WISCONSIN DEPARTMENT OF HEALTH SERVICES
PROPOSED ORDER TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services proposes an order to repeal DHS 131.37 (2) to (4), (5) (a) 1. to 3., (c) 1., (6), (8) (d) and (e), (17) (b), (19), (25), DHS 131.39 (4), (5) (c) 2. and (Note); to renumber DHS 131.38 (1); to amend DHS 131.18 (2) (a) 4. and 7., (4) and (title), DHS 131.20DHS 131.20(1) (1) (a), DHS 131.21 (2) (d), DHS 131.25 (6) (a) 1., (b) (intro.), and DHS 131.35 (1), (3) and (4), DHS 131.37 (5) (a), (b) .1., (d) and (e) 3., (7) (a), (c) and (title), (16) (c), (17) (a) 3., (18) (b), DHS 131.39 (5) (c) 1., (6) (a) (intro.) and (b); to repeal and recreate DHS 131.13 (3), DHS 131.18 (3), DHS 131.35 (5), DHS 131.37 (8) (b) and (c), DHS 131.39 (1); create DHS 131.13 (11m) and (20m), DHS 131.39 (5) (c) 1. (Note), (8) (Note), and DHS 131.40 to DHS 131.42, relating to Hospices.
Sections 50.91, 50.92, 50.93 and 50.95, Stats.
The Department’s authority to promulgate rules is found in ss. 50.93 (1) (c), 50.95 (1), (2), (4), (5), and (6) and 227.11 (2) (a), Stats.
Explanation of agency authority
The department is authorized to conduct plan reviews of all capital construction and remodeling of structures that are owned or leased for operation of a hospice and is required to promulgate rules that establish a fee schedule of its services in conducting the plan reviews.
The department is also required to promulgate rules establishing standards for the care, treatment, health, safety, rights, welfare and comfort of individuals with terminal illness, their families and other individuals who receive palliative care or supportive care from a hospice and the maintenance, general hygiene and operation of a hospice, which will permit the use of advancing knowledge to promote safe and adequate care and treatment for these individuals.
The standards must permit provision of services directly, as required under 42 CFR 418.56, or by contract under which overall coordination of hospice services is maintained by hospice staff members and the hospice retains the responsibility for planning and coordination of hospice services and care on behalf of a hospice client and his or her family, if any.
Within certain parameters, the department is also authorized to promulgate rules interpreting the provisions of any statute it enforces or administers, if the department considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Plain language analysis
Prior to 2015 Wisconsin Act 55 (“Act 55”), hospices were required to submit a fee and plan of review to the Department of Safety and Professional Services (DSPS) for any capital construction or remodeling of structures owned or leased for operation of a hospice. Act 55 created s. 50.92 (3m), Stats., which assigned this responsibility to the Department of Health Services (“department”) and directed the department to promulgate rules establishing a fee schedule for plan reviews. The department proposed to revise the rule to establish a fee schedule for plan reviews and to update, correct, or remove any outdated rule provisions or cross-references. In addition, the department proposes to update outdated standards relating to discharge planning, patient assessment, physician’s orders, bereavement services and physical environment.
The proposed rule also incorporates the NFPA 72-2013 edition. Consent to incorporate the standards was given in writing by the Attorney General, pursuant to s. 227.21 (2) (a), Stats., on October 2, 2019.
2a. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
Pursuant to ss. 50.92 (3m) and 50.95, Stats., the department proposes to amend ch. DHS 131 as follows:
Currently, a hospice may discharge an individual for a variety of reasons including nonpayment of charges and for the patient’s safety and welfare and for the safety and welfare of others. The department proposes to clarify when these options may be taken and to provide notice to the patient of such action.
Currently, a hospice is required to obtain the physicians’ counter-signature within 20 days of receipt of the oral order. The department proposes to change the standard to “20 working days” to be consistent with ch. DHS 133, Home health agencies. DHS 133.05(1)(d)At times, it can be difficult to reach the physician. There is no federal requirement in this area.
