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 are repealed.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.
DHS 10.23 (2) (e) Transitional services. A resource center that serves young adults age 17 years and 6 months or older with physical or developmental disabilities shall coordinate with school districts, boards appointed under s. 51.437, Stats., county human services departments or departments of community programs to assist young adults with physical or developmental disabilities in making the transition from children’s services to the adult long−term care system. DHS 10.23 (2) (h) Choice counseling. The resource center shall provide information and counseling to assist persons who are eligible for the family care benefit and their families or other representatives with respect to the person’s choice of whether or not to enroll in a care management organization and, if so, which available care management organization would best meet his or her their needs. To assure that persons receive choice counseling in an environment that is free from conflict of interest, resource center staff in the choice counseling session may not have a direct or indirect interest in a care management organization. Information provided under this paragraph shall include information about all of the following.
DHS 10.23 (2) (j) 2. Advocacy resources available to assist the person in resolving complaints appeals and grievances.
SECTION 20. DHS 10.23 (2) (k) is repealed.
SECTION 21. DHS 10.23 (3) (intro.), (a) 2., 2. c., 3., (6) (b) and (c), and (e) 5. e. are amended to read:
DHS 10.23 (3) Access to family care and other benefits. If it is a county agency, the resource center shall provide to members of its target population access to the benefits under pars. (a) and (b) directly or through subcontract or other arrangement with the appropriate county agency. If it is not a county agency, the resource center shall have a departmentally approved memorandum of understanding with a county agency to which it will make referrals for access to these benefits. The memorandum of understanding shall clearly define the respective responsibilities of the two organizations, and how eligibility determination for the benefits under pars. (a) and (b) will be coordinated with other resource center functions for the convenience of members of the resource center’s target population. Benefits to which the resource center shall provide access are all the following:
DHS 10.23 (3) (a) 2. A resource center shall offer a functional screening and a financial eligibility and cost−sharing screening to any individual over the age of 17 years and 9 6 months who appears to have a disability or condition requiring long−term care and who meets any of the following conditions:
DHS 10.23 (3) (a) 2. c. The person is seeking admission to a nursing home, community−based residential facility, adult family home, or residential care apartment complex, subject to the exceptions under ss. s. DHS 10.72 (4) and 10.73 (4) (a) and when the person declined referral under s. DHS 10.73 (3). DHS 10.23 (3) (a) 3. If a person accepts the offer, the resource center or the county agency shall provide the screens.
DHS 10.23 (6) (b) Community needs identification. Implement a process for identifying unmet needs of its target population in the geographic area it serves. The process shall include input from the regional long−term care advisory committee, members of the target populations and their representatives, and local government and service agencies including the care management organization, if any. The process shall include a systematic review of the needs of populations residing in public and private long−term care facilities, populations in need of public or private long-term care services, members of minority groups and people in rural areas. A resource center shall target its outreach, education, prevention and service development efforts based on the results of the needs identification process.
DHS 10.23 (6) (c) Grievance and appeal processes. Implement a process for reviewing and resolving client complaints and resolving client grievances as required under s. DHS 10.53 (1). DHS 10.23 (6) (e) 5. e. Effective processes for considering reviewing and acting on complaints and resolving appeals and grievances of applicants and other persons who use resource center services.
SECTION 22. DHS 10.31 (4) (a) and (b), (5), and (6) (a) and (b) are amended to read:
DHS 10.31 (4) (a) Making application. Any person in the target population served by resource centers may apply for a family care benefit on a form prescribed by the department and available from a resource center. Application for the family care benefit requires that a person apply for financial, non-financial and functional eligibility. Application Financial and non-financial eligibility determination shall be made to by the income maintenance agency serving the county, or tribe or family care district in which the person resides. Application may not be made to an agency in a county or tribe in which the family care benefit is not available. Functional eligibility determination shall be made by the resource center serving the county or tribe in which the person resides.
