DEPARTMENT OF HEALTH SERVICES Office of Legal Counsel | STATE OF WISCONSIN |
STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES |
CHAPTER: | DHS 122 |
RELATING TO: | Redistribution of closed long-term care facility beds |
RULE TYPE: |
SCOPE TYPE: |
FINDING OF EMERGENCY: | Preservation of the public peace, health, safety, and welfare necessitates adoption of an emergency rule. Wisconsin statutes limit the total number of nursing home beds available for licensure, and s. 150.40, Stats., requires that the Department redistribute nursing home beds that become available as a result of nursing home closure when (1) the number of nursing home beds available in the county is less than 80% of the statewide average, and (2) the total occupancy level for other nursing homes in the county meet or exceed the statewide average nursing home occupancy rate. Administrative rules that interpret s. 150.40, Stats., based on the broader grant of authority under s. 150.03, Stats., provide a more detailed process for applying to redistribute closed nursing home beds. See s. DHS 122.05 (1) (c). Those rules, which have not been updated in over 30 years, specifically limit closed bed applicants to those in which the countywide occupancy rate is greater than 94%, and only one county in Wisconsin currently meets that threshold. Bed closure without redistribution adversely impacts Wisconsin residents. Since January 2020, 36 nursing homes have closed in Wisconsin, resulting in 1,696 decommissioned beds, but the restrictive language in s. DHS 122.05 limits the Department’s ability to redistribute those beds. More than 10 counties in Wisconsin have fewer than 20 nursing home beds available per 1,000 residents age 65 or older, and many of those counties are in rural parts of the state where there are few alternatives to nursing home care. The overall decrease in available beds has resulted in lengthened hospital stays or abrupt discharges due to the lack of available post-acute care. To ensure access to these beds—which are a critical component of the provision of long-term care services in Wisconsin—the restrictive application provisions in administrative code must be revised for consistency with the statutory process for redistribution of closed beds. The Department estimates that more than 800 additional beds could close over the next 24 months, and thus complying with all the rule promulgation procedures under ch. 227, subch. II, could further exacerbate this pressing issue. Emergency rules, followed promptly by corresponding permanent rules, are therefore necessary under s. 227.24 (1), Stats. |
SUMMARY |
Description of rule objective/s The Wisconsin Department of Health Services (hereinafter “the Department”) proposes to revise provisions in ch. DHS 122 specific to redistribution of nursing home beds which are obsolete and in conflict with statutory procedures for redistribution of closed nursing home beds in s. 150.40, Stats. Chapter DHS 122 was first created in 1985,[2] and provisions specific to redistribution of nursing home beds in s. DHS 122.05 have not been updated since 1987.[3] Statute currently requires that the Department redistribute closed nursing home beds within the county when certain criteria are met, but the obsolete provisions in ch. DHS 122 limit who may apply for redistribution in a qualifying county to a standard that only one Wisconsin county can currently meet. |
Existing policies relevant to the rule The number of nursing home beds available for licensure in Wisconsin is statutorily capped, and the Department “may not approve or license any additional nursing home beds if the addition of those beds would exceed [that] limit[ ].” Section 150.31 (1) and (7), Stats. If any beds are available under the cap, statutes provide a process for an entity to apply for available beds, and administrative rules provide a detailed formula for distributing available beds within health planning areas in the state identified by rule. See s. 150.33, Stats.; s. DHS 122.05 (1) (a). Section 150.40, Stats., provides criteria for the Department to redistribute “closed” nursing home beds, which are beds that are within the statutory cap and “made available as a result of nursing home closure within that county.” It requires the Department to redistribute any closing nursing home beds within the county if both of the following apply at the time of closure: (1) the number of nursing home beds for each 1,000 persons age 65 or older is less than 80 percent of the statewide average of nursing home beds for each 1,000 persons age 65 or older; and (2) the total occupancy level for other nursing homes in the county is equal to or more than the statewide average nursing home occupancy rate. The method for calculating the statewide average for nursing home beds is calculated in accordance with s. DHS 122.05 (1) (c) 3. The statute does not speak to who may apply for redistribution of a closed bed when the criteria in s. 150.40 (1) (a) and (b), Stats., are satisfied. Section DHS 122.05 (1) (c), however, provides that “applications to replace or redistribute beds may be submitted only from counties which are eligible to compete for new beds under [s. DHS 122.05 (1) (b)].” Subsection (1) (b) 2. b. expressly limits those who can compete for new beds to those located in counties where “[t]he countywide occupancy rate . . . is greater than 94%.” Current data indicates that only one county in Wisconsin exceeds the 94% criteria provided in s. DHS 122.05 (1) (b) 2. b. Accordingly, the language of the rule precludes the Department from redistributing closed beds under s. 150.40, Stats. |
