(b) A resource center shall assist clients to file requests for fair hearings with the division of hearings and appeals.
SECTION 32. DHS 10.53 (2) (title) and (a) to (c) are amended to read:
DHS 10.53 (2) Grievance and appeals process in care management organizations. (a) The governing board of each CMO shall approve and shall effectively operate a process for reviewing and resolving client enrollee grievances and appeals. The board may delegate, in writing, its responsibility for review of complaints reviewing and resolution of resolving grievances and appeals to a committee of the CMO’s senior management, provided that the board is made aware of grievances and requests for department review and fair hearings.
(b) The department shall review and approve a resource center’s CMO’s grievance and appeal process as part of its contracting with the CMO.
(c) A CMO shall individuals to file and resolve grievances or appeals, including assistance with committing an oral grievance or appeal to writing. The CMO shall inform enrollees of all of the following:
SECTION 33. DHS 10.53 (2) (bg) and (br), (c) 1. To 4., (d), (e) and (f) are created to read:
DHS 10.53 (2) (bg) An enrollee may file a grievance at any time.
DHS 10.53 (2) (br) The CMO shall complete its review of a grievance and issue its written decision to the enrollee within 90 days of its receipt of the grievance, unless the grievance decision timeframe is extended under the extension requirements specified in the contract with the department.
DHS 10.53 (2) (c) 1. The circumstances under which expedited resolution of a grievance is available and how to request it.
2. The enrollee has the right to appear in person before the CMO personnel assigned to resolve a grievance, if the enrollee files the grievance.
3. The availability of independent advocacy services and other local organizations that might assist an enrollee with a grievance.
4. The enrollee may obtain, free of charge, copies of enrollee records relevant to the grievance and how to obtain the copies.
DHS 10.53 (2) (d) A CMO shall assist enrollees with filing grievances with the CMO. If an enrollee is dissatisfied with the CMO’s grievance decision, or the CMO fails to render a grievance decision within the timeframe specified under subd. (2) (br), a CMO shall assist the individual with requesting a department review of the grievance under s. DHS 10.54.(e) An enrollee must file the appeal within 60 days of the date on the adverse benefit determination notice. DHS 10.53 (2) (f) The CMO shall complete its review of an appeal and issue its written decision to the enrollee within 30 days of its receipt of the appeal, unless the appeal decision timeframe is extended under the extension requirements specified in the contract with the department.
DHS 10.53 (2) (g) A CMO shall assist enrollees with filing appeals with the CMO. If the enrollee is dissatisfied with the CMO’s appeal decision, or the MCO fails to render an appeal decision within the timeframe specified under sub. (3) (f), a CMO shall assist the individual with requesting a fair hearing with the division of hearings and appeals under s. DHS 10.55. SECTION 34. DHS 10.54 (1) (title), (intro), (a) and (b), (2) (title), and (3) (title) and (3) are amended to read:
DHS 10.54 Department reviews. (1) GENERAL Department review process for grievances filed with a resource center. The department shall establish a process for the timely review, investigation investigate, and analysis of analyze the facts surrounding client grievances or appeals in an attempt to resolve concerns and problems informally, whenever either of the following occurs:(a) A client makes a grievance or appeal directly to the department.
(b) A client requests department review of a decision arrived at through a county agency, or resource center or care management organization grievance process.
DHS 10.54 (2) Timeliness of reviews review.
DHS 10.54 (3) Concurrent Department review process for fair hearings. Whenever the department receives notice from the department of administration’s division of hearings and appeals that it has received a fair hearing request under s. DHS 10.55 (1) (d) to (g) (3), the department shall use the process in sub. (1) to conduct a concurrent an informal review in accordance with s. DHS 10.55 (4). SECTION 35. DHS 10.54 (2e) (intro), (a) and (b), (2j), (2o), and (2v) are created to read:
DHS 10.54 (2e) Department review process for grievances filed with a CMO. The department shall review and resolve enrollee grievances whenever either of the following occurs:
(a) An enrollee requests department review of a decision arrived at through a care management organization grievance process under s. DHS 10.53 (2). (b) An enrollee requests department review of a grievance request that the CMO has failed to act on within the timeframe specified under s. DHS 10.53 (2) (d). DHS 10.54 (2j) Timeframe for requesting department review. An enrollee must file the request for grievance review within 45 days of the receipt of the CMO’s written decision regarding the enrollee’s grievance or, if the CMO fails to issue a written grievance decision to the enrollee within the timeframe specified under s. DHS 10.53 (2) (d), within 45 days of the date that timeframe expires. DHS 10.54 (2o) Timeliness of review. The department shall complete its review under sub. (2e) within 30 days of receiving a request for review from an enrollee, unless the enrollee and the department agree to an extension for a specified period of time.
