By statute, the DETF Secretary is expressly authorized, with appropriate board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40 of the Wisconsin statutes. Also, each state agency may promulgate rules interpreting the provisions 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
Ch.
ETF 10, Wis. Admin. Code, concerns the administration of the Public Employee Trust Fund and Ch.
ETF 50 concerns disability benefits provided in accordance with the trust fund. Section
40.63, Wis. Stats. concerns disability annuities from the Wisconsin retirement system. There are no other related administrative rules or statutes.
Plain language analysis
The purpose of this rule is to enable participants to continue to receive private benefits offered by their employer, such as health insurance, while they are receiving disability benefits under s.
40.63, Stats.
Comparison with federal regulations
The only federal regulations that may be affected by this proposed rule are provisions of the Internal Revenue Code regulating qualified pension plans. The Wisconsin Retirement System is required to be maintained as a qualified plan by s.
40.015, Stats. As a general rule, pension plans are supposed to provide benefits at retirement. However, federal regulations state that a pension plan may provide for the payment of a pension due to disability. The Wisconsin Retirement System provides for disability annuities under s.
40.63, Stats.
Comparison with rules in adjacent states
The department did not locate any comparable rule or statute in any adjacent states.
Summary of factual data and analytical methodologies
Currently, the department interprets s.
40.63, Stats. to permit a disabled employee, who is on a leave of absence and not expected to return to service, to apply for a disability annuity benefit and to receive such benefits if the employee's application is approved. This practice followed an internal review of the department's policies and the pertinent statutes and administrative rules for administering the s.
40.63 disability benefit program.
This proposed rule addresses the status of disability annuitants with regard to the Wisconsin Retirement System and other fringe benefits under ch.
40, Stats. For example, if a disabled employee is deemed to have terminated employment for all ch.
40 purposes, the effect on that person's health insurance and premiums would vary depending on whether the employer participated in the group insurance board's health insurance under ch.
40 or if the employer offered other health insurance.
Under s.
ETF 50.54 (2) (b), long-term disability insurance benefits, which replaced disability annuity benefits for employees not continuously employed since before October 16, 1992, already are available for employees on a leave of absence. This proposed rule will conform the eligibility criteria regarding termination of employment for both disability annuities and long-term disability insurance.
Analysis and supporting documents used to determine effect on small business
The rule does not have an effect on small businesses because private employers and their employees do not participate in, and are not covered by, the Wisconsin Retirement System.
Initial Regulatory Flexibility Analysis
There is no effect on small business.
Fiscal Estimate
The rule codifies current department practice. The rule will have no effect on state funds.
Text of Proposed Rule
SECTION 1. ETF 10.08 (2) (b) 4. is amended to read:
4. Except as provided in ETF 50.30 (4), upon termination of employment the participant is treated consistently with the status of a former employee. This includes, but is not limited to the terminated employee no longer being eligible for benefits available only to active employees. Examples of such benefits may include health insurance, life insurance, income continuation insurance coverage, making deferred compensation or tax sheltered annuity contributions, worker's compensation coverage, internal grievance, promotion or transfer rights, or rights available to active employees under a collective bargaining agreement. This subd. shall not apply to benefits that may be available to the employer's retired employees, such as severance pay, post-retirement insurance coverage and/or employer payment of premiums, or post-retirement benefits or other rights provided through collective bargaining or other retirement agreements. However, agreements made after the termination date for future compensable services to be rendered by the employee would not be precluded under subd. 3.
SECTION 2. ETF 50.30 (4) is created to read:
(4) To be eligible for disability benefits under s.
40.63, Stats., a participant must terminate all participating employment. For disability benefits under s.
40.63, Stats., “termination of employment" means that the participant has ceased to be a participating employee on the termination date that the employer reports to the department for the purpose of all benefits administered under ch.
40, Stats. Such benefits include health insurance coverage and sick leave credit usage, life insurance coverage, income continuation insurance coverage, Wisconsin retirement system coverage and death benefits under s.
40.73 (1) (am) and
(c), and making deferred compensation contributions under s.
40.80, Stats. A termination of employment under this subs. does not preclude a participating employer from placing the participant on an administrative leave of absence as long as the employee is not expected to resume active service.
Proposed Effective Date
This rule shall take effect on the first day of the month commencing after the date of publication in the Wisconsin administrative register as provided by s.
227.22 (2) (intro.), Stats.
Notice of Hearing
Health and Family Services
Management and Technology and Strategic Finance,
Chs.
HFS 1—
NOTICE IS HEREBY GIVEN that pursuant to s.
46.287 Stats., and interpreting s.
46.286 (3) (a) Stats., as revised by
2007 Wisconsin Act 20, the Wisconsin Department of Health and Family Services will hold a public hearing on emergency rules amending ss.
HFS 10.55 (1) and
10.56 (2) and creating ss.
HFS 10.55 (1m) and
10.56 (2m), relating to fair hearings, and continuation of benefits pending the outcome of a grievance, Department review, or fair hearing under the Family Care program at the date, time, and location listed below.
Hearing Information
Date and Time
|
Location
|
May 12, 2008
1:00 - 2:00 p.m.
|
Dept. of Health and Family Services
1 West Wilson Street
Room 518B
Madison, Wisconsin
|
The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Submission of Written Comments
Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at
http://adminrules.wisconsin.gov.
The deadline for submitting comments to the Department is 4:30 p.m. on May 18, 2008.
