ORDER OF THE
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services (department) proposes an order to amend DHS 133.01, 133.02 (3), 133.09 (1), 133.09 (3) (a) 1., 133.09 (3) (a) 3. b. and c., DHS 133.09 (3) (b), 133.13, 133.14 (2) (a) through (i), 133.20 (1), (3), and (4), and 133.21 (4) and (5) (a) through (h); and to create DHS 133.02 (5g), 133.02 (9m) of the Wisconsin Administrative Code, relating to home health agencies.
RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
The department’s authority to promulgate rules is as follows:
Section 50.49 (2) (a), Stats., reads: The department may develop, establish and enforce standards for the care, treatment, health, safety, welfare and comfort of patients by home health agencies and for the maintenance and operation of home health agencies which, in the light of advancing knowledge, will promote safe and adequate care and treatment of such patients by home health agencies. Section 227.11 (2) (a), Stats., reads: Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency: 1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature. 2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related statute or rule
See the “Statutes interpreted” and “Statutory authority” sections.
Plain language analysis
On April 12, 2012, 2011 Wisconsin Act 161 went into effect, amending the definition of home health services found in s. 50.49 (1) (b), Stats., to include services that are provided to an individual who is under the care of a physician assistant. This change authorizes physician assistants to complete certain medically related actions in home health agencies. The department proposes to conform ch. DHS 133 to s. 50.49 (1) (b), Stats., and therefore broaden the scope of home health services. There is no reasonable alternative to rulemaking. Pursuant to s. 227.10 (01), Stats., the department is required to promulgate rules for each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. In addition, the department proposes to revise provisions in ch. DHS 133 relating to patient records and infection control and prevention programs. The department has determined that these revisions are necessary in order to reduce confusion, and provide greater flexibility to home health agencies in meeting regulatory requirements. Specifically, ch. DHS 133 currently requires that an abstract of the patient’s record accompany the patient when the patient is transferred to another agency or health care facility. The department intends to clarify that an abstract of a patient’s record is the same as a summary of a patient’s record and that it must be provided to the receiving agency or facility. Additionally, ch. DHS 133 currently only specifies the CDC as an authority for reference in the development of the agency’s infection control and prevention program. The department proposes to clarify that agencies may use other nationally recognized subject authorities, in addition to the Centers for Disease Control and Prevention, to assist in the development of their infection control and prevention program. There is no reasonable policy alternative to rulemaking, because without needed revisions, provisions relating to patient records and infection control and prevention programs would remain unclear. Entities that may be affected by the proposed rule revisions are home health agencies, health care providers receiving patients from home health agencies, and consumers of home health services and their representatives.
Summary of, and comparison with, existing or proposed federal regulations
All searches conducted April 2016.
Physician assistants: There appears to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.
Abstract of a patient record: The federal regulations contain similar requirements (42 CFR Part 484.48 (a) Federal Conditions of Participation for Home Health Agencies). Infection control and prevention program: There appears to be no existing federal regulations that address the activities to be regulated by the proposed rule. On October 6, 2014 the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would require each home health agency to maintain and document a program to prevent and control infections and communicable diseases. The infection control program would follow accepted standards of practice, including standard precautions, and educate staff, patients, and caregivers about proper infection control procedures. The proposed rule was published in the Federal Register for public comments but has not, as of this date, been published as a final rule.
Comparison with rules in adjacent states
Illinois:
Physician assistants: Illinois law does not specifically address the practice of care provided by a physician assistant nor does it preclude the practice of a physician assistant in a home health agency.
Abstract of a patient record: Illinois rules require that each home health agency develop a discharge summary giving a brief review of service, patient status, reason for discharge, and plans for post-discharge needs of the patient. A discharge summary may suffice as documentation to close the patient record for one-time visits, and short-term, event-focused or diagnoses-focused interventions. The discharge summary need not be a separate piece of paper and may be incorporated into the routine summary of reports already furnished to the physician. A copy of appropriate patient transfer information shall be provided, when requested, if the patient is transferred to another health facility or health agency. (Illinois Home Health Agency, 79 III. Adm. Code Part 245).
Infection control and prevention program: Illinois rules require each home health agency to develop and implement policies and procedures for investigating, controlling and preventing infections. Placement agencies must provide to in-home services workers the CDC publication "Guidelines for Hand Hygiene in Health-Care Settings." Each agency must also adhere, at a minimum and as appropriate, to the guidelines of the CDC, United States Public Health Service, and Department of Health and Human Services, as incorporated in Section 245.25(b). (Illinois Home Health Agency, 79 III. Adm. Code Part 245). Iowa:
