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:
Iowa does not appear to have an administrative rule governing home health agencies.
Michigan:
Michigan does not appear to have an administrative rule governing home health agencies.
Minnesota:
Physician assistants: Minnesota 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: If a client transfers to another home care provider or other health care practitioner or provider, or is admitted to an inpatient facility, the home care provider, upon request of the client or the client's representative, must take steps to ensure a coordinated transfer including sending a copy or summary of the client's record to the new home care provider, the facility, or the client, as appropriate. (Minn. R. Chapter 4668)
Infection control and prevention program: A home care provider must establish and maintain a comprehensive tuberculosis infection control program according to the most current tuberculosis infection control guidelines issued by the CDC, Division of Tuberculosis Elimination, as published in CDC's Morbidity and Mortality Weekly Report. The program must include a tuberculosis infection control plan that covers all paid and unpaid employees, contractors, students, and volunteers. The state department of health must provide technical assistance regarding implementation of the guidelines. (Minn. R. Chapter 4668)
Summary of factual data and analytical methodologies
The department relied on the following sources to draft the proposed rule and to determine the impact on home health agencies.
• The department formed an Advisory Committee consisting of home health agency administrators and registered nurses. Committee members reviewed the initial draft of the rule and were asked for comments. Their comments guided the development of the proposed rule.
• The 2012 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 compiled on businesses located in Wisconsin.
• Criteria adopted by the department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the department’s proposed rules have a significant economic impact on a substantial number of small businesses. Pursuant to the department’s criteria, a proposed rule will have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the proposed 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 medical care services in 2016 is currently estimated at 3.3 percent.
• DHS databases including the ASPEN Information System which contains demographic, licensing, program, and compliance history of home health agencies in Wisconsin.
• Data reported by the 129 home health agencies responding to the Department’s
2005 home health agency survey and published in “Wisconsin Home Health Agency Directory, 2005,” was used to determine the number of small businesses. (Wisconsin Department of Health and Family Services, Division of Public Health, Bureau of Health Information Policy, Wisconsin Home Health Agency Directory, 2005, (PPH 5378-05) December 2006)
• Data reported in the Wisconsin Department of Health and Family Services, Division
of Public Health, Bureau of Health Information Policy, Wisconsin Home Health
Agencies and Patients, 2005, (PPH 5354-05) February 2007.
Analysis and supporting documents used to determine effect on small business
All home health agencies, both publicly and privately owned, are regulated by the department under ch. DHS 133 and ch. 50, Stats. These agencies are commonly referred to as state-only licensed home health agencies. If a home health agency participates as a provider in the Medicaid and Medicare programs, the home health agency is also regulated by the department under 42 CFR 484 and commonly referred to as a state licensed and federally certified home health agency. The department estimates that at least 50% of all licensed agencies may be considered small businesses, as defined in s. 227.114 (1), Stats., with estimated average gross annual revenues of $4.8 million and annual payroll of 2.5 million per agency. The proposed changes codify statute enacted in 2012 and clarify existing requirements. None of these proposed changes will have an economic impact on home health agencies. Pursuant to the foregoing analysis, the proposed rules will affect a substantial number of small businesses that are home health agencies, but the proposed rules will not have an economic impact on these businesses.
In addition, pursuant to s. 227.114 (2), Stats., the department considered the methods for reducing the impact of proposed rule revisions on small businesses. The department believes that proposed rule revisions will result in less stringent and simplified compliance requirements. Effect on small business
Based on the foregoing analysis, the rules are anticipated to have little to no economic impact on small businesses.
Statement on quality of agency data
The data sources used to draft the rules and analyses are accurate, reliable and objective and are listed in the Summary of Factual Data and Analytical Methodologies section of this rule order.
Agency contact person
Patricia Benesh
Phone: (608) 264-9896
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The deadline for submitting comments and the notice of public hearing will be posted on the Wisconsin State Legislature’s Administrative Rules website http://docs.legis.wisconsin.gov/code. RULE TEXT
SECTION 1. DHS 133.01 is amended to read:
DHS 133.01 Authority and purpose. This chapter is promulgated under the authority of s. 50.49 (2), Stats. The chapter establishes minimum standards for the operation of home health agencies which primarily provide in−home part−time or intermittent nursing care and other therapeutic services. These minimum standards are intended to foster safe and adequate care and treatment of 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.
