such situations, the disabled individual would generally be considered the "employer" of the person who they are paying to provide them services. That is precisely the reason that the "fiscal agent" provisions were created. In the absence of such provisions, the disabled individual (or their legal guardian), would bear the burden of having to handle all of the normal responsibilities of a UI-covered employer, including filing required reports and remitting required contributions on the "payroll" paid to the caregiver, and dealing with investigations and hearings on appeals. What § § 46.27(5)(i) and 47.035 allow is for a social service agency to take over that administrative role, which disabled individuals (and their guardians and or family members) are ill-equipped to handle. What § 108.02(13)(k) in turns allows is for this to happen without the social service agency thereby being considered to be the actual "employer".

The reason for that, has primarily to do with tax rates. The disabled individual remains the employer of the individual(s) providing them care. Although the social service agency which is a "fiscal agent" for that disabled individual handles all of the administrative responsibilities relating to UI for the person providing services to that disabled individual, the UI tax rate as to that person is not the rate that applies to the social service agency payroll; it is a rate determined based on the payroll (and experience) of the disabled individual.

When it is properly understood in this way, it becomes clear that the "fiscal agent" provision, § 108.02(13)(k), is simply not applicable here. None of the children who are being provided the care services involved in this case are recipients of "direct funding" who are paying directly for the care services being provided by the individuals at issue here, such that they would be considered the "employer" of those caregivers; none of those caregiver individuals whose status is at issue here would be considered employees of the children they were providing services for. Thus, there is no conceivable basis for arguing that CPI was or could have been acting as a "fiscal agent" for those children to take over and relieve them of the administrative responsibilities that came with being "employers" for UI purposes. 
 

Conclusion -- CPI took on an obligation to see to it that certain care services were provided to a population of children with needs for those services. In order to meet that obligation, it pays a number of individuals for services they provide for those children. Those individuals are thus performing services for pay for CPI, within the meaning of § 108.02(12)(a), and are thus presumptively its employees. CPI did not present sufficient evidence to carry its burden of establishing that the individuals performed their services as independent contractors under the applicable tests in § 108.02(12)(c). Finally, the "fiscal agent" exception in § 108.02(13)(k) has no applicability here because CPI was not acting as "fiscal agent" for the children receiving the services within the meaning of Wis. Stat. § § 46.27(5)(i) or § 47.035. Thus, the outcome arrived at by the ALJ must be affirmed.

For all of the foregoing reasons, the commission therefore finds that, except as to Natalie Hoeg, Kelly Kuenzie and Brian Lazoric, and with the further exception that Jenny Lathrop and Virginia Lathrop are one and the same person, the individuals identified in the audit report which was the basis for the initial determination were "employees", within the meaning of Wis. Stat. § 108.02(12), of Community Partnerships, Inc., and that Community Partnerships, Inc. was the "employer", within the meaning of Wis. Stat. § 108.02(13), of those individuals.

DECISION

The Findings of Fact and Conclusions of Law of the administrative law judge are modified to conform with the foregoing and, as modified, the decision of the administrative law judge is affirmed. Accordingly, the department's initial determination is amended as to the amount of taxable payroll and, as amended, is affirmed and remanded for recomputation of the amount of taxable wages in accordance with this decision.

Dated and mailed February 22, 2008
communp . srr : 110 : EE 413  ER 460

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc:
Attorney Carol Grob
Attorney Peter W. Zeeh



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Footnotes:

(1)( Back ) CPI expressly withdrew its appeal with respect to three individuals, Laura McNeil, Amy Teusch, and Thomas Wright (T. 7-8), thus effectively conceding them to be employees. In addition, the Department expressly conceded that Natalie Hoeg, Kelly Kuenzie and Brian Lazoric, were not employees (T. 54, 108); their names are for that reason omitted here.

(2)( Back ) The audit determined that Ballhorn performed services in the 4th quarter of 2004 for which he was paid $176, and that he performed services in the 1st quarter of 2005 for which he was paid $112. CPI's letter of February 10, 2006 (Ex. 1) listed Ballhorn as having performed services only in 2005. However, the listing document offered by CPI (Ex. 4) only reflected the work Ballhorn performed in 2004 for which he was paid $176. There was no testimony about him at hearing. The ATD only reflects Ballhorn as having worked in 2005. The commission credits the audit document and finds that he provided services in 2004 as well.

