WISCONSIN DEPARTMENT OF HEALTH SERVICES
PROPOSED ORDER TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services (the “department”) proposes an order to repeal ss. DHS 10.13 (1) (b) 4. and 5., (12), (40m), 10.21 (3) (b), 10.21 (5), 10.23 (2) (k), 10.33 (3), 10.42 (3) (a), (6) (b), 10.52 (4), 10.55 (1) (d) to (g), 10.71, 73.03 (4), 73.05, 73.07 (2), 73.10 (3), 105.17 (1c) (c); consolidate, renumber and amend s. DHS 10.21 (3) (intro.) and (a); amend ss. DHS 10.11 (5), 10.13 (1) (intro.), (b) 1., 2., and 7.. (3m), (14), (16), (20), (28), (46) (a) to (c), 10.21 (4), 10.22 (3) and (4), 10.23 (2) (d) 3., (e), (h) and (j) 2., 10.23 (3) (intro.), (a) 2. (intro.), 2. c. 3., (6) (b) and (c), (e) 5. e., 10.31 (4) (a) and (b), (5), (6) (a) and (b), 10.41 (2), 10.52 (1), (3) (intro.) and (a) 2., (b) (intro.) and 1. to 9., 10.44 (6) (c) 14. ,10.53 (title), (1) (a) to (c), (2) (title), (a) to (c), 10.54 (1) (title), (intro.), (a), (b), (2) (title), (3) (title) and (3), 10.55 (1) (title), (intro.), (1m), (2) (title), (2), (3) and (Note), (4) (intro.), (b), (5) (a) 3., 10.56 (1) to (3), 10.62 (1) (b), 10.71 (1), (4) (a) 1., 73 (title), 73.01, 73.02, 73.03 (5), (8m), (11) and (14), 73.04 (1), 73.10 (1) and (2), 73.11 (1), 104.01 (5) (a) 1.; and create ss. DHS 10.13 (1) (b) 8. to 10., (c) (intro), 1. and 2., (8m), (14m), (36m), 10.31 (6) (am), 10.52 (3) (b) 1m., 10.53 (1) (c) 1. to 4., (d), (1m) (title), (a) and (b), (2) (bg) and (br), (c) 1. To 4., (d), (e) and (f), 10.54 (2e) (intro.), (a) and (b), (2j), (2o), and (2v), 10.55 (1) (L) to (p), (1g) (title), (a) to (c), (d) (intro.), 1. and 2., (e) to (h), (i) (intro.) and 1. to 3., 10.56 (1m)(a) to (d). RULE SUMMARY
Statute interpreted
Not applicable
Statutory authority
Section 46.03 (25), Stats.: Uniform regulation and licensing. The department shall promulgate rules to establish licensing and program compliance standards for care and residential facilities, hospitals, hotels, restaurants and the vending of food and beverages after due consideration of the relationship of a licensing code to other related licensing codes, the need for uniform administration, the need to maximize the use of federal funds and the need to encourage the development and operation of needed facilities statewide. In establishing licensing standards designed to ensure that the facility qualifies for federal financial participation, the department shall establish federal regulations as the base requirement. The department may promulgate such additional health and safety standards as it determines to be in the public interest.
Section 46.288 (3), Stats.: Procedures and standards for procedures for s. 46.287 (2), including time frames for action by a resource center or a care management organization on a contested matter.
Section 49.45 (10), Stats.: Rule−making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. The department shall promulgate a rule defining the term “part−time intermittent care” for the purpose of s. 49.46. Explanation of agency authority
The department has explicit authority to promulgate the proposed rule. Section 49.45 (10), Stats., authorizes the department to “promulgate such rules as are consistent with its duties in administering medical assistance.” Section 46.03 (25), Stats., authorizes the department to “promulgate rules to establish licensing and program compliance standards.” Section 46.288 (3), Stats., authorizes the department to promulgate rules to establish procedures and standards for procedures for fair hearings. Related statute or rule
The following statues and rules are directly related to bringing the department’s rules into compliance with 2019 Wis. Act 9:
42 USC 1396a(a)(3)
42 USC 1396u–2(b)(4)
42 CFR 431 Subpart E
42 CFR 438 Subpart F
Section 46.27, 2017 Stats.
Section 46.281 (1n) (d) and (3), Stats.
