WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services proposes an order to repeal DHS 105.17 (2) (b) (2.) (note); to amend DHS 105.17 (1n) (a) 2. b. and (d) DHS 105.17(1n)(d)1.1., and DHS 105.17 (2) (b) 2.; to repeal and recreate DHS 105.17 (2) (b) 1., DHS 105.17 (5) (b) and (c); to create DHS 105.17 (1) (ag), DHS 105.17 (1e) (f) to (L) and (1k), DHS 105.17 (3) (a) 4. and 5., and DHS 105.17 (6) and (7), relating to personal care providers. RULE SUMMARY
Statute interpreted
None.
Statutory authority
Sections 49 (2) (a) 11., (10) and (42), Stats.
Explanation of agency authority
Section 49.45 (2) (a) 11., Stats., authorizes the department to establish criteria for certification of providers of Medical Assistance, certify providers who meet certification criteria and promulgate rules to implement the statute.
Section 49.45 (10), Stats., authorizes the department to promulgate rules consistent with its duties in administering Medical Assistance, including its duties relating to reimbursement for personal care service by certified providers.
Section 227.11 (2) (a), Stats., allows agencies to promulgate rules interpreting the provision of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute. Related statute or rule
Plain language analysis
The 2009 - 2011 biennial budget bill expanded the types of entities that could be certified by the Department of Health Services (“department”) as Medicaid personal care providers to include free-standing personal care agencies (PCAs), in addition to counties, federally recognized American Indian tribes and bands, home health agencies, and independent living centers. Section DHS 105.17 was revised July 2010 in response to the addition of free-standing PCAs. Since 2010, the department has certified 389 free-standing PCAs, with an additional 8 free-standing PCAs in the process of being certified.
The department has determined that existing standards contained in s. DHS 105.17 are not adequate to monitor compliance with Medicaid requirements and to prevent fraud, waste, and abuse by PCAs in the Medicaid program. In addition, the department determined that provisions relating to the health, safety, and rights of clients receiving services from PCAs or subcontractors could be strengthened.
The department therefore intends to revise s. DHS 105.17 and propose changes relating to governing bodies, staff qualifications, minimum age requirements, supervision of personal care workers, quality improvement, facility closure and provider certification.
2a. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
Pursuant to s. 49.45 (2) (a) 11., Stats., the department proposes to amend s. DHS 105.17 as follows:
On-site survey prior to certification
Currently, the department recommends a PCA for provisional certification based on a review of the PCA’s application packet and without conducting an on-site survey of the PCA. An on-site survey is not required and may not be conducted by the department for several months after provisional certification is granted, at which time significant problems may be identified. The department proposes to revise the certification standards of s. DHS 105.17 to require an on-site survey and a finding of substantial compliance with the regulations before provisional certification may be granted to the PCA.
Duties of the personal care provider
Currently, there is no requirement for a PCA to adopt written policies, procedures and a statement outlining the services to be provided. The department proposes to establish standards that would require a PCA to develop operating policies and procedures, and developDHS 133.05(1)(b) a statement of the services to be provided by the PCA and to notify the department when there is a change in administrator and if there a change in the location of the agencyDHS 133.05(1)(d).
Administrator and administrator qualifications
Currently, there is no requirement for a PCA to appoint an administrator and substitute administrator responsible for supervising daily operations. The department proposes to establish standards requiring the appointment of a qualified administrator and substitute administrator responsible for ensuring that staff is knowledgeable and compliant with requirements governing PCAs. Existing administrators will not be subject to newly proposed qualification requirements.
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 proposes 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 any problems.
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 proposes 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
Currently, s. DHS 105.17 requires that a registered nurse conduct a supervisory visit in the client’s home every 60 days to DHS 107.112(3)(c)evaluate the client's condition, review the plan of care, review the personal care worker's written record and, when needed, discuss with the physician any necessary changes in the plan of care. The supervisory visit is not required to be conducted during the provision of personal care services, so workers are not directly observed providing personal care services. The department proposes to require that the supervisory visits be conducted by the registered nurse when the personal care worker is present, to require the registered nurse to observe the personal care worker providing care to the client, and to evaluate whether staff is providing care in compliance with regulatory requirements.
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.
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. Summary of, and comparison with, existing or proposed federal regulations
Section 440.167 of 42 CFR contains the requirements for providing personal care services to Medicaid recipients. Section 440.167 does not provide detail on the types of agencies that are allowed to provide personal care services or to directly bill the Medicaid program for reimbursement. Comparison with rules in adjacent states
Illinois:
Wisconsin offers personal care as an optional Medicaid state plan service but Illinois does not. Illinois does offer some type of personal care services under waivers. Title 77, Chapter 6, Part 245, Home Health, Home Services and Home Nursing Code. Illinois State Code requires that all home services agencies in Illinois be licensed. Services provided by these agencies may include activities of daily living support, personal care, medication reminders, housekeeping, laundry and assistance getting to and from appointments. Providers of home services are required to conduct background check on all employees and develop and implement policies and procedures for investigating and preventing abuse, neglect and financial exploitation. All alleged incidents must be reported and a written report prepared of the investigation of all allegations or reasonable suspicion that a client has been a victim of abuse, neglect, of financial exploitation. The investigation report must include the dates, times and description of the alleged abuse, neglect or financial, exploitation, a description of injury or abuse to the client, actions taken by the licensee, individuals and agencies interviewed or notified by the licensee and a description of the actions to be taken by the licensee to prevent further occurrences. Providers are required to control and prevent infections and adhere to the guidelines of the Centers for Disease Control and Prevention. Each provider must develop a quality improvement program that reviews, at least quarterly, a sample of active and closed client records to assure that polices are followed in providing services. Home service programs must provide a service plan for each client served, in consultation with the client, and the appropriate family member or representatives. Home services workers must not have a disqualifying background check and must complete at least 8 hours of training and competency evaluations that shows the person is competent to provide services. The competency evaluation must cover communication skills, performing personal care tasks, basic hygiene, confidentiality of client personal records, health information, promoting dignity, disaster procedures and abuse and neglect prevention and reporting.