(3)( Back ) The audit listed both a Jenny Lathrop and Virginia Lathrop, each shown as having performed services for pay (for $675 and $1,500, respectively) in the 3rd quarter of 2003. It is not disputed that these two are in fact one and the same person.

(4)( Back ) The audit showed an individual named Emilie Person who was found to have performed services in 2003 for which she received $875. This person and the payment to her is not reflected in CPI's letter of February 10, 2006 (Ex. 1), but is reflected in the listing document offered by CPI at the hearing (Ex. 4). CPI's witness acknowledged her at hearing (T. 46).

(5)( Back ) The audit determined that Weaver performed services in the 3rd and 4th quarters of 2003 for which she was paid $3,504, and that she performed services in the 1st and 2nd quarters of 2004 for which she was paid $6,013. In the listing document offered by CPI at the hearing (Ex. 4), only the service and payment in 2003 is referred to. However, CPI's letter of February 10, 2006 (Ex. 1) had indicated that Weaver performed services in 2004 as well. There was no testimony about her at hearing. The commission credits the audit document and finds that she provided services in 2004 as well.

(6)( Back ) The audit determined that Winston performed services in the 2nd through 4th quarters of 2003 for which he was paid $5,240, and that he performed services in the 1st and 2nd quarters of 2004 for which he was paid $4,055. In the listing document offered by CPI at the hearing (Ex. 4), only the service and payment in 2004 is referred to. However, CPI's letter of February 10, 2006 (Ex. 1) had indicated that Weaver performed services in 2003 as well.

(7)( Back ) Wis. Stat. 46.2785 provides in relevant part as follows:

46.2785 Community Opportunities and Recovery Program. (1) Definitions. In this section:
...

(c) "Waiver program" means the Community Opportunities and Recovery Program for which a waiver has been requested under sub. (2) and granted under 42 USC 1396n (c).

(2) Waiver request. The department may request a waiver from the secretary of the U.S. department of health and human services, under 42 USC 1396n (c), authorizing the department to serve in their communities medical assistance recipients who meet eligibility requirements specified in sub. (4) by providing them home or community-based services as part of the Medical Assistance program. If the department requests the waiver, it shall include all the assurances required under 42 USC 1396n (c) (2) in the request. If the department receives the waiver, it may request an extension of the waiver under 42 USC 1396n (c).

(3) Contract for administration. If doing so is consistent with the waiver received by the department as specified in sub. (2), the department may contract with a county or a private agency to administer the waiver program. A private agency with which the department contracts shall have the powers and duties of a county under this section.
...

(5) Funding.

(a) Medical assistance reimbursement for services a county or private agency contracts for or provides under the waiver program shall be made from the appropriation accounts under s. 20.435 (4) (b) and (o).

(b) The department may, from the appropriation account under s. 20.435 (4) (o), reimburse a county for providing, or contracting to provide, services that cost more than the average annual per person rate established by the department, but less than the average amount approved by the federal government for the waiver program.

The "waiver program" referred to in 46.2785 has to do with the federal Medicaid program. A state Medicaid plan may cover services provided in institutional settings (such as nursing homes), but in addition, under 42 USC 1396n(c), the secretary of the U.S. Department of Health and Human Services may issue a "waiver" which allows a state to provide "home and community-based services" -- including homemaker and home health aide services, personal care services, and/or habilitation services -- to eligible individuals outside of an institutional setting. A waiver under this section avoids unnecessary institutionalization and also helps to contain state and federal costs.

As noted above, 108.02(13)(k) uses the phrase, "under s. 46.2785, a private agency". 46.2785(3) appears to have to do only with private agencies (or counties) which contract directly with Wisconsin DHFS. However, 46.2785(5) does seem to contemplate that a county which has contracted with Wisconsin DHFS may itself turn around and (sub-)contract the provision of services to a private agency. It could be argued from this that CPI is "under s. 46.2785, a private agency" within the meaning of 108.02(13)(k).

(8)( Back ) See, County of Door (LIRC, March 28, 2007), [because (13)(k)] is limited to entities serving as a fiscal agent "under s. 46.27(5)(i) or 47.035", those statutory references establish the scope of the provision].

 


uploaded 2008/02/26