Chapter DHS 105

DHS 105.16(4) (4) Occupational therapists. Occupational therapists may be employed by the home health agency or by an agency under contract to the home health agency, or may be independent providers under contract to the home health agency.

DHS 105.16(5) (5) Speech and language pathologists. Speech and language pathologists may be employed by the home health agency or by an agency under contract to the home health agency, or may be independent providers under contract to the home health agency.

DHS 105.16(6) (6) Respiratory care services.

DHS 105.16(6)(a) (a) A certified home health agency may be certified to provide respiratory care services under s. DHS 107.113 if registered nurses, licensed practical nurses and respiratory therapists employed by or under contract to the agency provide these services and:

DHS 105.16(6)(a)1. 1. Are credentialed by the national board on respiratory care; or

DHS 105.16(6)(a)2. 2. Know how to perform services under s. DHS 107.113 (1) and have the skills necessary to perform those services. Skills required to perform services listed in s. DHS 107.113 (1) (e) to (f) are required on a case-by-case basis, as appropriate. In no case may a person provide respiratory care before that person has demonstrated competence in all areas under s. DHS 107.113 (1) (a) to (d).

DHS 105.16(6)(b) (b) A registered nurse who fulfills the requirements of this subsection shall coordinate the recipient’s care.

DHS 105.16(6)(c) (c) The department shall review an agency’s continued compliance with this subsection.

DHS 105.16(7) (7) Private duty nursing. A home health agency may provide private duty nursing services under s. DHS 107.12 performed by a registered nurse or licensed practical nurse.

DHS 105.16(8) (8) Cost reports. The department may, when necessary, require home health agencies to report information which is supplementary to information required on medicare cost reports.

DHS 105.16(9) (9) Department review.

DHS 105.16(9)(a) (a) Record review. The department may periodically review the records described in this section and s. DHS 106.02 (9), subject only to restrictions of law. All records shall be made immediately available upon the request of an authorized department representative.

DHS 105.16(9)(b) (b) In-home visits. As part of the review under par. (a), the department may contact recipients who have received or are receiving MA services from a home health care provider. The provider shall provide any identifying information requested by the department. The department may select the recipients for visits and may visit a recipient with the approval of the recipient or recipient’s guardian. The recipient to be visited has the opportunity to have any person present whom he or she chooses, during the visit by personnel of the department or other governmental investigating agency.

DHS 105.16(9)(c) (c) Investigation of complaints. The department may investigate any complaint received by it concerning the provision of MA services by a home health care provider. Following the investigation, the department may issue a preliminary final report to the home health care provider in question, except when doing so would jeopardize any other investigation by the department or other state or federal agency.

DHS 105.16(10) (10) Requirements for providing private duty nursing or respiratory care services. For certified agencies providing private duty nursing or respiratory care services or both under this section, the following requirements apply:

DHS 105.16(10)(a) (a) Duties of the nurse.

DHS 105.16(10)(a)1. 1. The following nursing services may be performed only by a registered nurse:

DHS 105.16(10)(a)1.a. a. Making the initial evaluation visit;

DHS 105.16(10)(a)1.b. b. Initiating the physician’s plan of care and necessary revisions;

DHS 105.16(10)(a)1.c. c. Providing those services that require care of a registered nurse as defined in ch. N 6;

DHS 105.16(10)(a)1.d. d. Initiating appropriate preventive and rehabilitative procedures;

DHS 105.16(10)(a)1.e. e. Accepting only those delegated medical acts which the RN is competent to perform based on his or her nursing education, training or experience; and

DHS 105.16(10)(a)1.f. f. Regularly reevaluating the patient’s needs.

DHS 105.16(10)(a)2. 2. Nursing services not requiring a registered nurse may be provided by a licensed practical nurse under the supervision of a registered nurse. Licensed practical nurse duties include:

DHS 105.16(10)(a)2.a. a. Performing nursing care delegated by an RN under s. N 6.03;

DHS 105.16(10)(a)2.b. b. Assisting the patient in learning appropriate self-care techniques; and

DHS 105.16(10)(a)2.c. c. Meeting the nursing needs of the recipient according to the written plan of care.

DHS 105.16(10)(a)3. 3. Both RNs and LPNs shall:

DHS 105.16(10)(a)3.a. a. Arrange for or provide health care counseling within the scope of nursing practice to the recipient and recipient’s family in meeting needs related to the recipient’s condition;

DHS 105.16(10)(a)3.b. b. Provide coordination of care for the recipient;

DHS 105.16(10)(a)3.c. c. Accept only those delegated medical acts for which there are written or verbal orders and for which the nurse has appropriate training or experience;

DHS 105.16(10)(a)3.d. d. Prepare written clinical notes that document the care provided within 24 hours of providing service and incorporate them into the recipient’s clinical record within 7 days; and

DHS 105.16(10)(a)3.e. e. Promptly inform the physician and other personnel participating in the patient’s care of changes in the patient’s condition and needs.