Iowa:
Wisconsin offers personal care as an optional Medicaid state plan service but Iowa does not. Iowa does offer some type of personal care services under waivers. Iowa Administrative Code 441—78.53 (249A) Health home services. Health home services consist of a comprehensive, timely, and high-quality manner using health information technology to link services, comprehensive care management providing for all the member’s health care needs, or taking responsibility for arranging care with other qualified professionals; developing and maintaining for each member a continuity of care document that details all aspects of the member’s needs, treatment plan, and medication list; and implementing a formal screening tool to assess needs. Care coordination consists of helping the client adhere to their medication regimen, manage chronic disease, getting to and from appointments, and understanding health insurance coverage. Home services providers are required to assist clients to enhance safety, disease prevention, and an overall healthy lifestyle. Providers are also expected to provide comprehensive transitional care following a member’s move from an inpatient setting to another setting.
Michigan:
Michigan and Wisconsin offer personal care as an optional Medicaid state plan service. Michigan home care services cover a wide range of supportive activities that serve to supplement, maintain or restore a person’s independence. Care in the home may involve both non-medical home care services and skilled home health care services. Non-medical services offer assistance with chores, housecleaning and with activities of daily living such as bathing, eating, hygiene, dressing and ambulation. The State of Michigan does not regulate non-medical home care services. Providers of these services establish their own policies and practices regarding their business operation. Business practices may differ in hiring, screening and monitoring of staff, pricing of services, types and terms of service delivery (e.g. minimum number of hours for a visit).
Minnesota:
Minnesota offers personal care as an optional Medicaid state plan service. Minn. Stat. §256B.0625 subd. 19c., Minn. Stat. §256B.0659 subd. 13 and subd. 25. Personal care assistance (PCA) is a service for people who need help with day-to-day activities so they can be more independent in their homes and communities. Services include activities of daily living, such as eating, dressing, moving within one’s home, meal planning and preparation, shopping, and traveling to medical appointments and community activities, observation and redirection of behaviors and health-related procedures and tasks. To receive personal care services in Minnesota, a person must be on Medical Assistance or be a pregnant woman or child enrolled in MinnesotaCare, be able to make decisions about their own care or have someone who can make the decisions for them, live in a home or apartment, need help with activities such as those listed above.
Freestanding PCA agencies are not required to have a state license. However, the Minnesota Department of Health licenses some agencies, such as home health agencies, that provide PCA services. PCA agencies must renew their enrollment as a Minnesota Health Care Programs provider on an annual basis to assure that they meet provider standards and are qualified to provide services. Individual PCAs must also meet provider standards by enrolling as a Minnesota Health Care Programs provider, passing a criminal background study and satisfactorily completing required online training. All PCA services must be supervised by a qualified professional as defined in state statute. A qualified professional in a registered nurse, licensed social worker, mental health professional or a qualitied developmental disabilities specialist. Services are to be provided under the direction of a care plan. The care plan must be completed or updated within the first seven days of starting services with a PCA provider agency, when there is a change in condition, tasks, procedure, living arrangements, responsible party or annually at the time of the reassessment. The PCA care plan can only include services that are allowable as covered services and cannot include services identified as non-covered services. Summary of factual data and analytical methodologies
The department formed an advisory committee composed of representative of the Wisconsin Personal Services Association (WSPA), Wisconsin Homecare Organization (WHO), Counties and personal care agencies. Representative from these organizations were provided a copy of the initial draft of the rule and asked for comments.
Analysis and supporting documents used to determine effect on small business
The department solicited information and advice from individuals, businesses, associations representing businesses, and local governmental units who may be affected by the proposed rule for use in analyzing and determining the economic impact that the rules would have on businesses, individuals, public utility rate payers, local governmental units, and the state’s economy as a whole from 11/12/18-11/26/18.
Public comments were received that define a qualified trainer to mean a person trained by an RN and that would require an RN to evalutate a qualified trainer annually. Commentors cited workforce considerations and said that this would cause a financial hardship to the agency. The department did include this language in the updated proposed rule.
Additional language was included in the proposed rule that would require a branch office to be a physical location and eliminate the use of technology to meet client needs, particularly in rural areas. Recognizing the financial impact and impact of residents in rural Wisconsin as outlined by public comments, the department did not include this language in the updated proposed rule.
The department sought to require personal care workers to be a minimum of 18 years old. Public commentors stated that they employ staff who are 16 years old and suggested a minimum age of 16 years. The department changed the minimum working age to 16 in the updated proposed rule.
Public comments were received regarding requiring the use and anticipated cost of an electronic visit verification system. The department did not include this language in the updated proposed rule.
The department also received comments regarding the qualifications for the substitute administrator. In the updated proposed rule, the substitute administrator is not required to meet the qualifications of the administrator.
