The Wisconsin Department of Health Services proposes an order to: repeal ss. DHS 90.05 (4) (a) 2. (Note 1), 90.06 (1) (a) (Note) and (1m) (Note), 90.07 (3) (c) 2. (Note), 90.12 (5) (b) 3. (Note), (6) (a) 2. c. (Note), and (6) (b) (Note); 103.085 (3) (b) 2. and (6); 104.01 (9) (b) 2. g., 104.02 (1) (Note), 106.06 (27), 107.06 (4) (e), 107.09 (4) (v), 107.30 (3) (b) and (Note), 152.02 (25); 250.03 (1), and 251.03 (13); consolidate, renumber and amend s. DHS 103.085 (3) (b) (intro) and 1. a. to d.; amend ss. DHS 90.06 (1) (a), Table: Assignment of Parental Cost Share (Note), and (2) (o) 2., 90.07 (3) (b) (Note), 90.10 (5) (f) 4. a. and 5. b., 90.12 (3) (g), 90.12 (4) (a), (4) (b) 1., (5) (c), and (6) (d) 4. d., 103.04 (7) (d), 104.01 (3), 104.02 (1), 105.02 (5), 105.16 (6) (a) (intro.), 105.19 (1) (b), 105.22 (1) (b) and (3), 105.23 (1) (c), 105.39 (4) (b) 2. 107.03 (12), 107.112 (2) (a) and (4) (e); 107.13 (2) (d) 1.; 107.24 (2) (c) 1. and 4. to 6.; 109.03 (12); and 250.06 (1) (a); and create ss. DHS 105.22 (1) (bn) to (br); and 250.03 (15), relating to biennial review. RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
Under s. 227.29 (1) (a) to (e), Stats., the Department is required to complete an agency review of rules on a biennial basis and make changes to rules that are: unauthorized rules, as defined in s. 227.26 (4) (a), Stats., together with a description of the legislation that eliminated the agency's authority to promulgate any such rule; rules for which the authority to promulgate has been restricted, together with a description of the legislation that restricted that authority; rules that are obsolete or that have been rendered unnecessary, together with a description of why those rules are obsolete or have been rendered unnecessary; rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a citation to or the text of any such statute, regulation, or ruling; or rules that the agency determines are economically burdensome.. Related statute or rule
Plain language analysis
The Department has identified needed administrative rule changes under s. 227.29, Stats., and based upon information provided to the Department by the Legislative Reference Bureau. The department proposes the following rule changes:
1. Chapter DHS 90, relating to early intervention services. The proposed rulemaking seeks to: (1) outdated provisions that are inconsistent with 34 CFR 303 regarding how to submit complaints; (2) revise provisions for written transition plan timelines, contents of permanent records, parent access to early intervention records, procedures for appointing mediators to resolve disputes regarding early intervention evaluation processes or determinations; and timelines for written decisions following a hearing to resolve an evaluation or determination dispute; (3) remove outdated references to s. 46.985, Stats., and ch. DHS 65, which have been repealed, and replace those references with appropriate authority; and (4) remove outdated department contact information.
2. Chapter DHS 103, relating to medical assistance eligibility. The proposed rulemaking seeks to: (1) revise eligibility standards for recipients under 19 years old for consistency with federal modified adjusted gross income rules and 42 CFR 435.603; and (2) Remove provisions relating to eligibility lock-out periods that are outdated inconsistent with 42 CFR 457.10 and 457.570, and maximum income requirements that are inconsistent with s. 49.471 (4) (a) 4. b., Stats.
3. Chapter DHS 104, relating to recipient rights and duties. The proposed rulemaking seeks to remove duplicative, superseded, or conflicting provisions describing confidentiality of medical information, mailing written notice to AFDC children, and an exception to recipient duties to not seek same or similar services from more than one provider. Citations to outdated statutory provisions would be removed, and references to 42 CFR 2 and ss. 146.81 to 146.83, Stats will be added to confidentiality sections.
4. Chapter DHS 105, relating to provider certifications. The proposed rulemaking seeks to: (1) expand the type of providers that participate is surveys conducted for research and MA policy purposes, consistent with CMS-2345-FC; (2) remove an outdated references to ch. Med 20 in home health agency certification and respiratory care service requirements; (3) remove psychotherapy and AODA treatment provider certification requirements that were superseded by s. 49.45 (30f), Stats; and (4) replace “emergency medical technician,” with “emergency medical services practitioner,” in accordance with 2017 Wis. Act 12.