Copies of Proposed Rules
A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at http://adminrules. wisconsin.gov or by contacting the person listed below.
Agency Contact Person
Charles Jones
Division of Long Term Care
1 W. Wilson St., Room 518
P.O. Box 7851
Madison, WI 53707-7851
Phone: (608) 266-0991
TTY: (888) 241-9432
Analysis Prepared by the Department of Health and Family Services
Statute interpreted
Statutory authority
Explanation of agency authority
The 2007-2009 Biennial Budget (
2007 Act 20) eliminates the entitlement to Family Care non-Medicaid eligibility. In addition, the federal Centers for Medicare and Medicaid Services has restricted the Family Care benefit for enrollees at the non-nursing home level of care.
Related statute or rule
Plain language analysis
There are two changes in federal and state policy that precipitate this emergency rulemaking.
First, non-Medicaid entitlement to Family Care benefits was eliminated under
2007 Act 20. Consequently, persons who are currently enrolled in the Family Care program but who are ineligible for Medicaid benefits will be disenrolled from the Family Care program, unless they become eligible for Medicaid benefits on or before July 1, 2008. Non-Medicaid eligible persons enrolled on December 31, 2008, may stay enrolled until June 30, 2008, in order to have time to attain Medicaid eligibility. The Department, the Family Care managed care organizations, and the local aging and disability resource centers will assist individuals in that attempt. The Department will provide notice to individuals subject to disenrollment under
2007 Act 20.
Second, the federal Centers for Medicare & Medicaid Services has restricted the Family Care benefit for persons at the non-nursing home level of care. Individuals at the non-nursing home level of care are no longer entitled to receive the home and community-based services more typically provided to people who do have a nursing home level of care and, therefore, may have some services reduced or terminated because of the change in CMS policy. The Department will provide notice of reduction or termination to these individuals.
Section
HFS 10.55 provides enrollees with a right to a fair hearing when services are reduced or terminated, or eligibility is denied. In addition, s.
HFS 10.56 (2) provides that enrollees whose Family Care benefits are reduced or terminated have a right to have their current services continued pending the outcome of a grievance, Department review, or fair hearing. If a person notified of the elimination of the non-Medicaid benefit in Family Care or a reduction of services because of the change in benefit for people at the non-nursing home level of care appealed and requested continuation of services, under the current rules a hearing and continuation of services would have to be granted.
However, persons who are non-Medicaid eligible who appeal the loss of services will lose the appeal, because the loss of benefits is due to a change in state law, which makes it clear that the Family Care benefit is no longer available to them. Similarly, persons who have a non-nursing home level of care who have home and community-based services reduced or terminated as a result of the change in the available benefit will lose, because the CMS policy change in the benefit package makes it clear that such individuals are no longer entitled to those services. Holding a fair hearing in these situations would be an inefficient use of resources for the participant, the Department, and the Division of Hearings and Appeals.
If either group receive continuation of services during a fair hearing, Department review, or grievance and lose they will be responsible to pay for the cost of the services provided pending the outcome of the fair hearing, Department review, or grievance. The cost to the individual could amount to thousands of dollars. Such a situation would be detrimental to the welfare of affected individuals and should be prevented.
The Department has issued an emergency order providing an exception to the right to a fair hearing and continuation of services during a fair hearing, grievance, or Department review when Family Care benefits are reduced or terminated by an act of the federal government or the state legislature and the individual whose benefits have been terminated or reduced does not dispute that he or she falls within the category of persons for whom the benefit was reduced or terminated.
Comparison with federal regulations
There are similar provisions in Medicaid rules at
42 CFR §431.220(b), which provides that the State Medicaid Agency “need not grant a hearing if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all recipients." And, at
42 CFR § 431.230(a)(1), which provides that individuals have a right to continuation of services pending the outcome of an appeal unless, “it is determined at the hearing that the sole issue is one of Federal or State law or policy."
Comparison with rules in adjacent states
Illinois: does not have a program similar to Family Care.
Iowa: does not have a program similar to Family Care.
Michigan: does not have a program similar to Family Care.
Minnesota: does not have a program similar to Family Care.
Summary of factual data and analytical methodologies
The Department reviewed
2007 Act 20, and the policy change by the Center for Medicare and Medicaid Services. The Department also assessed the adverse impact of these changes on the individuals affected.
Analysis and supporting documents used to determine effect on small business
The rules would not have an effect on businesses.
Initial Regulatory Flexibility Analysis
The rules would not have an effect on businesses.
Small Business Regulatory Coordinator
Rosie Greer
608-266-1279
Fiscal Estimate
The revised rule will result in an indeterminate decrease in costs to the Department and to Family Care managed care organizations (MCOs). Some MCOs are units of county government. Some MCOs are private non-profit organizations, which are not small businesses. The decrease in costs to the Department and to MCOs will result from not being required to assign staff to conduct or participate in fair hearings in which the appellant cannot be successful. In addition, MCOs may have decreased costs because they will not be required to continue to provide services during an appeal in which the appellant cannot be successful.
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.18, Stats., the Office of the Commissioner of Insurance will hold a public hearing to consider the adoption of the proposed rules revising sections
Ins 3.455 and
3.46, Wis. Adm. Code, relating to long-term care plans including the plans qualifying for the Wisconsin long-term care insurance partnership program and affecting small business.
Hearing Information
Date: May 12, 2008
