Chapter 46

46.275(5)(b)7. 7. Provide services in any community-based residential facility unless the county or department uses as a service contract the approved model contract developed under s. 46.27 (2) (j), 2017 stats., or a contract that includes all of the provisions of the approved model contract.

46.275(5)(c) (c) The total allocation under s. 20.435 (4) (b), (gm), (o), and (w) to counties and to the department under sub. (3r) for services provided under this section may not exceed the amount approved by the federal department of health and human services. A county may use funds received under this section only to provide services to persons who meet the requirements under sub. (4) and may not use unexpended funds received under this section to serve other developmentally disabled persons residing in the county.

46.275(5)(d) (d) The department may, from the appropriation under s. 20.435 (4) (o), provide reimbursement for services provided under this section by counties that are in excess of the current average annual per person rate, as established by the department, and are less than the average amount approved in the waiver received under sub. (2).

46.275(5)(e) (e) From the appropriation under s. 20.435 (2) (gL), the department may provide moneys to a county to pay for one-time costs associated with the relocation under this section of an individual from a state center for the developmentally disabled.

46.275(5m) (5m) Report. By March 1 of each year, the department shall submit a report to the joint committee on finance and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), describing the program’s impact during the preceding calendar year on state employees, including the department’s efforts to redeploy employees into vacant positions and the number of employees laid off.

46.275(6) (6) Effective period. This section takes effect on the date approved by the secretary of the U.S. department of health and human services as the beginning date of the period of waiver received under sub. (2). This section remains in effect for 3 years following that date and, if the secretary of the U.S. department of health and human services approves a waiver extension, shall continue an additional 3 years.

46.275 History History: 1983 a. 27; 1985 a. 29 ss. 896b to 896L, 3202 (23); 1985 a. 120, 176; 1987 a. 27; 1987 a. 161 s. 13m; 1987 a. 186; 1989 a. 31; 1993 a. 16; 1995 a. 27, 77; 1997 a. 27, 114; 1999 a. 9; 2001 a. 16; 2003 a. 33, 318; 2005 a. 25, 264; 2007 a. 20, 153; 2009 a. 2, 302; 2011 a. 32, 126; 2015 a. 180; 2019 a. 9; 2021 a. 232, 239.

46.275 Annotation The circuit court that protectively placed an incompetent person in a center for the developmentally disabled, and not the person’s parent or guardian, has the ultimate authority under state and federal law to determine whether the person should remain institutionalized or receive home or community based services. OAG 3-97.

46.277 46.277 Community integration program for persons relocated or meeting reimbursable levels of care.

46.277(1) (1) Legislative intent. The intent of the program under this section is to provide home or community-based care to serve in a noninstitutional community setting a person who meets eligibility requirements under 42 USC 1396n (c) and is relocated from an institution other than a state center for the developmentally disabled or meets the level of care requirements for medical assistance reimbursement in a skilled nursing facility or an intermediate care facility, except that the number of persons who receive home or community-based care under this section is not intended to exceed the number of nursing home beds that are delicensed as part of a plan submitted by the facility and approved by the department. The intent of the program is also that counties use all existing services for providing care under this section, including those services currently provided by counties.

46.277(1m) (1m) Definitions. In this section:

46.277(1m)(a) (a) “Medical assistance” means aid provided under subch. IV of ch. 49, except ss. 49.468 and 49.471.

46.277(1m)(ag) (ag) “Delicensed” means deducted from the number of beds stated on a facility’s license, as specified under s. 50.03 (4) (e).

46.277(1m)(am) (am) “Plan submitted by the facility” means an individual relocation plan under s. 50.03 (14).

46.277(1m)(at) (at) “Private nonprofit agency” means a nonprofit corporation, as defined in s. 181.0103 (17), that provides a program of all-inclusive care for the elderly under 42 USC 1395eee or 1396u-4.

46.277(1m)(b) (b) “Program” means the community integration program for which a waiver has been received under sub. (2).

