The proposed rules will not directly affect small businesses. The rules under this order are to conform to the transfer of authority under 2005 Wisconsin Act 25
from the department to DRL. Any fiscal impact upon small business occurred when the changes from 2005 Wisconsin Act 25
were implemented by DRL in 2005 and 2006.
Small Business Regulatory Coordinator
The proposed revisions to DHS 75 bring DHS administrative rules into compliance with changes finalized by the legislature in 2005 and implemented by the Department of Regulation and Licensing (DRL) in 2006. Any fiscal impact due to the changes would have already been addressed by state government, local governments, and small businesses when DRL implemented the changes in 2006.
A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.
State fiscal effect
Local government fiscal effect
Private sector fiscal effect
Long-range fiscal implications
Agency Contact Person
S. Kate Johnson
Bureau of Prevention, Treatment and Recovery
1 West Wilson Street, Room 850
Madison, WI 53704
Notice of Hearing
Medical Assistance, Chs. DHS 101—
Health, Chs. DHS 110—
NOTICE IS HEREBY GIVEN that pursuant to ss. 49.45 (2) (a) 11.
and 227.11 (2)
, Stats., the Department of Health Services will hold a public hearing on emergency rules and proposed permanent rules to consider revisions to Chapters DHS 105
, and 133
, relating to Medical Assistance certification for personal care agencies and providers, and affecting small businesses.
Date and Time
February 3, 2010
9:00 a.m. - 11:00 a.m.
Dept. of Health Services
Wilson St. State Office Bldg.
1 West Wilson Street
DHS is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting Pat Benesh at 608-264-9896. You must make your request at least 7 days before the activity.
DHS es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con Pat Benesh al número 608-264-9896. Debe someter su petición por lo menos 7 días de antes de la actividad.
DHS yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau Pat Benesh ntawm 608-264-9896. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.
Copies of the Proposed Rule
A copy of the rules may be obtained from the department at no charge by downloading the documents from www.adminrules.wisconsin.gov
or by contacting:
Pat Benesh, Quality Assurance Program Spec-Senior
Division of Quality Assurance
1 West Wilson St., Room 534
Madison, WI 53701
Submission of Written Comments
Comments may be submitted to the agency contact person listed above or to the Wisconsin Administrative Rules Website at www.adminrules.wisconsin.gov
until February 4, 2009, 4:30 p.m.
Analysis Prepared by the Department of Health Services
Explanation of agency authority
Section 49.45 (2) (a) 11.
, Stats., authorizes the department to establish criteria for certification of providers of Medical Assistance, certify providers who meet certification criteria and promulgate rules to implement the statute.
Section 49.45 (10)
, Stats., authorizes the department to promulgate rules consistent with its duties in administering Medical Assistance, including its duties relating to reimbursement for personal care services by certified providers.
Section 49.45 (42) (c)
, Stats., allows the department to charge a fee to certify a provider of personal care services that is not an independent living center (ILC), county department, a federally recognized American Indian tribe or band in Wisconsin or a licensed home health agency.
Section 227.11 (2) (a)
, Stats., allows agencies to promulgate rules interpreting the provision of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Plain language analysis
The department proposes standards by which to certify freestanding personal care agencies, county departments, home health agencies, federally recognized American Indian tribe or band in Wisconsin, and ILCs as personal care providers. The proposed rules includes certification requirements for persons that want to directly bill and be reimbursed by the Medical Assistance program for the personal care services provided to recipients of Medical Assistance. The rules include new provisions that all personal care providers must follow. The new provisions are:
Provide employee orientation, evaluation and health screening, including tuberculosis.
Train staff regarding infection control and prevention.
Provide client rights, including determination of client appropriateness for service, provisions of rights and notice of how to file a complaint with the department.
Require a service agreement and a notice and criteria for discharge.
Promptly notify the physician of a significant change in condition.
Comparison with federal regulations
of 42 CFR contains the requirements for providing personal care services to Medicaid recipients. Section 440.167
does not provide detail on the types of agencies which are allowed to provide personal care services or to directly bill the Medicaid program for reimbursement.
Comparison with rules in adjacent states
Wisconsin offers personal care as an optional Medicaid state plan service, but Illinois does not. Illinois does offer some types of personal care services under waivers.
Wisconsin offers personal care as an optional Medicaid state plan service, but Iowa does not. Iowa does offer some types of personal care services under waivers.
Both Michigan and Wisconsin offer personal care as an optional Medicaid state plan service.
Michigan is one of only 2 states nationwide (the other is New Jersey) that covers assistive devices or equipment under the PCS benefit. Nationwide, 17 of the 25 states that offer personal care services (71%) allow some kind of consumer direction for the PCS benefit. Michigan allows it to some extent (as does Minnesota). Wisconsin very recently began offering a self-directed personal care option on a very limited basis to participants in the self-directed program known as IRIS (Include, Respect, I Self-Direct).
Wisconsin is in the middle of the 3 states in the region terms of the settings where the personal care services benefit may be provided. Michigan is more restrictive than Wisconsin, as the service may only be provided in the home. In Wisconsin, the services may be provided in the home or in community-based residential setting in facilities of 20 beds or less.
Minnesota is the most stringent of the 3 states in terms of who may authorize the use of personal care services. Minnesota requires a statement of medical need from a physician and an assessment as to need by a public health nurse. In Michigan, physicians, social workers, case managers, physician assistants, and nurse practitioners may all authorize personal care services. Wisconsin only allows personal care services when authorized by a physician.
Both Minnesota and Wisconsin offer personal care as an optional Medicaid state plan service.
Wisconsin is in the middle of the 3 states in terms of the settings where the personal care services benefit may be provided. In Wisconsin, the services may be provided in the home or in community-based residential setting in facilities of 20 beds or less. Minnesota provides the service in the home, in community-based residential settings, in schools, and in the workplace.
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.