Chapter DHS 105

DHS 105.17 Note Note: For clients who are Medicaid recipients, personal care services are not subject to recipient cost sharing, per s. 49.45 (18) (b) 11., Stats., and the provider is prohibited from charging the recipient for services in addition to or in lieu of obtaining Medicaid payment, per s. 946.91 (5), Stats.

DHS 105.17(1w)(b)3.d. d. To participate in the planning of services, including referral to a health care institution or other provider and to refuse to participate in experimental research.

DHS 105.17(1w)(b)3.dm. dm. To have access to information about the client’s health condition to the extent required by law.

DHS 105.17 Note Note: Section 146.83, Stats., and federal HIPAA regulations [45 CFR s. 164.524] generally require health care providers to make health care records available for inspection by the patient.

DHS 105.17(1w)(b)3.e. e. To refuse service and to be informed of the consequences of that refusal.

DHS 105.17(1w)(b)3.f. f. To confidential treatment of personal and medical records and to approve or refuse their release to any individual outside the provider, except in the case of transfer to another provider or to a health facility, or as otherwise permitted by law.

DHS 105.17(1w)(b)3.g. g. To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs.

DHS 105.17(1w)(b)3.h. h. To be taught the service required so that the client can, to the extent possible, help himself or herself.

DHS 105.17(1w)(b)3.i. i. To have a person designated by the client taught the service required, so that, to the extent possible, the person designated can understand and help the client.

DHS 105.17(1w)(b)3.j. j. To have one’s property treated with respect.

DHS 105.17(1w)(b)3.k. k. To complain about the care that was provided or not provided, and to seek resolution of the complaint without fear of recrimination.

DHS 105.17(1w)(b)3.L. L. To have the client’s legal representative exercise the client’s rights when the legal representative is legally authorized to do so.

DHS 105.17(1w)(c) (c) Service agreement. Before services are provided, the personal care provider shall inform the client, orally and in writing, of the extent to which payment may be expected from other sources, the charges for services that will not be covered by other sources and charges that the individual may have to pay.

DHS 105.17 Note Note: For clients who are Medicaid recipients, personal care services are not subject to recipient cost sharing, per s. 49.45 (18) (b) 11., Stats., and the provider is prohibited from charging the recipient for services in addition to or in lieu of obtaining Medicaid payment, per s. 946.91 (5), Stats.

DHS 105.17(1w)(d) (d) Client records. Maintain all of the following records, if required in this section or s. DHS 107.112, for each client:

DHS 105.17(1w)(d)1. 1. The nursing assessment, physician prescription, plan of care, personal care worker’s assignment and record of all assignments, and record of registered nurse supervisory visits.

DHS 105.17(1w)(d)2. 2. The record of all visits by the personal care worker, including observations and assigned activities completed and not completed.

DHS 105.17(1w)(d)3. 3. Written acknowledgement of receipt by the client of the client’s rights and responsibilities, provider rules and policies, and the department statement on how to register a complaint.

DHS 105.17(1w)(d)4. 4. A copy of the discharge summary.

DHS 105.17(1w)(d)5. 5. All of the information required under s. DHS 106.02 (9) (e) 2. for each of its clients.

DHS 105.17(1w)(e) (e) Client’s preference for services. Give full consideration to a client’s preferences for service arrangements and choice of personal care workers.

DHS 105.17(1w)(f) (f) Discharge of a client.

DHS 105.17(1w)(f)1. 1. A personal care provider may discharge a client only for one or more of the reasons listed in subd. 2., 3., or 6. and only after discussing the reasons for the discharge with the client or the client’s legal representative and the client’s attending physician, when the physician has ordered personal care services, and providing written notice to the client or client’s legal representative within the timelines specified in this paragraph.

DHS 105.17(1w)(f)2. 2. The personal care provider shall provide written notice to the client or the client’s legal representative at least 10 working days in advance of the discharge if the reason for the discharge is either of the following:

DHS 105.17(1w)(f)2.a. a. The provider is unable to provide the personal care services required by the client due to either a change in the client’s conditions that is not an emergency, or the provider’s documented inability to staff the case.

DHS 105.17(1w)(f)2.b. b. Non-payment for services.

DHS 105.17(1w)(f)3. 3. The personal care provider shall provide written notice to the client or the client’s legal representative at the time of the discharge if the reason for the discharge is the result of any of the following:

DHS 105.17(1w)(f)3.a. a. The safety of the personal care worker or nurse supervisor is compromised, as documented by provider staff.

DHS 105.17(1w)(f)3.b. b. The attending physician orders the discharge of the client for emergency medical reasons.

DHS 105.17(1w)(f)3.c. c. The client no longer needs personal care service as determined by the attending physician.

DHS 105.17(1w)(f)3.d. d. The client is abusing or misusing the personal care benefit as determined by the department or county agency under s. DHS 104.02 (5).

DHS 105.17(1w)(f)4. 4. A copy of the written notice of discharge shall be placed in the client’s medical record.