DHS 10.54 (2v) Timeliness of decision. The department shall mail or hand deliver to the enrollee and the CMO a written decision resolving the grievance within 7 days of the completion of the grievance review. This decision is final and binding on both the enrollee and CMO. Department review is the final process in resolving enrollee grievances.
SECTION 36. DHS 10.55 (1) (title), (intro) is amended to read:
DHS 10.55 (1) Right to fair hearing in resource center and county agency adverse benefit determinations. Except as limited in subs. (1m), (2) and sub. (3) and s. DHS 10.62 (4), a client has a right to a fair hearing under s. 46.287, Stats. The contested matter may be a decision or action by the department, a resource center, county agency or CMO, or the failure of the department, a resource center, county agency or CMO to act on the contested matter within timeframes specified in this chapter or in the contract with the department. The following matters may be contested through a fair hearing may contest any of the following adverse benefit determinations by filing, within 45 days of receipt of notice of the adverse benefit determination, a written request for a hearing to the division of hearings and appeals: SECTION 37. DHS 10.55 (1) (d) to (g) are repealed.
SECTION 38. DHS 10.55 (1) (h) to (k) are renumbered DHS 10.55 (1) (L) to (p):
DHS 10.55 (1) (L) Termination of the family care benefit.
(m) Determinations of protection of income and resources of a couple for maintenance of a community spouse under s. DHS 10.35 to the extent a hearing would be available under s. 49.455 (8) (a), Stats. (n) Recovery of incorrectly paid family care benefit payments as provided under s. DHS 108.03 (3). (p) Determination of temporary ineligibility for the family care benefit resulting from divestment of assets under s. DHS 10.32 (1) (i). SECTION 39. DHS 10.55 (1g) (title), (a) to (c), (d) (intro) and 1. 2., (e) to (h), and (i) (intro.) and 1. to 3. are created to read:
DHS 10.55 (1g) Right to a fair hearing. Care management organization adverse benefit determinations. Except as limited in subs. (1m), (2) and (3), an enrollee may contest any of the following adverse benefit determinations by filing, within 90 days of the failure of a care management organization to act on a contested adverse benefit determination within the time frame specified under s. DHS 10.53 (2) (e) or within 90 days after receipt of notice of a decision upholding the adverse benefit determination, a written request for a hearing to the division of hearings and appeals: (a) Denial of functional eligibility under DHS 10.33 as a result of the care management organization's administration of the long-term care functional screen, including a change from a nursing home level of care to a non-nursing home level of care.
(b) Failure of a CMO to provide timely services and support items that are included in the plan of care.
(c) Denial or limited authorization of a requested service, including determinations based on type or level of service, requirements or medical necessity, appropriateness, setting, or effectiveness of a covered benefit.
(d) Reduction, suspension or termination of services to support items in the enrollee’s service plan, except when either of the following apply:
1. The reduction, suspension or termination was agreed to by the enrollee.
2. The reduced, suspended or terminated service or support was only authorized for a limited amount or duration and that amount or duration has been completed.
(e) Denial, in whole or in part, of payment for a service.
(f) Failure of a CMO to act within the timeframes provided in 42 CFR 438.408(b)(1) and (2) regarding the standard resolution of grievances and appeals. (g) Denial of an enrollee’s request to dispute financial liability, including copayments, premiums, deductibles, coinsurance, other cost sharing, and other enrollee financial liabilities.
(h) Denial of an enrollee, who is a resident of a rural area with only one CMO, to obtain services outside the CMO’s network of contracted providers.
(i) An individualized service plan that is unacceptable to the enrollee because any of the following apply:
1. The plan is contrary to an enrollee's wishes insofar as it requires the enrollee to live in a place that is unacceptable to the enrollee.
2. The plan does not provide sufficient care, treatment or support to meet the enrollee's needs and identified family care outcomes.
3. The plan requires the enrollee to accept care, treatment or support items that are unnecessarily restrictive or unwanted by the enrollee.
SECTION 40. DHS 10.55 (1m), (2) (title) and (2), (3) and Note, (4) (intro.), (b), and (5) (a) 3. are amended to read:
DHS 10.55 (1m) Exception to right to fair hearing. An enrollee does not have a right to a fair hearing under sub. (1) (1g), if the sole issue is a federal or state law requiring an automatic change adversely affecting some or all enrollees and the enrollee does not dispute that he or she falls they fall within the category of enrollees to be affected by the change.