Section 46.2825, Stats.
Section 46.283 (3) (f), (3) (e), (3) (k), (4) (f), (4) (g), (4) (e), (6) (b) 7., and (6) (b) 9., Stats.
Section 46.287 (2) (a) and (b), Stats.
Section 46.288 (2), Stats.
Section 49.45 (5) (a) and (ag), Stats.
2019 Act 9 section 448
2019 Act 9 section 477
2019 Act 9 section 478
Sections DHS 10.11, 10.13, 10.21, 10.23, 10.31, 10.42, 10.52, 10.53, 10.54, 10.55, and 10.56
Sections DHS 73.01, 73.02, 73.03, 73.05, and 73.10
Section DHS 90.06
Section DHS 104.01
Section DHS 105.17 Plain language analysis
The intent of the proposed rules is to bring the department’s rules into compliance with 2019 Wis. Act 9 (the “Act”) which made changes to ss. 46.27, 46.281 (1n) (d), 46.283 (3) (f), (4) (e), (4) (f), (6) (b) 7., and (6) (b) 9., 46.2825, 46.287 (2) (a) 1. and (2) (a) 1m., 46.287 (2) (b), 46.288 (2), and 49.45 (5) (a), (5) (ag) and (5) (ar), Stats., require the department to do all of the following to bring associated rules into compliance:
(1) Modify the availability and timing of the fair hearing process for certain community-based Medical Assistance programs and services.
(2) Define managed care organization decisions, omissions, or actions.
(3) Require members to first file grievances with managed care organizations, and limit members’ ability to contest managed care organizations’ grievance decisions with the department.
(4) Remove the Community Options Program as a Medical Assistance program.
(5) Eliminate regional long-term care advisory committees.
(6) Requiring each aging and disability resource center governing board to review the number and types of grievances and appeals related to the aging and disability resource center.
(7) Modify aging and disability resource center provisions to reflect availability statewide. Summary of, and comparison with, existing or proposed federal regulations
42 USC 1396a(a)(3) and 1396u–2(b)(4) require the Medical Assistance program to establish and ensure availability of fair hearing and managed care organization internal grievance procedures. 42 CFR 431 Subpart E sets forth Medical Assistance program fair hearing requirements for non-managed care programs and services. 42 CFR 431.221(d) requires the department to “allow the applicant or beneficiary a reasonable time, not to exceed 90 days from the date that notice of action is mailed, to request a hearings.” 42 CFR 438 Subpart F sets forth Medical Assistance grievance and appeal requirements for managed care programs. 42 CFR 438.402(c)(2)(ii) requires the Medical Assistance managed care program to ensure that “[f]ollowing receipt of a notification of an adverse benefit determination by an MCO, PIHP, or PAHP, an enrollee has 60 calendar days from the date on the adverse benefit determination notice in which to file a request for an appeal to the managed care plan.” 42 CFR 438.408(f)(2) requires that an “enrollee must have no less than 90 calendar days and no more than 120 calendar days from the date of the MCO's, PIHP's, or PAHP's notice of resolution to request a State fair hearing.” 42 CFR 438.400(b) defines the MCO, PIHP, and PAHP acts, and failures to act, that are adverse benefit determinations. 42 CFR §438.400(b) defines an appeal as “a review by an MCO, PIHP, or PAHP of an adverse benefit determination.” 42 CFR §438.400(b) defines grievance as “an expression of dissatisfaction about any matter other than an adverse benefit determination.” 42 CFR 438.402(c)(1)(i) states that an “enrollee may request a State fair hearing after receiving notice under §438.408 that the adverse benefit determination is upheld.”
Federal law does not establish specific requirements for provision and activities of the Community Options Program, regional long-term care advisory committees, or aging and disability resource centers. Comparison with rules in adjacent states
Illinois:
Illinois statute generally requires grievance proceedings and fair hearings to be available to Medicaid applicants and enrollees under 305 ILCS 5/5-30.03(d). Illinois policy establishes that grievance proceedings must be requested within 60 calendar days and fair hearings must be requested within 30 calendar days. Illinois policy also establishes that each managed care organization establishes its own grievance and appeal process which must comply with federal law.
Illinois does not have a group that is comparable to the Wisconsin regional long-term care advisory committees.