DHS 10.31 (4) (b) Signing the financial and non-financial eligibility application. The applicant or the applicant’s legal guardian, authorized representative or, where the applicant is incapacitated, someone acting responsibly for the applicant, shall sign each application form in the presence of a representative of the agency. The signatures of 2 witnesses are required when the applicant signs the application with a mark.
DHS 10.31 (5) VERIFICATION OF INFORMATION. An A financial and non-financial eligibility application for the family care benefit shall be denied when the applicant or enrollee is able to produce required verifications but refuses or fails to do so. If the applicant or enrollee is not able to produce verifications or requires assistance to do so, the agency taking the application may not deny assistance but shall proceed immediately to assist the person to secure necessary verifications.
DHS 10.31 (6) (a) Decision date for financial and non-financial eligibility. Except as provided in par. (b), as soon as practicable, but not later than 30 days from the date the agency receives an a financial and non-financial eligibility application that includes at least the applicant’s name, address, unless the applicant is homeless, and signature, the agency shall determine the applicant’s financial and non-financial eligibility and cost sharing requirements for the family care benefit, using a functional screening and a financial eligibility and cost−sharing screening prescribed by the department. If the applicant is the spouse of a family care spouse member, the agency shall notify both spouses in accordance with the requirements of s. 49.455 (7), Stats. DHS 10.31 (6) (b) Notice. The agency shall notify the applicant in writing of its determination. If a delay in processing the financial and non-financial eligibility application or determining functional eligibility occurs because of a delay in securing necessary information, the agency shall notify the applicant in writing that there is a delay in processing the application. Communications with the applicant, either orally or in writing, in the attempt to obtain the missing information shall serve as notice of the delay. If the delay is not resolved within 30 days following this notice to the applicant of the missing information, the agency shall notify the applicant in writing of the delay in completing the determination, specify the reason for the delay, and inform the applicant of his or her their right to appeal the delay by requesting a fair hearing under s. DHS 10.55. SECTION 23. DHS 10.31 (6) (am) is created to read:
DHS 10.31 (6) (am) Decision date for functional eligibility. Except as provided in par. (b), as soon as practicable, but not later than 30 days from the date the resource center receives verbal acceptance from the applicant to proceed with the functional screen, the resource center will determine the applicant’s functional eligibility for the family care benefit.
SECTION 24. DHS 10.33 (3) is repealed.
SECTION 25. DHS 10.41 (2) is amended to read:
DHS 10.41 (2) SERVICES. Services provided under the family care benefit shall be determined through individual assessment of enrollee needs and values and detailed in an individual service plan unique to each enrollee. As appropriate to its target population and as specified in the department’s contract, each CMO shall have available at least the services and support items covered under the home and community−based waivers under 42 USC 1396n (c) and ss. 46.275, 46.277 and 46.278, Stats., the long−term support community options program under s. 46.27, Stats., and specified services and support items under the state’s plan for medical assistance. In addition, a CMO may provide other services that substitute for or augment the specified services if these services are cost−effective and meet the needs of enrollees as identified through the individual assessment and service plan SECTION 26. DHS 10.42 (3) (a) and (6) (b) are repealed.
SECTION 27. DHS 10.52 (1), (3) (intro.), (3) (a) 2., and (b) (intro.) and 1. to 9. are amended to read:
DHS 10.52 (1) Notification of general client rights and responsibilities. Each resource center, county agency and CMO shall provide clients with written notification of their rights and responsibilities in accordance with timelines and other requirements established in its contract with the department in every instance in which:
DHS 10.52 (3) Notification of intended action adverse benefit determination. Clients shall be given written notice of any intended adverse action benefit determination at least 10 days prior to the date of the intended action adverse benefit determination.
DHS 10.52 (3) (a) 2. By the CMO in every instance in which the CMO intends to reduce or terminate a service or deny payment for a service the CMO makes an adverse benefit determination under s. DHS 10.13 (1) (b).
