Wisconsin Legislature: DHS 122.07(1t)(e)2.a.

(a) The proposed per diem rates for the FDD are consistent with those of similar facilities for developmentally disabled persons;

(b) The applicant has experience in providing active treatment as defined in 42 CFR 435.1099 and the department has approved the applicant’s program statement under s. DHS 132.51 (3);

(c) Conversion of some beds within a non-FDD nursing home to FDD beds will result in a physically separate unit of the facility, which may be a ward, contiguous wards, a wing, a floor or a building, and which is separately staffed;

(d) Staff will be efficiently deployed in the FDD part of the facility and in the nursing home part of the facility, as well as in the facility as a whole;

(e) The FDD will have a minimum of 16 beds for developmentally disabled persons; and

(f)

1. A number of developmentally disabled residents sufficient to fill the requested beds currently reside in the facility and require active treatment; and

2. If the applicant proposes more beds than it has residents under par. (f), that county departments organized under s. 46.23, 51.42 or 51.437, Stats., identify persons who need placement in an FDD and give assurances that these persons will be placed in that facility.

(1r) Additional review criteria for conversion of an FDD to a nursing home. The department shall use the applicable criteria in sub. (1) and the additional criteria in this subsection in its review of an application under s. DHS 122.02 (2) (b) and s. 150.21 (5), Stats., for the total conversion of an FDD under ch. DHS 134 to be a nursing home under ch. DHS 132. The department shall not approve an application subject to this subsection unless the applicant demonstrates that:

(a) The proposed per diem rates for the nursing home are consistent with those of similar facilities;

(b) There will remain in the health planning area in which the applicant FDD is located sufficient FDD beds to serve the population of persons with developmental disabilities, including any residents of the converting facility who need to remain in an FDD;

(c) There are other adequate and appropriate resources available in the county or counties served by the facility being converted for relocating its residents as determined by the applicable county department or departments organized under s. 46.23, 51.42 or 51.437, Stats.; and

(d) The facility, in conjunction with the applicable county department or departments organized under s. 46.23, 51.42, or 51.437, Stats., has developed a preliminary relocation plan under s. 50.03 (14) (c) 8., Stats., for each resident which is acceptable to the county department or departments and addresses the needs and concerns of the resident or the resident’s guardian.

(1t) Review criteria for nursing home design pilot projects. The department, in its review of all applications under s. DHS 122.06 (3m) for nursing home design pilot projects, shall use the criteria in sub. (1), with the exception of sub. (1) (c) and (d), and the additional criteria in this subsection. The department may approve no more than 3 projects subject to this subsection. An applicant shall do each of the following:

(a) Document a significant departure from traditional nursing home design;

(b) Document through pilot research or sound academic theory that:

1. The new nursing home design improves the quality of life and care of nursing home residents;

2. The new nursing home design improves productivity of nursing home staff; and

3. There is a need for additional research;

(c) Utilize a minimum of 30 existing nursing facility beds for the research and a comparable control group of nursing facility beds in the traditional nursing home setting within the same licensed facility;

(d) Submit a copy of the written research proposal which documents that the proposal:

1. Has been prepared in conjunction with an established independent research organization; and

2. Will be conducted in conjunction with an established independent researcher;

(e) Document that the study will measure:

1. Outcome effectiveness of the design through:

a. Quality of resident care;

b. Quality of resident life; and

c. Staff productivity; and

2. Impact of design on costs, including:

a. Operating costs; and

b. Capital costs;

(f) Document:

1. The availability and sources of funding for the research proposal; and

2. The organizational resources committed to the proposed research;

(g) Document that the cost per bed will not exceed an amount 45% over the maximum cost per bed as determined in sub. (1) (c);

(h) Agree to obtain the written consent to participate in the research from all residents participating in the research or from their guardians; and

(i) Document a 92% occupancy rate by reference to the most recent annual survey of nursing homes issued by the department.

(2) Ranking and selection process.

(a) Applications for new or redistributed beds which meet all of the criteria in sub. (1) shall be subject to the following final selection process:

1. Applications shall be ranked in the order of their proposed composite per diem rates, beginning with the lowest and ending with the highest. Rates within one percent of each other shall be considered equal for purposes of ranking. The composite per diem rate shall be calculated as follows:

a. Multiply the proposed skilled nursing facility per diem rates, exclusive of supplements, for each payment source by the percentage of projected skilled nursing facility patient days by payment source; and

b. Add all the products of the multiplication in subpar. a to obtain the composite per diem rate;

2. The department shall review the applicant’s methodology for calculation of the proposed rates for consistency with current reimbursement practices and reasonableness. An applicant whose rates are found to be inconsistent or unreasonable will be removed from the selection process;

3. The department shall approve projects in the order of their ranking until all beds allotted to a planning area are distributed;

4. The department may approve an application proposing a higher per diem rate than others undergoing concurrent review if the applicant can demonstrate that the application would substantially resolve a significant problem identified in the state health plan with respect to:

a. The existing distribution of beds in the county in which the project would be located, or in contiguous counties;

b. The need to serve a special diagnostic group of inpatients in the planning area or county in which the project would be located; or

c. The existing distribution of population within the planning area or county in which the project would be located; and

5. If the composite per diem rate for 2 or more of the applicants undergoing concurrent review is equal, the department shall approve or deny those projects as follows:

a. If the total number of beds proposed by all applicants undergoing concurrent review is less than the total number of beds available, each of the projects shall be approved; and

b. If the total number of beds proposed by all applicants undergoing concurrent review is greater than the number of beds available, applications shall be ranked on the basis of per bed cost as calculated in sub. (1) (c), beginning with the lowest and ending with the highest. The department shall then approve projects in order of this ranking until all beds available are distributed.

