Summary of factual data and analytical methodologies
The department relied on all of the following sources to determine the impact on small businesses, specifically personal care agencies to draft the rules:
1. The Department met with the Home Care Advisory Committee (HCAC) and reviewed the initial draft of the rule. This committee is composed of representatives of the Wisconsin Personal Services Association (WPSA), Wisconsin Homecare Organization (WHO), Professional Homecare Providers (PHP), subcontracted personal care agencies, ILCs, home health agencies, counties, and representatives from the Homecare Consumer Advisory Committee. Representatives from these organizations were provided a copy of the initial draft of the rule and asked for comments. The initial draft of the rule was also sent to counties and ILCs for comment.
2. The 2002 Economic Census – Wisconsin Geographic Series, compiled by the U.S. census bureau every 5 years for each year ending in “2" and “7" and contains the latest available economic data (2007 data is not yet published-October 2009) compiled on businesses located in Wisconsin.
3. Criteria adopted by the Department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the Department's rules have a significant economic impact on a substantial number of small businesses. Pursuant to the Department's criteria, a rule will have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the rules are small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index or reduces revenues by more than the prior year's consumer price index. For the purposes of this rulemaking, 2008 is the index year. The consumer price index is compiled by the U.S. Department of Labor, Bureau of Labor Statistics; the preliminary rate for the Midwest in 2008 is currently estimated at 3.9 percent.
4.
Section
227.114 (1) (a), Wis. Stats., defines “small business" as a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employees 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
Analysis and supporting documents used to determine effect on small business
The North American Industry Classification System (NAICS) includes personal care agencies in the Health Care and Social Assistance sector, (sector 62) and further defined in sub-sector 6216 home health agencies (home based services). This industry sector comprises establishments primarily engaged in providing skilled nursing services in the home, along with a range of the following: personal care services; homemaker and companion services; physical therapy; medical social services; medications; medical equipment and supplies; counseling; 24-hour home care; occupation and vocational therapy; dietary and nutritional services; speech therapy; audiology; and high-tech care, such as intravenous therapy. Employment statistics and revenue data are not readily available for the personal care agency share of these major health care providers. The DQA has no data on personal care agencies, as these are not currently regulated by the agency. Based on the limited data available, it is estimated that 70 personal care agencies will initially seek certification from the department. The number of small business entities is unknown. Certification is required for these agencies to qualify for reimbursement from the Medicaid program. Currently, personal care agencies are reimbursed for services through counties or other third-party Medicaid providers.
This emergency order makes it possible for personal care agencies to bill the Wisconsin Medicaid program directly by complying with certification requirements in the Medicaid regulations. The overall outcome for the small businesses affected by the rules should be positive.
2009 Act 28, the 2009-11 biennial budget bill, expands the types of entities that can be certified by the department as Medicaid personal care providers. In particular, personal care agencies other than counties, Tribes, home health agencies, and Independent Living Centers can be certified directly as Medicaid providers. This emergency rule amends the existing Medicaid personal care certification rule, DHS 105, to implement the biennial budget provisions.
Counties, Tribes, home health agencies, and Independent Living Centers that are already Medicaid certified personal care providers under the prior statutory provisions, can remain personal care providers, without initiating or going through an application process.
In addition to specifying the certification procedures for independently certified personal care agencies, the emergency rule also updates requirements and includes new requirements for personal care providers to strengthen the protection of clients' health, safety, and rights. These changes apply both to existing certified personal care providers and to personal care agencies that seek certification under the Act 28 provisions. Based on consultations with personal care providers, these new requirements are best practices that have generally already been adopted by providers. For this reason they are not expected to impose new workload on providers.
The fiscal impact on small business as defined in s.
227.114 (1), Stats., should be minimal. The items listed below have been identified as potentially increasing revenues or costs to personal care providers.
