Wisconsin Legislature: DHS 105.17(1)(b)

Alert! This chapter may be affected by an emergency rule:

EmR2421

3. To be fully informed of one’s own health condition, unless medically contraindicated, and to be afforded the opportunity to participate in the planning of services, including referral to a health care institution or other agency;

4. To refuse treatment to the extent permitted by law and to be informed of the medical consequences of that refusal;

5. To confidential treatment of personal and medical records and to approve or refuse their release to any individual, except in the case of transfer to a health care facility;

6. To be taught, and have the family or other persons living with the recipient taught, the treatment required, so that the recipient can, to the extent possible, help himself or herself, and the family or other party designated by the recipient can understand and help the recipient;

7. To have one’s property treated with respect; and

8. To complain about care that was provided or not provided, and to seek resolution of the complaint without fear of recrimination.

(c) Universal precautions. A nurse shall have the necessary orientation, education and training in epidemiology, modes of transmission and prevention of HIV and other blood-borne or body fluid-borne infections and shall follow universal blood and body-fluid precautions for each recipient for whom services are provided. The nurse shall employ protective measures recommended by the federal centers for disease control (CDC), including those pertaining to medical equipment and supplies, to minimize the risk of infection from HIV and other blood-borne pathogens.

Note: A copy of the CDC recommended universal precautions may be obtained from the Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701.

(d) Medical record. The nurse shall maintain a medical record for each recipient. The record shall document the nature and scope of all services provided and shall be systematically organized and readily accessible to authorized department personnel. The medical record shall document the recipient’s condition, problems, progress and all services rendered, and shall include:

1. Recipient identification information;

2. Appropriate hospital information, including discharge information, diagnosis, current patient status and post-discharge plan of care;

3. Recipient admission evaluation and assessment;

4. All medical orders, including the physician’s written plan of care and all interim physician’s orders;

5. A consolidated list of medications, including start and stop dates, dosage, route of administration and frequency. This list shall be reviewed and updated for each nursing visit, if necessary;

6. Progress notes posted as frequently as necessary to clearly and accurately document the recipient’s status and services provided. In this paragraph, “progress note” means a written notation, dated and signed by a member of the health team providing covered services, that summarizes facts about care furnished and the recipient’s response during a given period of time;

7. Clinical notes written the day service is provided and incorporated into the clinical record within 7 days after the visit or recipient contact. In this paragraph, “clinical note” means a notation of a contact with a recipient that is written and dated by a member of the home health team providing covered services, and that describes signs and symptoms, treatment and drugs administered and the patient’s reaction, and any changes in physical or emotional condition;

8. Written summaries of the recipient’s care provided by the nurse to the physician at least every 62 days; and

9. Written authorizations from the recipient or the recipient’s guardian when it is necessary for the nurse to procure medical supplies or equipment needed by the recipient, unless the recipient’s care is being provided by an MA-certified home health agency.

(e) Back-up and emergency procedures.

1. The recipient shall be informed of the identity of the agency-assigned alternate nurse before the alternate nurse provides services.

2. The nurse shall document a plan for recipient-specific emergency procedures in the event a life-threatening situation or fire occurs or there are severe weather warnings. This plan shall be made available to the recipient and all caregivers prior to initiation of these procedures.

3. The nurse shall take appropriate action and immediately notify the recipient’s physician, guardian, if any, and any other responsible person designated in writing by the patient or guardian of any significant accident, injury or adverse change in the recipient’s condition.

(f) Discharge of the recipient. A recipient shall be discharged from services provided by the nurse upon the recipient’s request, upon the decision of the recipient’s physician, or if the nurse documents that continuing to provide services to the recipient presents a direct threat to the nurse’s health or safety and further documents the refusal of the attending physician to authorized discharge of the recipient with full knowledge and understanding of the threat to the nurse. The nurse shall recommend discharge to the physician and recipient if the recipient does not require services or requires services beyond the nurse’s capability. The nurse provider shall issue a notification of discharge to the recipient or guardian, if possible at least 2 calendar weeks prior to cessation of skilled nursing services, and shall, in all circumstances, provide assistance in arranging for the continuity of all medically necessary care prior to discharge.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; am. (intro.), (1) and (2), r. and recr. (3), cr. (4) and (5), Register, April, 1988, No. 388, eff. 7-1-88; emerg. r. and recr. (1) and (2), cr. (6), eff. 7-1-92; r. and recr. (1) and (2), cr. (6) to (10), Register, February, 1993, No. 446, eff. 3-1-93; correction in (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; corrections in (intro.), (2) (a), (c), (6) (a) (intro.), 2., (7) and (9) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 20-039: am. (6) (a) (intro.) Register October 2021 No. 790, eff. 11-1-21; EmR2306: emerg. cr. (1m), eff. 5-1-23; CR 23-045: cr. (1m) Register January 2024 No. 817, eff. 2-1-24.

DHS 105.17 Personal care providers.

(1) Definitions. In this section:

(a) “Client” means an individual who receives personal care services from an entity certified or required to be certified under this section, irrespective of whether that individual is a medicaid recipient.

(ag) “Delegated act” means an act that is delegated to an RN or L.P.N. by a physician, podiatrist, dentist or optometrist.

(am) “Freestanding personal care agency” means an entity described in s. 49.45 (42) (d) 3. e., Stats.

(b) “Legal representative” means a person who is any of the following:

1. A guardian as defined under s. 54.01 (10), Stats.

2. A person appointed as a health care agent under an activated power of attorney for health care under ch. 155, Stats.

3. A person appointed as an agent under a durable power of attorney under s. 243.07, 1989 Stats., executed on or before April 28, 1990.