(am) Applications under s. DHS 122.02 (2) (a) and (c) which meet all of the criteria in subs. (1) and (1m) shall be subject to the following selection process:

1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the beds available under s. DHS 122.04 (1) (b) 2. a., the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1) and (1m), assigning the lowest number to the application which best meets each criterion.

2. The department shall approve applications in order beginning with the lowest score, until all available beds are allocated. If there is a tie between applications for the last available approval, the department shall rank the applications according to their scores on review criteria under sub. (1m) (b).

(at) Applications under s. DHS 122.06 (3m) which meet all of the applicable criteria in subs. (1), (1m) and (1t) shall be subject to the following selection process:

1. If after removing from consideration all applications which fail to meet one or more review criteria, there remain more applications than can be approved for the number of projects allowed under sub. (1t), the department shall rank the remaining applications according to how each meets each applicable review criterion under subs. (1), (1m) and (1t), assigning the lowest number to the application which best meets each criterion.

2. The department shall approve projects in order beginning with the lowest score, until all approvable projects are allocated. If there is a tie between applications, the department shall rank those applications based on the best research design.

(b) Applications for renovation proposals, replacement facilities and capital expenditures over $600,000 which do not affect bed capacity and which meet all criteria in sub. (1) shall be approved unless the per diem rates proposed as a result of the project are inconsistent with those of similar FDD or other nursing home projects recently approved by the department.

(d) The department may not approve new beds if this would cause the statewide bed limit to be exceeded.

History: Cr. Register, March, 1985, No. 351, eff. 4-1-85; emerg. cr. (1m) and (2) (am), eff. 1-1-87; am. (2) (a) (intro.) and 1., cr. (2) (a) 5., Register, January, 1987, No. 373, eff. 2-1-87; emerg. cr. (1m) and (2) (am), eff. 5-31-87; cr. (1m) and (2) (am), Register, October, 1987, No. 382, eff. 11-1-87; emerg. cr. (1r), eff. 10-1-88; emerg. am. (1) (c) 1. and 2. eff. 3-16-90; am. (1) (c) 1. and 2., Register, September, 1990, No. 417, eff. 10-1-90; correction in (1) (g) 1. made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1990, No. 417; am. (1) (f), (2) (a) 4. intro. and (c), cr. (1) (L), Register, January, 1991, No. 421, eff. 2-1-91; emerg. cr. (lr), eff. 5-11-93; emerg. r. and recr. (lr) (d), eff. 9-30-93; cr. (lr), Register, January, 1994, No. 457, eff. 2-1-94; emerg. cr. (1t) and (2) (at), eff. 11-29-95; cr. (1t) and (2) (at), Register, May, 1996, No. 485, eff. 6-1-96; correction in (1m) (f) 2., made under 13.93 (2m) (b) 7., Stats., Register, September, 1999, No. 525; corrections in (1) (g) 1., (1m) (b) and (1r) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.

DHS 122.08 Hearing process.

(1) Right to a hearing. An applicant whose application is rejected may request a public hearing to review the department’s initial finding.

(2) Request for a hearing.

(a) An applicant desiring a public hearing shall file a written request for a public hearing, no later than 10 days after the issuance of the initial finding, to both the department’s division of health care financing and the department of administration’s division of hearings and appeals.

Note: The Division of Health Care Financing has been renamed the Division of Health Care Access and Accountability. The mailing address of the Department’s Division of Health Care Access and Accountability is P.O. Box 309, Madison, Wisconsin 53701 and the mailing address of the Division of Hearings and Appeals P.O. Box 7875, Madison, Wisconsin 53707.

(b) The applicant requesting the hearing shall identify the criteria at issue no later than 20 days after the issuance of the finding.

(3) Public hearing.

(a) Start of hearing process. The department shall commence the hearing process within 30 days after receiving a request under sub. (2), or 30 days following the last request in the event of a concurrent review, unless all parties to the hearing consent to an extension of this period. The hearing process shall begin upon appearance of the parties before the hearing examiner as part of a prehearing conference.

(b) Applications undergoing concurrent review. All applications undergoing concurrent review shall be considered at one hearing.

(c) Location. All public hearings and prehearing conferences shall be held in the city of Madison unless any party demonstrates that this would impose an undue hardship on that party.

(d) Legal issues. A public hearing under this subsection shall consist of a review of the department’s initial finding to approve or reject the project. The only issues in the hearing are whether the department’s initial finding was:

1. Contrary to the weight of the evidence on the record when considered as a whole;

2. Arbitrary and capricious; or

3. Contrary to law.

(e) Prehearing conference.

1. At least 14 days prior to the public hearing, a prehearing conference shall be held. The purpose of the prehearing conference shall be to consider:

a. The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; and

b. The scheduling of the submission of names of witnesses to be called and the subject matter of testimony to be presented at the hearing.

2. The hearing examiner may issue prehearing orders:

a. Directing the order of presentation;

b. Limiting evidence and the number of witnesses;

c. Requiring that evidence be presented in written form and exchanged among parties prior to the hearing; and

d. Determining whether a party as defined under s. 227.01 (6), Stats., has standing to participate in the hearing.

3. The hearing examiner shall prepare a memorandum summarizing the actions taken at the conference.

(f) Procedures for conducting the hearing.

1. Issues raised at the hearing shall be limited to the review criteria cited as grounds for disapproval in the initial finding. Criteria not identified in the initial finding are deemed met or not applicable. Evidence may be received which relates to noncontested criteria only to the extent the evidence is relevant to contested criteria.

2. Except as provided in subd. 3., evidence admitted at the hearing shall be limited to:

a. The application, supporting documents which were submitted with the application, and additional information submitted in response to the department’s requests;