Currently, the individual who coordinates bereavement services and provides for the bereavement needs of families is appointed by the governing body. The department proposes to allow the hospice to appoint this individual based on the person’s training and experience.
Currently, a hospice is required to complete an initial assessment of a patient’s condition and needs before providing services. Due to the condition of the patient, the registered nurse is usually assessing and providing services simultaneously, often in the patient‘s home. The department proposes to change the standard to allow for the assessment and the provision of services to occur at the same time.
Currently, several physical environment standards are outdated, duplicative of other regulations or overly prescriptive. The department proposed to eliminate requirements related to bed arrangement in patient rooms, ceiling height, electrical outlets, number of toilets and sinks, and zoning requirements.
Plan review and fees for plan reviews
2015 Wisconsin Act 55 created s. 50.92 (3m), Stats., which assigned this responsibility to the department and directed the department to promulgate rules establishing a fee schedule for plan reviews. Chapter DHS 131 is revised to establish a fee schedule for plan reviews and to update, correct, or remove any outdated rule provisions or cross-references.
2b. Analysis of policy alternatives
There are no reasonable policy alternatives. 2015 Wisconsin Act 55 created s. 50.92 (3m), Stats., which assigned this responsibility to the Department of Health Services (“department”) and directed the department to promulgate rules establishing a fee schedule for plan reviews. The department therefore intends to revise ch.DHS 131 to establish a fee schedule for plan reviews and to update, correct, or remove any outdated rule provisions or cross-references.
The department could choose to propose voluntary guidelines for hospices, rather than establishing standards by rule. However, this alternative is not reasonable because voluntary compliance with such guidelines would prevent the department from ensuring consistency in the standard of care provided to vulnerable clients.
Summary of, and comparison with, existing or proposed federal regulations
Title 42 CFR 418 contains the Federal Medicare Hospice Conditions of Participation. These regulations establish conditions and standards for the operation of hospices that primarily provide palliative and supportive care to an individual with terminal illness where he or she lives and if necessary arranges for or provides short-term inpatient care and treatment or respite care. State regulations are comparable and the intent of these regulations is to foster safe and adequate care and treatment of patients by hospice agencies. There are no federal regulations for governing plan review.
Comparison with rules in adjacent states
Illinois licensure law for hospices is found in Title 77, Chapter I, subchapter b, Part 280 Hospice Programs. Illinois State Code requires that all hospices be licensed and offer the required services of nursing, medical social work, spiritual counseling, bereavement and volunteer services. These services must be available on a 24-hour basis to the extent necessary to meet the needs of individuals for care that is reasonable and necessary for the palliation and management of terminal illness and related conditions. A hospice patient’s plan of care must be established and maintained for each individual admitted to a hospice program and the services provided to an individual must be in accordance with the person’s plan of care. Bereavement services may be coordinated with the family’s clergy, if any, as well as with the other community resources judged by the hospice care team to be useful to the family unless the family declines. The hospice must ensure that each patient has an attending physician. The hospice program must have each patient or his or her representative complete and sign a form indicating the name of the attending physician responsible for the patient’s care. Hospices that provide residential services must submit drawings for the proposed hospice residence for review and must be in compliance with the requirements of the NFPA 101, Chapter 33, Existing Board and Care Occupancies.
A hospice must be in full compliance with the local building codes and fire safety protection requirements. Additional standards are provided related to exits, number of patients per bedroom, toilet and bathroom facilities, isolation areas, waste disposal, water supply, sewage disposal and plumbing systems.