DHS 105.16(10)(b) (b) Patient rights. A nurse shall provide a written statement of the rights of the recipient for whom services are provided to the recipient or guardian or any interested party prior to the provision of services. The recipient or guardian shall acknowledge receipt of the statement in writing. The nurse shall promote and protect the exercise of these rights and keep written documentation of compliance with this subsection. Each recipient receiving care shall have the following rights:

DHS 105.16(10)(b)1. 1. To be fully informed of all rules and regulations affecting the recipient;

DHS 105.16(10)(b)2. 2. To be fully informed of services to be provided by the nurse and of related charges, including any charges for services for which the recipient may be responsible;

DHS 105.16(10)(b)3. 3. To be fully informed of one’s own health condition, unless medically contraindicated, and to be afforded the opportunity to participate in the planning of services, including referral to a health care institution or other agency;

DHS 105.16(10)(b)4. 4. To refuse treatment to the extent permitted by law and to be informed of the medical consequences of that refusal;

DHS 105.16(10)(b)5. 5. To confidential treatment of personal and medical records and to approve or refuse their release to any individual, except in the case of transfer to a health care facility;

DHS 105.16(10)(b)6. 6. To be taught, and have the family or other persons living with the recipient taught, the treatment required, so that the recipient can, to the extent possible, help himself or herself, and the family or other party designated by the recipient can understand and help the recipient;

DHS 105.16(10)(b)7. 7. To have one’s property treated with respect; and

DHS 105.16(10)(b)8. 8. To complain about care that was provided or not provided, and to seek resolution of the complaint without fear of recrimination.

DHS 105.16(10)(c) (c) Universal precautions. A nurse shall have the necessary orientation, education and training in epidemiology, modes of transmission and prevention of HIV and other blood-borne or body fluid-borne infections and shall follow universal blood and body-fluid precautions for each recipient for whom services are provided. The nurse shall employ protective measures recommended by the federal centers for disease control (CDC), including those pertaining to medical equipment and supplies, to minimize the risk of infection from HIV and other blood-borne pathogens.

DHS 105.16 Note Note: A copy of the CDC recommended universal precautions may be obtained from the Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701.

DHS 105.16(10)(d) (d) Medical record. The nurse shall maintain a medical record for each recipient. The record shall document the nature and scope of all services provided and shall be systematically organized and readily accessible to authorized department personnel. The medical record shall document the recipient’s condition, problems, progress and all services rendered, and shall include:

DHS 105.16(10)(d)1. 1. Recipient identification information;

DHS 105.16(10)(d)2. 2. Appropriate hospital information, including discharge information, diagnosis, current patient status and post-discharge plan of care;

DHS 105.16(10)(d)3. 3. Recipient admission evaluation and assessment;

DHS 105.16(10)(d)4. 4. All medical orders, including the physician’s written plan of care and all interim physician’s orders;

DHS 105.16(10)(d)5. 5. A consolidated list of medications, including start and stop dates, dosage, route of administration and frequency. This list shall be reviewed and updated for each nursing visit, if necessary;

DHS 105.16(10)(d)6. 6. Progress notes posted as frequently as necessary to clearly and accurately document the recipient’s status and services provided. In this paragraph, “progress note” means a written notation, dated and signed by a member of the health team providing covered services, that summarizes facts about care furnished and the recipient’s response during a given period of time;

DHS 105.16(10)(d)7. 7. Clinical notes written the day service is provided and incorporated into the clinical record within 7 days after the visit or recipient contact. In this paragraph, “clinical note” means a notation of a contact with a recipient that is written and dated by a member of the home health team providing covered services, and that describes signs and symptoms, treatment and drugs administered and the patient’s reaction, and any changes in physical or emotional condition;

DHS 105.16(10)(d)8. 8. Written summaries of the recipient’s care provided by the nurse to the physician at least every 62 days; and

DHS 105.16(10)(d)9. 9. Written authorizations from the recipient or the recipient’s guardian when it is necessary for the nurse to procure medical supplies or equipment needed by the recipient, unless the recipient’s care is being provided by an MA-certified home health agency.

DHS 105.16(10)(e) (e) Back-up and emergency procedures.

DHS 105.16(10)(e)1. 1. The recipient shall be informed of the identity of the agency-assigned alternate nurse before the alternate nurse provides services.

DHS 105.16(10)(e)2. 2. The nurse shall document a plan for recipient-specific emergency procedures in the event a life-threatening situation or fire occurs or there are severe weather warnings. This plan shall be made available to the recipient and all caregivers prior to initiation of these procedures.

DHS 105.16(10)(e)3. 3. The nurse shall take appropriate action and immediately notify the recipient’s physician, guardian, if any, and any other responsible person designated in writing by the patient or guardian of any significant accident, injury or adverse change in the recipient’s condition.

DHS 105.16(10)(f) (f) Discharge of the recipient. A recipient shall be discharged from services provided by the nurse upon the recipient’s request, upon the decision of the recipient’s physician, or if the nurse documents that continuing to provide services to the recipient presents a direct threat to the nurse’s health or safety and further documents the refusal of the attending physician to authorized discharge of the recipient with full knowledge and understanding of the threat to the nurse. The nurse shall recommend discharge to the physician and recipient if the recipient does not require services or requires services beyond the nurse’s capability. The nurse provider shall issue a notification of discharge to the recipient or guardian, if possible at least 2 calendar weeks prior to cessation of skilled nursing services, and shall, in all circumstances, provide assistance in arranging for the continuity of all medically necessary care prior to discharge.

