Quality improvement program
Currently, a PCA is not required to have a quality improvement program to evaluate the effectiveness of its program and services. The department intends to establish standards that would require PCAs to have an ongoing quality improvement committee. The committee would be responsible for evaluating client services, identifying areas of improvement, and documenting and implementing plans to correct problems.
Staff training
Currently, PCAs are not required to provide orientation and ongoing training to staff working directly with clients in various areas of mandated care. The department intends to revise s. DHS 105.17 to strengthen orientation and ongoing training standards in order to improve the quality of services provided by personal care workers and staff. Minimum age and skills set for personal care workers
Currently, no minimum age or skill set requirements are specified in s. DHS 105.17 for personal care workers providing services to vulnerable clients in their homes. The department intends to revise s. DHS 105.17 to establish minimum age and qualification requirements for personal care workers to ensure that vulnerable clients receive adequate care. Supervision of the personal care worker
Section DHS 105.17 requires that a registered nurse conduct a supervisory visit in the client’s home every 60 days to evaluate whether staff is providing care in compliance with regulatory requirements. The registered nurse must DHS 107.112(3)(c)evaluate the client's condition, evaluate the services provided to the client by the personal care worker, review service records and the plan of care and, when needed, discuss with the physician any necessary changes to the plan of care. The department proposes to clarify the existing requirement that supervisory visits be conducted at a time when the personal care worker may be directly observed providing services to clients in the client’s home. Agency closure
Currently, PCAs are not required to notify a client or the client’s representative when the PCA is closing, or to provide assistance to the client in arranging for continuity of necessary services. The department therefore intends to revise s. DHS 105.17 to ensure clients or their representatives are provided sufficient notice and assistance in obtaining alternative personal care services in the event of a PCA closure. 2b. Analysis of policy alternatives
The department could choose not to revise s. DHS 105.17. However, this alternative is not reasonable because the department has determined that oversight of PCAs is inadequate to ensure a minimum standard of care for vulnerable clients, and to prevent fraud, waste, and abuse by PCAs in the Medicaid program. This determination is also confirmed by the federal Office of Inspector General, that found significant and persistent compliance, payment, and fraud vulnerabilities by PCAs in its report titled: Personal Care Services, Trends, Vulnerabilities, and Recommendations for Improvement (November 2012). The department could choose to propose voluntary guidelines for PCAs, rather than establishing standards by rule. However, this alternative is not reasonable because voluntary compliance with such guidelines would prevent the department from ensuring consistency in the standard of care provided to vulnerable clients. In addition, voluntary compliance with such guidelines would impede the department’s efforts to reduce fraud, waste, and abuse in the Medicaid program.
3. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
The department’s authority to promulgate rules is as follows:
Establish criteria for certification of providers of medical assistance and, except as provided in par. (b) 6m. and s. 49.48, and subject to par. (b) 7. and 8., certify providers who meet the criteria. Section 49.45 (10), Stats., states, in relevant part: Rule-making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance.
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
4. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
The department will spend approximately 2,000 staff hours for rulemaking. The department may form an advisory committee to assist in developing the rule.
5. List with description of all entities that may be affected by the proposed rule:
The entities that may be affected by the proposed rule are PCAs, PCA staff and employees, PCA governing bodies, clients of PCAs, and client representatives.
6. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.
7. Anticipated economic impact of implementing the rule:
The proposed rule is anticipated to have little to no economic impact if promulgated. The proposed rule will have an impact on small businesses.
Contact Person:
Pat Benesh, Division of Quality Assurance
608-264-9896