46.277(2) (2) Departmental powers and duties. The department may request a waiver from the secretary of the federal department of health and human services, under 42 USC 1396n (c), authorizing the department to serve medical assistance recipients, who meet the level of care requirements for medical assistance reimbursement in a skilled nursing facility or an intermediate care facility, in their communities by providing home or community-based services as part of medical assistance. The number of persons for whom the waiver is requested may not exceed the number of nursing home beds that are delicensed as part of a plan submitted by the facility and approved by the department. If the department requests a waiver, it shall include all assurances required under 42 USC 1396n (c) (2) in its request. If the department receives this waiver, it may request one or more 3-year extensions of the waiver under 42 USC 1396n (c) and shall perform the following duties:

46.277(2)(a) (a) Evaluate the effect of the program on medical assistance costs and on the program’s ability to provide community care alternatives to institutional care in facilities certified as medical assistance providers.

46.277(2)(b) (b) Fund home or community-based services provided by any county that meet the requirements of this section.

46.277(2)(c) (c) To the maximum extent possible, authorize the provision of services under this section to serve persons, except those institutionalized in a state center for the developmentally disabled, in noninstitutional settings and coordinate application of the review criterion under s. 150.39 (5) with the services provided under this section.

46.277(2)(d) (d) Unless s. 49.45 (37) applies, review and approve or disapprove each plan of care developed by the county department under sub. (3).

46.277(2)(e) (e) Review and approve or disapprove waiver requests under sub. (3) (c), review and approve or disapprove requests for exceptions under sub. (5) (d) 3. and provide technical assistance to a county that reaches or exceeds the annual allocation limit specified in sub. (3) (c) in order to explore alternative methods of providing long-term community support services for persons who are in group living arrangements in that county.

46.277(3) (3) County participation.

46.277(3)(a) (a) Section 46.275 (3) (a), (c), and (d) applies to county participation in this program, except that services provided in the program shall substitute for care provided a person in a skilled nursing facility or intermediate care facility who meets the level of care requirements for medical assistance reimbursement to that facility rather than for care provided at a state center for the developmentally disabled. The number of persons who receive services provided by the program under this paragraph may not exceed the number of nursing home beds, other than beds specified in sub. (5g) (b), that are delicensed as part of a plan submitted by the facility and approved by the department.

46.277(3)(b) (b)

46.277(3)(b)1. 1. If the provision of services under this section results in a decrease in the statewide nursing home bed limit under s. 150.31 (3), the facility affected by the decrease shall submit a plan for delicensing all or part of the facility that is approved by the department.

46.277(3)(b)2. 2. Each county department participating in the program shall provide home or community-based care to persons eligible under this section, except that the number of persons who receive home or community-based care under this section may not exceed the number of nursing home beds, other than beds specified in sub. (5g) (b), that are delicensed as part of a plan submitted by the facility and approved by the department.

46.277(3)(c) (c) Beginning on January 1, 1996, from the annual allocation to the county for the provision of long-term community support services under sub. (5), annually establish a maximum total amount that may be encumbered in a calendar year for services for eligible individuals in community-based residential facilities.

46.277(3)(d) (d) The county department or aging unit that administers the program under this section shall, within the time period specified by the department, offer counseling, that is specified by the department, concerning public and private benefit programs to prospective residents of community-based residential facilities who are referred to the county department or aging unit under s. 50.035 (4n).

46.277(3m) (3m) Participation by a private nonprofit agency. A private nonprofit agency with which the department contracts for service under sub. (5) (c) shall have the powers and duties under this section of a county department, as specified in sub. (3) (a).

46.277(3r) (3r) Worker’s compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker’s compensation coverage for those services is considered, for purposes of worker’s compensation coverage, to be an employee of the entity that is providing financial management services for that person.

46.277(4) (4) Eligibility of residents.