DHS 105.16 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; am. (intro.), (1) and (2), r. and recr. (3), cr. (4) and (5), Register, April, 1988, No. 388, eff. 7-1-88; emerg. r. and recr. (1) and (2), cr. (6), eff. 7-1-92; r. and recr. (1) and (2), cr. (6) to (10), Register, February, 1993, No. 446, eff. 3-1-93; correction in (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; corrections in (intro.), (2) (a), (c), (6) (a) (intro.), 2., (7) and (9) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 20-039: am. (6) (a) (intro.) Register October 2021 No. 790, eff. 11-1-21; EmR2306: emerg. cr. (1m), eff. 5-1-23; CR 23-045: cr. (1m) Register January 2024 No. 817, eff. 2-1-24.

DHS 105.17 DHS 105.17 Personal care providers.

DHS 105.17(1) (1) Definitions. In this section:

DHS 105.17(1)(a) (a) “Client” means an individual who receives personal care services from an entity certified or required to be certified under this section, irrespective of whether that individual is a medicaid recipient.

DHS 105.17(1)(ag) (ag) “Delegated act” means an act that is delegated to an RN or L.P.N. by a physician, podiatrist, dentist or optometrist.

DHS 105.17(1)(am) (am) “Freestanding personal care agency” means an entity described in s. 49.45 (42) (d) 3. e., Stats.

DHS 105.17(1)(b) (b) “Legal representative” means a person who is any of the following:

DHS 105.17(1)(b)1. 1. A guardian as defined under s. 54.01 (10), Stats.

DHS 105.17(1)(b)2. 2. A person appointed as a health care agent under an activated power of attorney for health care under ch. 155, Stats.

DHS 105.17(1)(b)3. 3. A person appointed as an agent under a durable power of attorney under s. 243.07, 1989 Stats., executed on or before April 28, 1990.

DHS 105.17(1)(b)4. 4. A parent of a minor child.

DHS 105.17(1)(c) (c) “Principal” means an administrator, a person with management responsibility for the applicant, an officer or person owning directly or indirectly 5% or more of the shares or other evidences of ownership of a corporate applicant, a partner in a partnership which is an applicant, or the owner of a sole proprietorship which is an applicant.

DHS 105.17(1c) (1c) Requirements. For MA certification, a personal care provider shall be one of the following types of entities and shall meet applicable certification requirements:

DHS 105.17(1c)(a) (a) A home health agency licensed under s. 50.49, Stats., and ch. DHS 133.

DHS 105.17(1c)(b) (b) A county department established under s. 46.215, 46.22 or 46.23, Stats.

DHS 105.17(1c)(d) (d) An independent living center as defined in s. 46.96 (1) (ah), Stats.

DHS 105.17(1c)(e) (e) A federally recognized American Indian tribe or band in Wisconsin.

DHS 105.17(1c)(f) (f) A freestanding personal care agency.

DHS 105.17(1e) (1e) Contracting, planning and coordination; fit and qualified. A personal care provider shall do all of the following:

DHS 105.17(1e)(a) (a) Possess the capacity to enter into a legally binding contract.

DHS 105.17(1e)(b) (b) Present a proposal to the department to provide personal care services that does all of the following:

DHS 105.17(1e)(b)1. 1. Documents cost-effective provision of services.

DHS 105.17(1e)(b)2. 2. Documents a quality assurance mechanism and quality assurance activities.

DHS 105.17(1e)(b)3. 3. Demonstrates that employees possess knowledge of and training and experience with special needs, including independent living needs, of the client group or groups receiving services.

DHS 105.17(1e)(c) (c) Provide a written plan of operation describing the entire process from referral through delivery of services and follow-up.

DHS 105.17(1e)(d) (d) Cooperate with other health and social service agencies in the area and with interested community referral groups to avoid duplication of services and to provide coordination of personal care services to clients.

DHS 105.17(1e)(e) (e) Be fit and qualified. All of the following factors are relevant to a determination by the department whether the applicant is fit and qualified for purposes of this paragraph:

DHS 105.17(1e)(e)1. 1. Any adverse action against the applicant or any principal by a licensing agency of any state that resulted in denial, suspension, injunction, or revocation of a license to operate a human services or health care agency or facility.

DHS 105.17(1e)(e)2. 2. Any adverse action against the applicant or any principal initiated by a state or federal agency based on non-compliance that resulted in civil money penalties, termination of a provider agreement, suspension of payments, or the appointment of temporary management of a facility or agency.

DHS 105.17(1e)(e)3. 3. Any conviction of the applicant or any principal for a crime involving neglect or abuse of patients or of the elderly or involving assaultive behavior or wanton disregard for the health or safety of others, or any act of abuse under s. 940.285 or 940.295, Stats., or similar law in another jurisdiction.