4. A parent of a minor child.

(c) “Principal” means an administrator, a person with management responsibility for the applicant, an officer or person owning directly or indirectly 5% or more of the shares or other evidences of ownership of a corporate applicant, a partner in a partnership which is an applicant, or the owner of a sole proprietorship which is an applicant.

(1c) Requirements. For MA certification, a personal care provider shall be one of the following types of entities and shall meet applicable certification requirements:

(a) A home health agency licensed under s. 50.49, Stats., and ch. DHS 133.

(b) A county department established under s. 46.215, 46.22 or 46.23, Stats.

(d) An independent living center as defined in s. 46.96 (1) (ah), Stats.

(e) A federally recognized American Indian tribe or band in Wisconsin.

(f) A freestanding personal care agency.

(1e) Contracting, planning and coordination; fit and qualified. A personal care provider shall do all of the following:

(a) Possess the capacity to enter into a legally binding contract.

(b) Present a proposal to the department to provide personal care services that does all of the following:

1. Documents cost-effective provision of services.

2. Documents a quality assurance mechanism and quality assurance activities.

3. Demonstrates that employees possess knowledge of and training and experience with special needs, including independent living needs, of the client group or groups receiving services.

(c) Provide a written plan of operation describing the entire process from referral through delivery of services and follow-up.

(d) Cooperate with other health and social service agencies in the area and with interested community referral groups to avoid duplication of services and to provide coordination of personal care services to clients.

(e) Be fit and qualified. All of the following factors are relevant to a determination by the department whether the applicant is fit and qualified for purposes of this paragraph:

1. Any adverse action against the applicant or any principal by a licensing agency of any state that resulted in denial, suspension, injunction, or revocation of a license to operate a human services or health care agency or facility.

2. Any adverse action against the applicant or any principal initiated by a state or federal agency based on non-compliance that resulted in civil money penalties, termination of a provider agreement, suspension of payments, or the appointment of temporary management of a facility or agency.

3. Any conviction of the applicant or any principal for a crime involving neglect or abuse of patients or of the elderly or involving assaultive behavior or wanton disregard for the health or safety of others, or any act of abuse under s. 940.285 or 940.295, Stats., or similar law in another jurisdiction.

4. Any conviction of the applicant or any principal for a crime related to the delivery of personal care or other health care-related services or items, or for providing personal care or other health care-related services without a license or other form of permission required by law.

5. Any conviction of the applicant or any principal for a crime involving a controlled substance under ch. 961, Stats., or similar law in another jurisdiction.

6. Any conviction of the applicant or any principal for a crime involving a sexual offense.

7. Any prior financial failure of the applicant or any principal that resulted in bankruptcy or in the closing of a human services or health care agency or facility or the relocation or discharge of such an agency’s or facility’s patients.

8. Any unsatisfied judgment against the applicant or any principal or any debts that are at least 90 days past due.

(f) Adopt written policies, procedures and documents that outline agency operations.

(g) Adopt a statement detailing the services to be provided.

(h) Oversee the management of the agency.

(i) Appoint an administrator.

(j) Provide for a substitute administrator to act in the absence of the administrator. If it is necessary to immediately terminate an administrator or if the agency loses an administrator for other reasons, employ or name a qualified replacement as soon as possible within 90 days of the vacancy.

(k) Notify the department in writing within 10 days of any appointment or change of the administrator or the substitute administrator.

(L) Notify the department in writing within 10 days of a change in the location of the agency or contact information for the personal care provider.

(1f) Provision of information. A county, independent living center or federally recognized American Indian tribe or band personal care provider shall provide, in a format approved by the department, identifying information about the county, independent living center or federally recognized American Indian tribe or band and those agencies and individuals that provide Medicaid personal care services through a contract with the county, independent living center or federally recognized American Indian tribe or band.

(1g) Finances; accounting; recordkeeping; billing. A personal care provider shall do all of the following:

(a) Cash flow. Document adequate resources to maintain a cash flow sufficient to cover operating expenses for 60 days.

(b) Accounting methods. Document a financial accounting system that complies with generally accepted accounting principles.

1. Written personnel policies.

2. Written job descriptions.

3. A written plan of operations indicating the entire process from making referrals through delivery of services and follow-up.

4. A written statement defining the scope of personal care services provided, including the population being served, service needs and service priorities.

5. A written record of personal care workers’ training.

6. Workers’ time sheets.

7. Contracts with workers and other agencies.

8. Records of supervisory visits.

(cm) Electronic visit verification. The provider is required to capture and retain EVV records.

(d) Billing. Bill the medical assistance program for services covered under s. DHS 107.112.

(1k) Administrator and administrator qualifications.

(a) The administrator of a personal care agency shall meet all of the following requirements:

1. Be at least 21 years of age.

2. Have the ability to fulfill the job requirements, respond to the needs of the clients, and manage the personal care agency.

3. Have an associate degree or higher in a health care-related field from an accredited college, or a bachelor’s degree in a field other than in health care from an accredited college and one year experience working in a health care-related field.

4. Have training and experience in health care administration and at least one year of supervisory or administrative experience in home health care or personal care, or a related health program.

5. Be knowledgeable about this chapter and s. DHS 107.112, and take all reasonable steps to ensure that the personal care agency complies with the requirements of this chapter.

6. Be responsible for the overall provision of training and competency of all employees.

(b) Persons who are the administrator of record with the department of a personal care agency on the effective date of this rule shall be exempt from the qualification requirements specified under par. (a).