46.277(4)(a) (a) Any medical assistance recipient who meets the level of care requirements for medical assistance reimbursement in a skilled nursing facility or intermediate care facility is eligible to participate in the program, except that the number of participants may not exceed the number of nursing home beds, other than beds specified in sub. (5g) (b), that are delicensed as part of a plan submitted by the facility and approved by the department. Such a recipient may apply, or any person may apply on behalf of such a recipient, for participation in the program. Section 46.275 (4) (b) applies to participation in the program.

46.277(4)(b) (b) To the extent authorized under 42 USC 1396n, if a person discontinues participation in the program, a medical assistance recipient may participate in the program in place of the participant who discontinues if that recipient meets the level of care requirements for medical assistance reimbursement in a skilled nursing facility or intermediate care facility, except that the number of participants may not exceed the number of nursing home beds, other than beds specified in sub. (5g) (b), that are delicensed as part of a plan submitted by the facility and approved by the department.

46.277(5) (5) Funding.

46.277(5)(a) (a) The provisions of s. 46.275 (5) (a), (b) 1. to 4. and 6. and (d) apply to funding received by counties under the program.

46.277(5)(b) (b) Total funding to counties under the program may not exceed the amount approved in the waiver received under sub. (2).

46.277(5)(c) (c) The department may contract for services under this section with a private nonprofit agency. Paragraphs (a) and (b) apply to funding received by a private nonprofit agency under this subsection.

46.277(5)(d) (d)

46.277(5)(d)1. 1. In this paragraph, “physically disabled” means having a condition that affects one’s physical functioning by limiting mobility or the ability to see or hear, that is the result of injury, disease or congenital deficiency and that significantly interferes with or limits at least one major life activity and the performance of one’s major personal or social roles.

46.277(5)(d)1m. 1m. No county may use funds received under this section to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under subds. 2., 3., and 4. and par. (e), one of the following applies:

46.277(5)(d)1m.a. a. The services are provided to the person in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable independent entrance and exit and individual separate kitchen, bathroom, sleeping and living areas.

46.277(5)(d)1m.b. b. The person suffers from Alzheimer’s disease or related dementia and the services are provided to the person in a community-based residential facility that has a dementia care program.

46.277(5)(d)1m.c. c. The services are provided to the person in a residential care apartment complex, as defined in s. 50.01 (6d).

46.277(5)(d)1m.d. d. The services are provided to the individual in an adult family home, as defined in s. 50.01 (1).

46.277(5)(d)1m.e. e. Subdivision 1n. applies.

46.277(5)(d)1n. 1n. A county may also use funds received under this section, subject to the limitations under subds. 2., 3., and 4. and par. (e), to provide services to a person who does not live in his or her own home or apartment if the services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:

46.277(5)(d)1n.b. b. The county department or aging unit documents that the option of in-home services has been discussed with the person, thoroughly evaluated and found to be infeasible, as determined by the county department or aging unit in accordance with rules promulgated by the department of health services.

46.277(5)(d)1n.c. c. The county department or aging unit determines that the community-based residential facility is the person’s preferred place of residence or is the setting preferred by the person’s guardian.

46.277(5)(d)1n.d. d. The county department or aging unit determines that the community-based residential facility provides a quality environment and quality care services.

46.277(5)(d)1n.e. e. The county department or aging unit determines that placement in the community-based residential facility is cost-effective compared to other options, including home care and nursing home care.

46.277(5)(d)1p. 1p.

46.277(5)(d)1p.a. a. Subject to the approval of the department, a county may establish and implement more restrictive conditions than those imposed under subd. 1m. on the use of funds received under this section for the provision of services to a person in a community-based residential facility. A county that establishes more restrictive conditions under this subd. 1p. a. shall include the conditions in its plan under sub. (3) (a).

46.277(5)(d)1p.b. b. If the department determines that a county has engaged in a pattern of inappropriate use of funds received under this section, the department may revoke its approval of the county’s conditions established under subd. 1p. a., if any, and may prohibit the county from using funds received under this section to provide services under subd. 1n.

46.277(5)(d)2. 2. No county may use funds received under this section to provide residential services in any community-based residential facility, as defined in s. 50.01 (1g), unless the department approves the provision of services in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable entrance and exit and individual separate kitchen, bathroom, sleeping and living areas, to individuals who are eligible under this section and are physically disabled or are at least 65 years of age.