DHS 105.17(1w)(f)5. 5. The personal care provider shall include all of the following in the written notice of discharge required under this paragraph:

DHS 105.17(1w)(f)5.a. a. The reason the provider is discharging the client.

DHS 105.17(1w)(f)5.b. b. The assistance the personal care provider is able to provide in arranging for continuity of all necessary personal care services.

DHS 105.17(1w)(f)5.c. c. A notice of the client’s right to file a complaint with the department if the client believes the discharge does not comply with any of the provisions of this section and the department’s toll-free complaint telephone number and the address and telephone number of the department’s division of quality assurance.

DHS 105.17 Note Note: A complaint may be filed by writing the Bureau of Health Services, Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969 or by calling the department’s toll-free complaint line at 1-800-642-6552 or by filing a complaint at http://dhs.wisconsin.gov/bqaconsumer/HealthCareComplaints.htm.

DHS 105.17(1w)(f)6. 6. No written notification is necessary for discharge for any of the following reasons:

DHS 105.17(1w)(f)6.a. a. The client dies.

DHS 105.17(1w)(f)6.b. b. The client changes place of residence to a location in an area not served by the provider.

DHS 105.17(1w)(f)6.c. c. The client or the client’s legal representative notifies the provider in writing to terminate services.

DHS 105.17(1w)(f)7. 7. The personal care provider shall complete a written discharge summary within 30 calendar days following discharge of a client or voluntary termination of services by the client or the client’s legal representative. The discharge summary shall include a description of the care provided and the reason for discharge. The personal care provider shall place a copy of the discharge summary in the former client’s medical record. Upon request, the personal care provider shall provide a copy of the discharge summary to the former client, the client’s legal representative, the attending physician, or advanced practice nurse prescriber.

DHS 105.17 Note Note: A complaint may be filed by writing the Bureau of Health Services, Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969 or by calling the department’s toll-free complaint line at 1-800-642-6552 or by filing a complaint at http://dhs.wisconsin.gov/bqaconsumer/HealthCareComplaints.htm.

DHS 105.17(1w)(h) (h) Client grievances and complaints. Provide and document a grievance mechanism to resolve clients’ complaints about personal care services, including a personal care provider’s decision not to hire a client’s choice of a personal care worker. The procedure shall set forth a procedure for clients to register complaints with the department.

DHS 105.17(2) (2) Qualifications and duties of the registered nurse supervisor.

DHS 105.17(2)(a) (a) Qualifications. A personal care provider shall employ or contract with an RN supervisor who shall have all of the following qualifications:

DHS 105.17(2)(a)1. 1. Current licensure as a registered nurse under s. 441.06, Stats.

DHS 105.17(2)(a)2. 2. Training and experience in the provision of personal care services or in a related program.

DHS 105.17(2)(a)3. 3. At least one year of supervisory or administrative experience in personal care services or in a related program.

DHS 105.17(2)(b) (b) Duties. The RN supervisor shall perform all of the following duties:

DHS 105.17(2)(b)1. 1. Assess and evaluate the need for services according to the standards of practice contained in s. N 6.03 (1) (a) and (d), and make referrals to other services as appropriate. Documentation shall be signed and dated by the RN supervisor who conducted the assessment and evaluation, attesting to its accuracy and truthfulness.

DHS 105.17(2)(b)2. 2. Secure written orders from the client’s physician. These orders are to be renewed once every 3 months unless the physician specifies that orders covering a period of time up to one year are appropriate, or when the client’s needs change, whichever occurs first. Physician orders for personal care services are not required for clients who are not Medicaid recipients unless the personal care service is a delegated act. This provision does not mitigate the RN supervisor’s responsibility to follow the standards contained in ch. N 6.

DHS 105.17(2)(b)3. 3. Develop a plan of care for the client, giving full consideration to the client’s preferences for service arrangements and choice of personal care workers, interpret the plan to the personal care worker, include a copy of the plan in the client’s health record, and review the plan at least every 60 days and update it as necessary.

DHS 105.17(2)(b)3m. 3m. Promptly notify a client’s physician or other appropriate medical personnel and legal representative, if any, of any significant changes observed or reported in the client’s condition.

DHS 105.17(2)(b)4. 4. Develop appropriate time and service reporting mechanisms for personal care workers and instruct the workers on their use.

DHS 105.17(2)(b)5. 5. Give the personal care worker written instructions about the services to be performed and arrange for an appropriate person to demonstrate to the personal care worker how to perform the services.

DHS 105.17(2)(b)6. 6. Evaluate the competency of the personal care worker to perform the services.

DHS 105.17(3) (3) Qualifications and duties of personal care workers.

DHS 105.17(3)(a) (a) Qualifications. Personal care workers shall have the following qualifications:

DHS 105.17(3)(a)1. 1. Be trained under s. DHS 105.17 (1n) (a) 2. and (b) in the provision of personal care services, and in each skill that the personal care worker is assigned.

DHS 105.17(3)(a)2. 2. Provide documentation of required training to the personal care provider for the provider’s records;

DHS 105.17(3)(a)3. 3. Be a person who is not a legally responsible relative of the client under s. 49.90 (1), Stats.