DHS 10.55 (2) LIMITED RIGHT TO FAIR HEARING Grievances. An enrollee may contest, through fair hearing, any decision, omission or action of a CMO other than those specified under sub. (1) (d) to (f) only if a (1g) by filing a grievance with the CMO grievance decision under s. DHS 10.53 (2) (a) or a (2). If the enrollee is not satisfied with the CMO’s grievance decision, or if the CMO fails to issue a grievance decision within the timeframes specified under s. DHS 10.53 (2) (a) or (2) (d), the enrollee may request a department review under s. DHS 10.54 has failed to resolve the matter to the satisfaction of the enrollee within the time period approved by the department in s. DHS 10.53 (2) (b) or specified under s. DHS 10.54 (2). DHS 10.55 (3) Requesting a fair hearing. A client shall request a fair hearing within 45 days after receipt of notice of a decision in a contested matter, or after a resource center or CMO has failed to respond within timeframes specified by this chapter or the department. Receipt of notice is presumed within 5 days of the date the notice was mailed. A client shall file his or her their request for a fair hearing in writing within the timeframes specified under subs. (1) and (1g) with the division of hearings and appeals in the department of administration. A hearing request shall be considered filed on the date of actual receipt by the division of hearings and appeals, or the date of the postmark, whichever is earlier. A request filed by facsimile is complete upon transmission. If the request is filed by facsimile transmission and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period. If a client asks the department, a county agency, a resource center or CMO for assistance in writing a fair hearing request, the department, resource center or CMO shall provide that assistance.
Note: A hearing request can be submitted by mail or hand−delivered to the Division of Hearings and Appeals, at 505 University Ave., Room 201 4822 Madison Yards Way, 5th Floor North, Madison, WI 53705−5400, or faxed to the Division at (608) 264−9885, or emailed to the Division at DHAMail@wisconsin.gov. The Division’s telephone number is (608) 266−3096. DHS 10.55 (4). Department concurrent review of fair hearing requests.
DHS 10.55 (4) (b) When a client an enrollee has requested a fair hearing under sub. (1) (d) to (g) (3), the department shall concurrently conduct an informal review and investigate the facts surrounding the client’s request using the process established under s. DHS 10.54 in an attempt to resolve the problem informally to identify, and, as appropriate, intervene in, fair hearing requests related to member health and safety, contract non-compliance and complex situations, if it appears to the department that informal resolution of the matter may be appropriate. DHS 10.55 (5) (a) 3. In the case of an enrollee grievance against appealing a CMO decision, the person voluntarily disenrolls from the CMO.
SECTION 41. DHS 10.56 (1) to (3) are amended to read:
DHS 10.56 Continuation of services. (1) Request for continuation of services PENDING OUTCOME OF CMO APPEAL. Prior to reducing, suspending or terminating services under the family care benefit, a CMO shall provide to the enrollee prior notification of its intent to reduce, suspend or terminate the services in accordance with s. DHS 10.52 (3). If an enrollee who has received a notice that services will be reduced, suspend or terminated files a grievance an appeal with the CMO under s. DHS 10.53 (2), or requests a department review under s. DHS 10.54 or a fair hearing under s. DHS 10.55 related to the reduction or termination of services and before the effective date of the reduction, suspension or termination, the enrollee may request that the CMO continue to provide the services pending the outcome of the grievance, department review or fair hearing appeal. (2) Requirement for continuation. Except as provided in sub. (2m), a CMO may not reduce, suspend or terminate services under dispute pending the outcome of the enrollee’s grievance appeal under s. DHS 10.53 (2), department review under s. DHS 10.54 or fair hearing under s. DHS 10.55 if a request for continued benefits was made under sub. subs. (1) or (1m). (2m) Exemption from right to continuation. If the sole issue is a federal or state law requiring an automatic change adversely affecting some or all enrollees and the enrollee does not dispute that he or she falls within the category of enrollees to be affected by the change, the enrollee does not have the right to continuation of services pending the outcome of the enrollee’s grievance appeal under s. DHS 10.53 (2), department review under s. DHS 10.54, or fair hearing under s. DHS 10.55. A CMO will not receive a monthly capitated payment for such an individual and is not required to continue services in such circumstances. (3) Liability for continuation of services. The enrollee shall be liable for the cost of services provided during the period in which services have been continued under this section if the outcome of the grievance, department review appeal or fair hearing is unfavorable to the enrollee. The CMO shall notify in writing an enrollee who requests continuation of services under this section of the potential for liability under this subsection and the time period during which the enrollee will be liable. If the department or its designee determines that the person would incur a significant and substantial financial hardship as a result of repaying the cost of the services provided, the department may waive or reduce the enrollee’s liability under this subsection.