46.277(5)(d)3. 3. If subd. 2. applies, no county may use funds received under this section to pay for services provided to a person who resides or intends to reside in a community-based residential facility and who is initially applying for the services, if the projected cost of services for the person, plus the cost of services for existing participants, would cause the county to exceed the limitation under sub. (3) (c). The department may grant an exception to the requirement under this subdivision, under the conditions specified by rule, to avoid hardship to the person.

46.277(5)(d)4. 4. No county may use funds received under this section to provide residential services in a group home, as defined in s. 48.02 (7), that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.

46.277(5)(e) (e) A county may use funds received under this subsection to provide supportive, personal or nursing services, as defined in rules promulgated under s. 49.45 (2) (a) 23., to a person who resides in a certified residential care apartment complex, as defined in s. 50.01 (6d). Funding of the services may not exceed 85 percent of the statewide medical assistance daily cost of nursing home care, as determined by the department.

46.277(5)(f) (f) No county or private nonprofit agency may use funds received under this subsection to provide services in any community-based residential facility unless the county or agency uses as a service contract the approved model contract developed under s. 46.27 (2) (j), 2017 stats., or a contract that includes all of the provisions of the approved model contract.

46.277(5)(g) (g)

46.277(5)(g)1. 1. The department may provide enhanced reimbursement for services provided under this section to an individual who, on or after July 27, 2005, is relocated to the community from a nursing home by a county department or to an individual who meets the level of care requirements for Medical Assistance reimbursement in a skilled nursing facility or an intermediate care facility and is diverted from imminent entry into a nursing home. The number of individuals served under this paragraph may not exceed the number of nursing home beds that are delicensed as part of plans submitted by nursing homes and approved by the department.

46.277(5)(g)2. 2. The department shall develop and utilize a formula to determine the enhanced reimbursement rate for services provided under subd. 1. The department shall also develop and utilize criteria for determining imminent entry into a nursing home under subd. 1. that shall include an imminent loss of current living arrangements and an imminent risk of a long-term nursing home stay. The department need not promulgate as rules under ch. 227 the criteria required to be developed and utilized under this subdivision.

46.277(5g) (5g) Limitations on service.

46.277(5g)(a) (a) The number of persons served under this section may not exceed the number of nursing home beds that are delicensed as part of a plan submitted by the facility and approved by the department.

46.277(5g)(b) (b) This section does not apply to the delicensure of a bed of an institution for mental diseases of an individual who is aged 21 to 64, who has a primary diagnosis of mental illness and who otherwise meets any of the following requirements:

46.277(5g)(b)1. 1. A person who resided in the facility on the date of the finding that a skilled nursing facility or intermediate care facility that provides care to Medical Assistance recipients is an institution for mental diseases whose care in the facility is disallowed for federal financial participation under Medical Assistance.

46.277(5g)(b)2. 2. A person who is aged 21 to 64, who has a primary diagnosis of mental illness, who would meet the level of care requirements for Medical Assistance reimbursement in a skilled nursing facility or intermediate care facility but for a finding that the facility is an institution for mental diseases, and for whom services would be provided in place of a person specified in subd. 1. who discontinues services.

46.277(5m) (5m) Report. By October 1 of each year, the department shall submit a report to the joint committee on finance and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), describing the cost and quality of services used under the program and the extent to which existing services have been used under the program in the preceding calendar year.

46.277(5r) (5r) Rule making. The department shall promulgate rules that specify conditions of hardship under which the department may grant an exception to the requirement of sub. (5) (d) 3.

46.277(6) (6) Effective period. The effective date provisions of s. 46.275 (6) apply to this section.