Iowa:
Iowa statute requires fair hearings to be available to Medicaid applicants under Iowa Code § 249A.4 (11). Grievance proceedings must be requested within 60 calendar days under 42 CFR 438.402(c)(2)(ii). Iowa administrative code requires grievance proceedings of managed care organization adverse benefit determinations to be requested within the time specified by federal regulation under Iowa Admin Code § 441-73.12(249A) par. 73.12(1)e. Iowa administrative code requires fair hearings to be requested within 90 days of an adverse benefit determination for fee-for-services coverage and within 120 days of exhausting the managed care organization appeal process under Iowa Admin Code § 441-7.4(17A) par. 7.3(3).
Iowa does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Michigan:
Michigan administrative code requires internal conferences and appeals for administrative hearings be available when adverse benefit determinations are made under Mich Admin Code, R 400.3404 Rule 4. Internal conferences must be requested within 30 days and hearings must be requested within 90 days of the date specified in the notice of adverse action under Mich. Admin Code, R 400.3404 Rule 4 and 42 CFR 431.221(d).
Michigan does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Minnesota:
Minnesota statute requires grievance proceedings and fair hearings to be available to Medicaid applicants under MN s. 256.045 subd. 3 (i). Grievance proceedings must be offered by managed care organizations under MN s. 256L.12 subd. 7. (4). Minnesota policy establishes that fair hearings must be requested within 120 days.
Minnesota does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Summary of factual data and analytical methodologies
The department formed an advisory committee that included representatives of the Aging and Disability Resource Center of Southwest Wisconsin, Aging & Disability Professionals Association of Wisconsin, Disability Rights Wisconsin, Greater Wisconsin Agency on Aging and Resources, Legal Action of Wisconsin, and MetaStar, Inc. Advisory committee members were provided a copy of draft language of the proposed rules and provided comments at an advisory committee meeting held on June 30, 2021.
Analysis and supporting documents used to determine effect on small business
The department published a solicitation in the Administrative Register from ___ to ___, in which it requested comments on the economic impact of the proposed rule.
Effect on small business
Based on the economic impact public commenting period and the analysis provided in fiscal estimate and economic impact analysis, the proposed rule is anticipated to have no economic impact on small businesses.
Agency contact person
Statement on quality of agency data
The data used by the department to prepare these proposed rules and analysis complies with s. 227.14 (2m), Stats.
Place where comments are to be submitted and deadline for submission
RULE TEXT
SECTION 1. DHS 10.11 (5) is amended to read:
DHS 10.11 (5) Provides for the protection of applicants for the family care benefit and enrollees in care management organizations through complaint appeal, grievance and fair hearing procedures.
SECTION 2. DHS 10.13 (1) (intro.), (b) 1. and 2. are amended to read:
DHS 10.13 (1) “Action Adverse Benefit Determination" means any of the following:
DHS 10.13 (1) (b) 1. The denial or limited authorization of a requested service, including the determinations based on type or level of service, requirements or medical necessity, appropriateness, setting, or effectiveness of a covered benefit.
DHS 10.13 (1) (b) 2. The reduction, suspension, or termination of a previously authorized service, unless the service was only authorized for a limited amount or duration and that amount or duration has been completed.
SECTION 3. DHS 10.13 (1) (b) 4. and 5. are repealed.
SECTION 4. DHS 10.13 (1) (b) 7. is amended to read:
DHS 10.13 (1) (b) 7. Termination of family care benefit or involuntary Involuntary disenrollment from a CMO.
SECTION 5. DHS 10.13 (1) (b) 8. to 10. are created to read:
DHS 10.13 (1) (b) 8. The denial of functional eligibility under s. 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. 9. The denial of an enrollee’s request to dispute a financial liability, including copayments, premiums, deductibles, coinsurance, other cost sharing, and other member financial liabilities.
10. The denial of an enrollee, who is a resident of a rural area with only one care management organization, to obtain services outside of the care management organization’s network of contracted providers.
SECTION 6. DHS 10.13 (1) (c) (intro.) 1. and 2. are created to read:
DHS 10.13 (1) (c) Any of the following failures on the part of a care management organization:
1. The failure to provide services and support items included in the individualized service plan in a timely manner, as defined in the department’s contract with care management organizations.