Policies proposed to be included in the rule The Department proposes to revise s. DHS 122.05 and other related provisions to remove restrictive applicant requirements for redistribution of closed beds under s. 150.40, Stats. Doing so will allow the Department to effectuate s. 150.40, Stats. by permitting entities who were previously barred under the language of the rule to apply to have closed nursing home beds redistributed to their facilities. |
Analysis of policy alternative There are no alternatives to promulgating the proposed rule. Statute requires that the Department redistribute closed nursing home beds, but the Department’s rules currently prohibit entities from applying for redistribution. |
Statutory authority for the rule |
Explanation of authority to promulgate the proposed rule The Department is authorized to promulgate ch. DHS 122 based upon explicit statutory language in s. 150.03, Stats. Rules in Chapter DHS 122 interpret subchs. I and II of Chapter 150, ss. 150.01 to 150.46, Stats. |
Statutes that authorize the promulgation of the proposed rule Section 150.03, Stats., reads: Rule making; forms. The department shall adopt rules and set standards to administer subchs. I and II. The department shall create the forms to be used and timetables to be followed under subchs. I and II in applying for an approval and in applying for the renewal or modification of an approval. The department shall issue a statement of the applicable rules and procedures to be followed in reviewing an application under subchs. I and II with each application form. Section 150.31 (5), (6), and (8), Stats., reads: (5) The department may decrease the statewide bed limits specified in sub. (1) to account for any reduction of available beds not included under sub.(3)or(4), in accordance with criteria promulgated by rule. (6) The department may adjust the statewide bed limits specified in sub.(1)to account for the partial or total conversion of nursing homes to facilities primarily serving the developmentally disabled or of facilities primarily serving the developmentally disabled to nursing homes. The department may promulgate rules limiting the number of nursing home beds converted under this subsection, allocating the beds so converted, and establishing standards for the limitation and allocation. (8) The department may allocate or distribute nursing home beds in a manner, developed by rule, that is consistent with the criteria specified in sub.(1) (a) to (f) and s.150.39. Section 150.39 (intro), Stats., reads: Review criteria and standards. The department shall use the following criteria in reviewing each application under this subchapter, plus any additional criteria it develops by rule. The department shall consider cost containment as its first priority in applying these criteria, and shall consider the comments of affected parties. The department may not approve any project under this subchapter unless the applicant demonstrates: |
Statutes or rules that will affect the proposed rule or be affected by it |
Chapter DHS 83, relating to community-based residential facilities (“CBRFs”). Chapter DHS 131, relating to hospices. Chapter DHS 132, relating to nursing homes. Chapter DHS 134, relating to facilities serving people with developmental disabilities. |
Estimates of the amount of time that state employees will spend to develop the rule and other necessary resources The Department estimates that state employees will spend approximately 540 hours developing the rule. |
Description of all of the entities that may be affected by the rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the rule Chapter DHS 122 establishes a statewide bed limit that applies to long-term care facilities, which are defined in s. DHS 122.03 (16) as “a facility for the developmentally disabled or other nursing home.” The proposed rules may therefore affect nursing homes licensed under ch. DHS 132, and facilities serving individuals with developmental disabilities licensed under ch. DHS 134. The definition of “nursing home” in s. 50.01 (3), Stats., includes any place “where 5 or more persons who are not related to the operator or administrator reside, receive care or treatment and, because of their mental or physical condition, require access to 24-hour nursing services, including limited nursing care, intermediate care and skilled nursing services.” The definition of “CBRF” in s. 50.01 (1g), Stats., aligns with the statutory definition of a “nursing home,” and the proposed rules may affect CBRFs under ch. DHS 83. The statutory definition of “nursing home” excludes “[a] hospice . . . that directly provides inpatient care.” The proposed rules may therefore affect certain hospices licensed under ch. DHS 131. |
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule There are no proposed federal regulations intended to address the activities to be regulated by the proposed rules. |
Anticipated economic impact, locally or statewide The proposed rules may have a moderate economic impact. |
Agency contacts Mark R. Thompson – Attorney, DHS Office of Legal Counsel (608) 266-1279 |
Jessica Holland – Executive Policy Advisor, Division of Quality Assurance 608-266-3864 |