Independent personal care agency certification
The provisions of the emergency rule will allow personal care agencies that provide services under contract with a county, Tribe, home health agency, or independent living center to become independently certified and bill the Medicaid program directly for personal care services. In addition, other agencies that do not currently serve Medical Assistance recipients will be able to be certified as Medical Assistance providers, begin serving Medical Assistance recipients, and be reimbursed for their services. The rule provisions would increase revenues for agencies that seek to be certified.
Application and annual fee
Personal care agencies that seek Medicaid certification under the provisions of Act 28 will be required to pay an initial application fee and an annual fee. Fees will be established by the Department's Division of Quality Assurance and may be periodically revised. The amount of the annual fee will be based on a number of factors including revenues from operations. The Division of Quality Assurance anticipates that initially the application fee will be $300. It is anticipated the annual fee will range from a minimum of $500, not to exceed $2,500 and will be based on the annual revenue of the freestanding personal care agency.
Minimize Risk of Infection
The first substantive revision requires agencies to provide staff training and proper supplies to minimize the risk of infection and to monitor for compliance. This requirement is expected to result in minimal costs to providers because many personal care providers in Wisconsin already provide staff training and monitoring to meet current standards of practice and Centers for Disease Control (CDC) guidelines. Any provider that does not meet this standard is able to access information from CDC's web site to train their staff and start their monitoring program. Additional costs for sundry supplies (e.g., gloves, masks, etc.) are expected to be minimal.
Communicable disease screening
Personal care providers will be required to ensure that employees are screened for the presence of clinically apparent communicable diseases, including tuberculosis, within 90 days before the employee has direct client contact. This standard is similar to employee health screening requirements for nursing homes, home health agencies, hospices, hospitals, facilities for the developmentally disabled and restaurants. The Journal of American Medical Association (April 19, 2000) identifies health care workers as a group at risk for acquiring tuberculosis. Pulmonary tuberculosis is a contagious disease that is usually spread through the coughing and sneezing of an infected person. Transmission of the infection usually occurs only after prolonged exposure. It is important for persons in high risk groups to be tested to ensure they are free from infectious disease to prevent exposure and spread of the disease to clients and to identify the need for treatment.
The average time to complete the pre-employment screening is estimated to be 30 minutes, at an estimated cost of $14 per employee. Although not required by rule, this may encourage providers to complete a tuberculosis skin test, at an average cost of $50 each.
Training and Orientation
The rules will require an estimated additional 4 hours of training and orientation for personal care workers (PCWs) and registered nurses. It is estimated that the average hourly rate is $28.00 salary and fringe. Estimated per staff costs are $116 per affected employee.
Discharge summary
The proposed rules require the completion of a discharge summary for all clients. It is estimated that a registered nurse will need 10 minutes to complete this requirement. The per-client cost is estimated at $7 ($40 per hour salary and fringe x 10 minutes).
Small Business Impact
The proposed rule will affect at least 10% of the small businesses affected by the rule, but the rules will not have a significant negative economic impact on those businesses.
Small Business Regulatory Coordinator
Rosie Greer
608-266-1279
Fiscal Estimate
A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.
Summary
A proposal included by the Wisconsin Legislature in the biennial budget act,
2009 Wisconsin Act 28, expands the types of entities whose personal care services may be reimbursable by Medical Assistance. To implement the legislation, the department has developed rules by which to certify personal care providers other than county agencies, home health agencies, tribes and Independent Living Centers that want to directly bill and be reimbursed by the Medical Assistance program for personal care services provided to recipients of Medical Assistance. This will allow existing personal care providers that currently bill the Medical Assistance program through one of the types of agency listed above to directly bill the Medical Assistance program, in the event their billing agency discontinues Medical Assistance certification as a personal care agency. In addition, some additional personal care agencies that do not serve Medical Assistance recipients will be able to be certified as Medical Assistance providers, begin serving Medical Assistance recipients, and be reimbursed for their services.