2. The failure to act in a timely manner as specified in subchapter V of this chapter to resolve grievances or appeals.
SECTION 7. DHS 10.13 (3m) is amended to read:
DHS 10.13 (3m) “Appeal" means a request for review of an action adverse benefit determination.
SECTION 8. DHS 10.13 (8m) is created to read:
DHS 10.13 (8m) “Choice counseling” means information and services designed to assist eligible applicants in making enrollment decisions.
SECTION 9. DHS 10.13 (12) is repealed.
SECTION 10. DHS 10.13 (14) is amended to read:
DHS 10.13 (14) “County agency” means a county department of aging, multicounty consortium, social services or human services, an aging and disability resource center, a family care district or a tribal agency, that has been designated by the department to determine financial eligibility and cost sharing requirements for the family care benefit.
SECTION 11. DHS 10.13 (14m) and (36m) is created to read:
DHS 10.13 (14m) “Day” means calendar day, unless otherwise indicated.
DHS 10.13 (36m) “Multicounty consortium” means a group of counties specified in s. 49.78 (1) (br), Stats. SECTION 12. DHS 10.13 (16), (20), (28), and (46) (a) to (c) are amended to read:
DHS 10.13 (16) “Developmental disability” means a disability attributable to brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, intellectual disability, or another neurological condition closely related to intellectual disability or requiring treatment similar to that required for intellectual disability, that has continued or can be expected to continue indefinitely and constitutes a substantial handicap to the afflicted individual. “Developmental disability" does not include senility that is primarily caused by the process of aging or the infirmities of aging has the meaning given in s. 51.01 (5) (a), Stats. DHS 10.13 (20) “Fair hearing” means a de novo proceeding under ch. HA 3 before an impartial administrative law judge in which the petitioner or the petitioner’s representative presents the reasons why an action administrative action under HA 3.03 or inaction by the department, a county agency, a resource center or a CMO in the petitioner’s case should be corrected. DHS 10.13 (28) “Grievance" means an expression of dissatisfaction about any matter that is not an action adverse benefit determination.
DHS 10.13 (46) (a) Older persons Adults age 60 and older.
(b) Persons Adults with a physical disability.
(c) Persons Adults with a developmental disability.
SECTION 13. DHS 10.13 (40m) is repealed.
SECTION 14 DHS 10.21 (3) (intro.) and (a) are consolidated, renumbered DHS 10.21 (3), and amended to read:
DHS 10.21 (3) The department shall use standard contract provisions for contracting with resource centers, except as provided in this subsection. The provisions of the standard contract shall comply with all applicable state and federal laws and may be modified only in accordance with those laws and after consideration of the advice of all of the following:(a) The the secretary’s council on long−term care.
SECTION 15. DHS 10.21 (3) (b) is repealed.
SECTION 16. DHS 10.21 (4) is amended to read:
DHS 10.21 (4) The department shall annually provide to the members of the council on long−term care copies of the standard resource center contract the department proposes to use in the next contract period and seek the advice of the council regarding the contract’s provisions. The department shall consider any recommendations of the council and may make revisions, as appropriate, based on those recommendations. If the department proposes to modify the terms of the standard contract, including adding or deleting provisions, in contracting with one or more organizations, the department shall seek the advice of the council and consider any recommendations of the council before making the modifications.
SECTION 17. DHS 10.21 (5) is repealed.
SECTION 18. DHS 10.22 (3) and (4) are amended to read:
DHS 10.22 (3) Governing board. A resource center shall have a governing board that reflects the ethnic and economic diversity of the geographic area served by the resource center. At least one−fourth of the members of the governing board shall be older persons or persons with physical or developmental disabilities or their family members, guardians or other advocates, reflective of the resource center’s target population. No member of the governing board may have any direct or indirect financial interest in a care management organization.
(4) Independence from care management organization. To assure that persons receive long−term care counseling and eligibility determination services from the resource center in an environment that is free from conflict of interest, a resource center shall meet state and federal requirements for organizational independence from any care management organization.
SECTION 19. DHS 10.23 (2) (d) 3., (e), (h), and (j) 2. are amended to read:
DHS 10.23 (2) (d) 3. When a benefit specialist represents a client in a matter in which a decision or action administrative action under HA 3.03 of the resource center is at issue, the resource center may not attempt to influence the benefit specialist’s representation of the client.