46.277 History History: 1983 a. 27; 1985 a. 29 ss. 896nc to 896u, 3202 (23); 1985 a. 176; 1987 a. 27, 186, 399; 1989 a. 31; 1991 a. 39; 1993 a. 16; 1995 a. 27; 1997 a. 13, 27, 114; 1999 a. 9; 2001 a. 16; 2003 a. 33; 2005 a. 25, 355; 2007 a. 20 ss. 926 to 928, 9121 (6) (a); 2009 a. 277; 2013 a. 165 s. 114; 2015 a. 55, 180; 2017 a. 366; 2019 a. 9; 2021 a. 232, 239.

46.277 Cross-reference Cross-reference: See also ch. DHS 73, Wis. adm. code.

46.278 46.278 Community integration program and brain injury waiver program for persons with developmental disabilities.

46.278(1) (1) Legislative intent. The intent of the programs under this section is to provide home or community-based care to serve in a noninstitutional community setting a person who meets eligibility requirements under 42 USC 1396n (c) and who is diagnosed as developmentally disabled under the definition specified in s. 51.01 (5) and relocated from an institution other than a state center for the developmentally disabled or who meets the intermediate care facility for persons with an intellectual disability or brain injury rehabilitation facility level of care requirements for medical assistance reimbursement in an intermediate care facility for persons with an intellectual disability or a brain injury rehabilitation facility and is ineligible for services under s. 46.275 or 46.277. The intent of the program is also that counties use all existing services for providing care under this section, including those services currently provided by counties.

46.278(1m) (1m) Definitions. In this section:

46.278(1m)(a) (a) “Brain injury rehabilitation facility” means a nursing facility or hospital designated as a facility for brain injury rehabilitation by the department under the approved state medicaid plan.

46.278(1m)(ag) (ag) “Family consortium” means a group composed of relatives, or of relatives and the guardian, of an individual with developmental disability who together provide services for the individual in a home that is an extension of a relative’s or the guardian’s home.

46.278(1m)(am) (am) “Intermediate care facility for persons with an intellectual disability” has the meaning given for “intermediate care facility for the mentally retarded” under 42 USC 1396d (d).

46.278(1m)(b) (b) “Medical assistance” means aid provided under subch. IV of ch. 49, except ss. 49.468 and 49.471.

46.278(1m)(c) (c) “Program” means the community integration program or the brain injury waiver program, for facilities certified as medical assistance providers, for which a waiver has been received under sub. (3).

46.278(2) (2) Departmental powers and duties.

46.278(2)(a) (a) The department may request one or more waivers from the secretary of the federal department of health and human services, under 42 USC 1396n (c), authorizing the department to serve medical assistance recipients, who meet the level of care requirements for medical assistance reimbursement in an intermediate care facility for persons with an intellectual disability or in a brain injury rehabilitation facility, in their communities by providing home or community-based services as part of medical assistance. If the department requests a waiver, it shall include all assurances required under 42 USC 1396n (c) (2) in its request.

46.278(2)(b) (b) Section 49.45 (37) applies to this subsection.

46.278(3) (3) Waiver; extension; duties. If the department receives a waiver requested under sub. (2) (a), it may request a 3-year extension of the waiver under 42 USC 1396n (c) and shall perform the following duties:

46.278(3)(a) (a) Evaluate the effect of each program on medical assistance costs and on the program’s ability to provide community care alternatives to institutional care in facilities certified as medical assistance providers.

46.278(3)(b) (b) Fund home or community-based services provided by any county that meet the requirements of this section.

46.278(3)(c) (c) To the maximum extent possible, authorize the provision of services under this section to serve persons, except those institutionalized in a state center for the developmentally disabled, in noninstitutional settings and coordinate application of the review criterion under s. 150.39 (5) with the services provided under this section.

46.278(4) (4) County participation.

46.278(4)(a) (a) Section 46.275 (3) (a), (c), and (d) applies to county participation in a program, except that services provided in the program shall substitute for care provided a person in an intermediate care facility for persons with an intellectual disability or in a brain injury rehabilitation facility who meets the intermediate care facility for persons with an intellectual disability or brain injury rehabilitation facility level of care requirements for medical assistance reimbursement to that facility rather than for care provided at a state center for the developmentally disabled.