The rule allows small businesses to bill the Wisconsin Medicaid program for reimbursement for services they provide where they cannot do so now. As a result, rule will be beneficial to them, as it will allow them to bill the Medicaid program for reimbursement.
Act 28 included these provisions because it was anticipated that some counties may choose to discontinue their Medicaid personal care certification when they implement Family Care. The provisions would allow independently certified personal care agencies to serve Medicaid recipients who were previously served by the county. The rule provisions will not have any fiscal effect on state agencies other than those already reflected in Act 28.
In addition, the rule includes new provisions applying to all personal care providers regarding infection control, communicable disease screening, training and orientation, and discharge summaries. These provisions will not increase state agency costs. The provisions may result in a minimal cost increase for county agencies certified as personal care providers.
State fiscal effect
None.
Local government fiscal effect
Indeterminate.
Private sector fiscal effect
Indeterminate.
Long-range fiscal implications
None known.
Agency Contact Person
Pat Benesh, Quality Assurance Program Spec-Senior
Division of Quality Assurance
1 West Wilson St., Room 534
Madison, WI 53701
Phone: 608-264-9896
Fax: 608-267-0352
Notice of Proposed Rulemaking
(Without Hearing)
Health Services
NOTICE IS HEREBY GIVEN that pursuant to s.
227.11 (2) (a), Stats., and according to the procedure set forth in s.
227.16 (2) (e), Stats., the Department of Health Services will adopt a rule as proposed in this notice, without public hearing unless within 30 days after publication of this notice in the Wisconsin Administrative Register on January 1, 2010, the Department of Health Services is petitioned for a public hearing by 25 natural persons who will be affected by the rule; a municipality which will be affected by the rule; or an association which is representative of a farm, labor, business or professional group which will be affected by the rule.
The rule repeals Chapters
DHS 117,
160 and
253, and revises Chapter
DHS 172, relating to fees for copies of health care provider records, registration of sanitarians, child support cooperation for food stamps, and safety, maintenance and operation of public swimming pools and water attractions, and affecting small businesses.
Submission of Written Comments
General questions may be submitted to:
Rosie Greer
Department of Health Services
608-266-1279
Analysis Prepared by the Department of Health Services
Similar to the legislature's need to periodically make corrections and minor revisions to the Wisconsin statutes, the Department must periodically make such revisions to the Department's section of the Wisconsin administrative code and to its administrative rules. The changes made under this order are due to changes made to state law or rules and are intended to have little or no substantive effect on persons regulated by the rules.
DHS 117
The legislature, under
2009 Act 28, established a fee schedule for medical record copies under s.
146.83, Stats., which replaces the medical record copy fee schedule established by the department under ch.
DHS 117. Under this order, the department repeals ch.
DHS 117.
DHS 160
The legislature, under
2005 Act 25, transferred authority to regulate sanitarians to the department of regulation and licensing (DRL). DRL subsequently promulgated chs.
RL 174 to
177 to regulate sanitarians. The department's rules for sanitarians are under ch.
DHS 160. Under this order, the department repeals ch.
DHS 160.
DHS 172
The department of commerce repealed and recreated ch. Comm 90 (
Clearinghouse Rule 08-056) which resulted in the renumbering of various sections of that chapter. Chapter
DHS 172 includes cross-references to a number of sections in ch.
Comm 90. In addition to inaccurate cross-references, the DHS 172 contains language in need of correction or clarification. Under this order, the department updates the cross-references, and revises language in ch.
DHS 172.
DHS 253
The legislature, under
2007 Act 20, repealed s. 49.79 (2) (a), Stats., the child support cooperation requirement for food stamp eligibility. The department's rules for implementing these requirements are under ch.
DHS 253. Under this order, the department repeals ch.
DHS 253.
Comparison with federal regulations
Not applicable.
Comparison with rules in adjacent states
Illinois:
Not applicable.
Iowa:
Not applicable.
Michigan:
Not applicable.
Minnesota:
Not applicable.
Summary of factual data and analytical methodologies