DHS 105.17(3)(a)4. 4. Have the skills, education, experience and ability to fulfill the employee’s job requirements.

DHS 105.17(3)(a)5. 5. Be at least 16 years old.

DHS 105.17(3)(b) (b) Duties. Personal care workers shall do all of the following:

DHS 105.17(3)(b)1. 1. Perform tasks assigned by the RN supervisor.

DHS 105.17(3)(b)2. 2. Report in writing to the RN supervisor on each assignment.

DHS 105.17(3)(b)3. 3. Promptly report any significant changes observed or reported in the client’s condition to the RN supervisor.

DHS 105.17(3)(b)4. 4. Confer as required with the RN supervisor regarding the client’s progress.

DHS 105.17(3)(b)5. 5. Upon coming in contact with blood or other potentially infectious materials including those that are air-borne, non-intact skin, or mucus membranes in caring for clients, practice infection control measures as recommended by the U.S. centers for disease control and prevention.

DHS 105.17(4) (4) Inspections and investigations.

DHS 105.17(4)(a) (a)

DHS 105.17(4)(a)1. 1. The department’s division of quality assurance may make any inspections and investigations, including complaint investigations, it considers necessary and may review clinical and administrative records, policies and other documents required under this section or s. DHS 107.112.

DHS 105.17(4)(a)2. 2. Any interference with or refusal to allow or cooperate with any inspection or investigation under this subsection may be grounds for termination of MA certification.

DHS 105.17(4)(b) (b) The department may contact clients of personal care providers as part of an inspection or investigation. The provider shall provide the department a list of names, addresses and other identifying information of current and past clients as may be requested. The department may select the names of the clients to be contacted and may contact these clients upon the client’s approval.

DHS 105.17(4)(c) (c) Upon determining that a personal care provider is not compliant with one or more certification requirements under this section or s. DHS 107.112, the department shall promptly notify the provider of the specific rule violated, state the facts that constitute the deficiency and specify the date by which the provider is required to correct the deficiency.

DHS 105.17(5) (5) MA application requirements; freestanding personal care agencies.

DHS 105.17(5)(a) (a) Definitions. In the section, “branch office” means a location or site from which a personal care agency provides services within a portion of the total geographic area served by the personal care agency. “Parent agency” means a personal care agency with one or more branch offices.

DHS 105.17(5)(ag) (ag) Application for MA certification. For MA certification, a freestanding personal care agency shall submit an application on forms provided by the department, and provide all information requested on the forms. The application shall be fully completed and submitted with the applicable nonrefundable fee in an amount established by the department.

DHS 105.17(5)(ar) (ar) Multiple locations. A branch office shall separately apply and be separately certified if the department determines that the branch office, because of the volume of services provided or the distance between the branch office and the parent agency, cannot adequately share supervision and administration of services with the parent agency. Each office the department finds to be necessary shall submit a separate application under this subsection and shall independently satisfy all requirements for certification set forth in this section, except that the requirements under s. DHS 105.17 (1e) (b), (1g) (a) and (b), (1n), and (1w) (h) may be satisfied by policies and practices that are adopted by the entity that owns or controls the agency, and that are applicable to all required offices of the agency. If a branch agency is not separately approved from a parent agency, the parent agency shall be deemed to be in violation of this chapter or s. DHS 107.112 if the branch is in violation.

DHS 105.17 Note Note: To obtain a copy of the application forms, send your request to the Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969. The street address is 1 W. Wilson Street in Madison. The e-mail address is: [e-mail]. The completed application forms should be sent to the same office.

DHS 105.17 Note Note: Fees are permitted under s. 49.45 (42) (c), Stats., and set and periodically revised by the Department’s Division of Quality Assurance. Fees may vary based on a number of factors including revenues from operations.

DHS 105.17(5)(b) (b) Recommendation for certification.

DHS 105.17(5)(b)1. 1. Following receipt of a complete application for MA certification or for a change in certification when there has been a change in the ownership of a personal care agency, the department shall review the application, and investigate the applicant and principals to determine the applicant’s ability to comply with this section and s. DHS 107.112.

DHS 105.17(5)(b)2. 2. Within 90 days after receiving a complete application, the department shall either approve or deny the application. Approval will be effective for a 1-year period from the date a complete application was submitted to the department.

DHS 105.17(5)(b)3. 3. The applicant shall submit a written request to the department for an on-site survey within 9 months of the date the application was approved.

DHS 105.17(5)(b)4. 4. The applicant shall show that the agency has served at least 5 clients requiring personal care services during the period of the approved application. At the time of the on-site survey, the applicant or its personnel shall demonstrate provision of personal care services to at least 2 clients.

DHS 105.17(5)(b)5. 5. If the applicant does not submit a written request for an on-site survey within 9 months of the date the application was approved, the application will no longer be valid.

DHS 105.17(5)(b)6. 6. Within 90 days following completion of an on-site survey, the department shall either recommend certification or not recommend certification of the applicant to the department’s division of medicaid services.