Iowa hospice regulations consist of Iowa Administrative Code 481, Chapter 53 Hospice License Standards. Services provided to the hospice patient and his or her family include, nursing services, patient care coordination, social services, counselling services, volunteer services, spiritual counseling and bereavement services. The patient or family must designate an attending physician who is responsible for managing necessary medical care. The attending physician is responsible for the medical component of the plan of care, participating in developing and revising the plan of care, arranging for continuity of the medical management and monitoring the condition of the patient and family. Prior to or on the day of admission, the attending physician and at least one member of the interdisciplinary team must develop a initial plan based on the needs of the patient and family. Within seven days of admission the interdisciplinary team must assess the needs of the patient and family and develop a comprehensive written plan of care. Bereavement services must be available to each family after the death of the patient and must be provided in accordance with family needs. Bereavement series must include identification of the types of help or intervention to be provided, contact with the family after the death as requested by their needs as documented in the plan of care, a process to assess family reaction and hospice referrals for intervention deemed appropriate.
Michigan regulates hospices in Hospice and Hospice Residences R 325. At the time of admission to a hospice, the patient must be under the care of a physician who is responsible for providing medical care. The hospice’s must enter all physician orders and services rendered in the patient and family record. The hospice registered nurse must complete an initial assessment of the patient’s condition within 48 hours after the election of hospice care. The interdisciplinary group must complete a comprehensive assessment no later than five calendar days after the election of hospice care and identify the patient’s immediate physical, psychosocial, emotional and spiritual needs. The development of comprehensive patient care plan of care for each hospice patient and family must commence within 24 hours of admission. Bereavement and spiritual services must be available seven days a week and must be available to the family for not less than 13 months following the death of the patient. All plans, specification and operation narratives of new buildings, additions, major building changes and conversion of existing facilities to use as a hospice residence shall be submitted to the Department of Licensing and Regulatory Affairs for review to assure compliance with the laws and rules for Hospice and Hospice Residences. The Department of Licensing and Regulatory Affairs must approve plans and specifications if they meet the requirements of section 20145 of the code, MCL 333.20145, and these rules for Hospice and Hospice Residences. Construction of new buildings, additions and major building changes and conversion may not begin until the plans and specification have been approved by the department and a construction permit has been issued for the construction to begin. Additional standards are provided for resident bedrooms, light fixtures, toilet and bathing facility, nurse call system and isolation rooms. The water system, and the disposal of sewage and liquid and solid waste must be in compliance with state regulation. Fire safety and disaster planning must comply with sections 20156 and 21413 (3) (c) of 1978 PA 368, MCL 333.20156 and 333.20156 and 333.21413 (3) (c).
Minnesota regulates hospices in Minn. Stat. 4664. No hospice may accept a person as a hospice patient unless the licensee has staff sufficient to qualifications and numbers to adequately provide hospice services. If the licensee discharges or transfers a hospice patient, the reason for the discharge or transfer must be documented in the clinical record and include the reason why the transfer is necessary and why the patient’s needs cannot be met by the hospice. A written notice must be given to the patient or responsible person at least ten days in advance of termination of services. The hospice provider must ensure that each hospice patient and hospice patient’s family has a current assessment. The assessment must address the physical, nutritional, emotional, social, spiritual, pain, symptom management, medication and social needs of the hospice patient and hospice patient’s family during the final stages of illness, dying and bereavement. Counseling services must be adequate in frequency to meet the needs of the patient and the patient’s family. The hospice provider must provide a planned program of supportive services and bereavement counseling under the supervision of a qualified professional according to the qualifications identified by hospice policy. The service must be available to families following the death of the hospice patient. Physical services must be available and adequate in frequency to meet the general medical needs of the hospice patient to the extent that these needs are not met by the attending physician.
Summary of factual data and analytical methodologies
The department formed an advisory committee composed of representatives of the Hospice Organization and Palliative Experts (HOPE) of Wisconsin and hospices. Representatives from these organizations were provided a copy of the initial draft of the rule and asked for comments. The department also solicited information and advice from individuals, businesses, associations representing businesses, and local governmental units who may be affected by the proposed rule for use in analyzing and determining the economic impact that the rules would have on businesses, individuals, public utility rate payers, local governmental units, and the state’s economy as a whole from 05/28/19-06/11/19. The department received no comments.
Analysis and supporting documents used to determine effect on small business
See Fiscal Estimate & Economic Impact Analysis.