SECTION 42. DHS 10.56 (1m) is created to read:
DHS 10.56 (1m) REQUEST FOR CONTINUATION OF SERVICES PENDING OUTCOME OF DHA FAIR HEARING. An enrollee is entitled to continuation of services pending the outcome of a fair hearing if all of the following apply:
(a) The CMO’s decision on appeal under s. DHS 10.53 (2) is to proceed with reducing, suspending, or terminating the enrollee’s service. (b) The enrollee’s services were continued pending the outcome of the CMO appeal decision.
(c) The enrollee requests a fair hearing on the CMO’s appeal decision before the effective date of the CMO’s appeal decision.
(d) The enrollee requests continuation of services before the effective date of the CMO’s appeal decision.
SECTION 43. DHS 10.62 (1) (b) is amended to read:
DHS 10.62 (1) (b) Recovery under this section from the estate of an enrollee who was not found eligible under s. 46.286 (1) (b) 2m. a., Stats., and who did not receive services that are recoverable under s. 46.27 (7g), ss. 49.496 (3) or 49.682, Stats., shall be treated as follows: SECTION 44. DHS 10.71 is repealed.
SECTION 45. DHS 10.73 (1) and (4) (a) 1. are amended to read:
DHS 10.73 (1) Purpose. This section implements ss. 50.034 (5m) to (5p) (5n) and (8), 50.035 (4m) to (4p) (4n) and (11) and 50.04 (2g) to (2i) (2h), Stats., which establish requirements for adult family homes, residential care apartment complexes, community−based residential facilities and nursing homes to provide information to prospective residents and to refer certain prospective or newly admitted residents to a resource center and establish penalties for non−compliance. DHS 10.73 (4) (a) 1. The person is under the age of 17 years and 9 6 months.
SECTION 46. DHS 73 (Title) is amended to read:
DHS 73 Title SELECTED FISCAL MANAGEMENT PROCEDURES AND STANDARDS UNDER THE COMMUNITY OPTIONS PROGRAM AND MEDICAL ASSISTANCE HOME AND COMMUNITY−BASED SERVICES WAIVER
SECTION 47. DHS 73.01 is amended to read:
DHS 73.01 Authority and purpose. This chapter is promulgated under the authority of ss. 46.27 (2) (h) 2., (7) (cj) 3. b., (11) (c) 5n. b. and (12), 46.277 (5) (d) 1n. b. and (5r), and 227.11 (2) (a), Stats., to establish certain standards and procedures related to assessments, case plans, service agreements, participant payment of service providers and verification that services have been received for county administration of the community options program (COP) under s. 46.27, Stats., and county administration of home and community−based services waivers from medical assistance requirements that the department receives from the secretary of the U.S. department of health and human services under 42 USC 1396n (c), to establish conditions of hardship under which the department may grant exceptions in individual cases to limits on spending by counties for care provided in CBRFs and to establish criteria for county agency determination of the infeasibility of in−home services as a condition for paying for services provided to a program participant residing in a CBRF. SECTION 48. DHS 73.02 is amended to read:
DHS 73.02 Applicability. This chapter applies to county departments designated under s. 46.27 (3) (b), Stats., to administer the community options program (COP), and to county departments and private non−profit agencies with which the department contracts to provide home and community−based services through a medical assistance waiver, and to vendors providing assessments, case plans or supportive home care services funded under s. 46.27 (7), Stats., or under a medical assistance waiver. SECTION 49. DHS 73.03 (4) is repealed.
SECTION 50. DHS 73.03 (5), (8m), (11), and (14) are amended to read:
DHS 73.03 (5) “County department” means a county department designated under s. 46.27 (3) (b), Stats., a county department established under s. 46.215, 46.22, 46.23, 46.272, 51.42, or 51.437, Stats., which provides home and community−based services under a medical assistance waiver or a private non−profit agency designated by the department to provide services under a medical assistance waiver. DHS 73.03 (8m) “Initially applies for services” means applies for the first time for services in addition to an assessment or care plan under COP, the COP−waiver under s. 46.27 (11), Stats., or the community integration program under s. 46.277, Stats., and has not previously received the services.
