Fax: 608-267-0352
Submittal 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
May 13, 2010, 4:30 p.m.
Analysis Prepared by the Department of Health Services
Statute interpreted
Statutory authority
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:
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Provide employee orientation, evaluation and health screening, including tuberculosis.
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Train staff regarding infection control and prevention.
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Provide client rights, including determination of client appropriateness for service, provisions of rights and notice of how to file a complaint with the department.
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Require a service agreement and a notice and criteria for discharge.
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Promptly notify the physician of a significant change in condition.
Since the first public hearing that was held on February 3, 2010, the Department made additional proposed revisions to s.
DHS 105.17.
Based on experience with other programs that provide services to clients statewide, the Department proposes under s.
DHS 105.17 (5) (ar) to require separate approval of branch offices if the Department determines that the branch office, because the volume of services provided or the distance between the branch office and the parent agency, cannot adequately share supervision and administration with the parent agency.
Additionally, the Department proposes under s.
DHS 105.17 (1f) to require counties, ILCs and tribes or bands to provide identifying information about the personal care provider and those agencies and individuals that provide Medicaid personal care services through a contract with the provider.
This data base will allow the Department to organize, store and retrieve information about personal care services provided in Wisconsin for various reporting and planning activities. The proposal does not affect home health agencies because the Department already collects this information from home health agencies through the license process and annual report process.
Comparison with federal regulations
Section
440.167 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
Illinois:
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.
Minnesota:
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.
Iowa:
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.
Michigan:
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.
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.
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), Wisconsin 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.
If an agency is required by the Department to separately certify a branch office, the agency will be required to pay an initial application fee and an annual fee for the separately certified entity. The amount of the annual fee for branch office certification will be based on a number of factors including revenues from operations. The Division of Quality Assurance anticipates that initially the application fee and the annual fee will be the same as for the parent agency and will be based on the annual revenue of the freestanding personal care agency.
Provision of Information
Counties, ILCs and federally recognized American Indian tribes or bands will be required to provide, in a format approved by the Department, identifying information about the personal care provider and those agencies and individuals that provide Medicaid personal care services through a contract with the personal care provider. This information will enable the Department to develop and maintain a data base of certified personal care providers to organize, store and retrieve information about personal care services provided in Wisconsin for various reporting and planning activities. The proposed rule does not include home health agencies because the Department already collects this information from home health agencies through the license application process and the annual report. It is estimated that the average time to complete this information will be 30 minutes at an estimated cost of $14.
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
Phone: 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.
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 Hearings
Natural Resources
Fish, Game, etc., Chs.
NR 1—
NOTICE IS HEREBY GIVEN That pursuant to ss.
23.091,
23.09 (2) (intro),
23.11 (1),
23.28 (3),
23.293,
27.01 (2) (j),
27.01 (10) (b) and
(f),
227.11 (2) (a) and
23.33 (4) (b), Stats., the Department of Natural Resources, hereinafter the Department, will hold a public hearing on a rule revising Chapter
NR 45, relating to the use of department properties.