5. Chapter DHS 106, relating to provider rights and responsibilities. The proposed rulemaking will repeal an outdated provision describing involuntary termination or suspension of a provider for refusal to purge a contempt order, which is unauthorized following the repeal of s. 49.45 (3) (h) 1., Stats.
6. Chapter DHS 107, relating to covered services. The proposed rulemaking seeks to: (1) remove outdated references to DHS 107.06 (4) (d) relating to mental health services, and update with reference 49.45 (29y), Stats.; (2) remove outdated requirements for, or restrictions on, a second surgical opinion, which were superseded by 2005 Wis. Act 25; (3) remove a provision describing reduction in MA payments when an institution for mental disease resident is relocated to the community, for which the statutory authority was repealed by 2015 Wis. Act 5; (4) amend prior authorization for services requirements to comport with s. 49.45 (42), Stats.; (5) remove requirements that categories of durable medical equipment be used in a recipient’s home, which is inconsistent with CMS-2348-F;
7. Chapter DHS 109, relating to senior care. The proposed rulemaking seeks to remove an additional 5% from the program payment rate, which was struck from s. 49.688 (1) (e) by 2009 Wis. Act 28.
8. Chapter DHS 152, relating to reimbursement for treatment of chronic renal disease. The proposed rulemaking seeks to repeal a provision defining “resident” in accordance with s. DWD 11.15, which has been repealed.
9. Chapter DHS 250, relating to tribal medical relief programs. The proposed rulemaking seeks to: (1) repeal a provision defining or referring to “AFDC,” a program which was replaced by the Wisconsin Works program; and (2) create a provision defining “Wisconsin Works” and replace any references to AFDC with Wisconsin Works.
10. Chapter DHS 251, relating to county relief programs. The proposed rulemaking seeks to repeal a provision defining relief block grants, for which the statutory authority was repealed in 2011 Wis. Act 28.
Summary of, and comparison with, existing or proposed federal regulations
Not applicable – The proposed rule order is based on requirements set forth in s. 227.29, Stats. Comparison with rules in adjacent states
Illinois:
Not applicable – The proposed rule order is based on requirements set forth in s. 227.29, Stats. Iowa:
Not applicable – The proposed rules order is based on requirements set forth in s. 227.29, Stats. Michigan:
Not applicable – The proposed rule order is based on requirements set forth in s. 227.29, Stats. Minnesota:
Not applicable – The proposed rule order is based on requirements set forth in s. 227.29, Stats. Summary of factual data and analytical methodologies
The Department relied upon requirements under s. 227.29, Stats., and information provided to the Department by the Legislative Reference Bureau. Analysis and supporting documents used to determine effect on small business
The department’s fiscal estimate and economic impact analysis determined that the proposed rules would not have any effect on small businesses.
Effect on small business
The rules are anticipated to have no economic impact on small businesses.
Agency contact person
Statement on quality of agency data
See “summary of factual data and analytical methodologies” section above.
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 notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 90.05 (4) (a) 2. (Note 1) is repealed.
SECTION 2. DHS 90.06 (1) (a) is amended to read:
DHS 90.06 (1) (a) “Annual income after disability deductions” means the annual parental income less a deduction of $3,300 for each member of the family participating in the birth to 3 program and each child under 19 years of age with a disability as defined in s. DHS 65.02 (5)s. 46.272 (1) (b), Stats. SECTION 3. DHS 90.06 (1) (a) (Note) and (1m) (Note) are repealed.
SECTION 4. DHS 90.06 Table: Assignment of Parental Cost Share (Note) is amended to read:
DHS 90.06 Table: Assignment of Parental Cost Share Note: The federal poverty guidelines are adjusted yearly and are published annually in the Federal Register. The department will distribute the applicable federal poverty guidelines information that is effective each year. To receive the current Federal Poverty Guidelines, contact the Birth to 3 Program Coordinator at the Division of Disability and Elder Services, P.O. Box 7851, Madison, WI 53707, or call 608−266−8276, or fax 608−261−6752.
SECTION 5. DHS 90.06 (2) (o) 2. is amended to read:
DHS 90.06 (2) (o) 2. The early intervention record is kept separate from other records on the child maintained by the agency unless the parent specifically agrees in writing that another record and the early intervention record be kept together. Other records Records that might be kept with the early intervention record are the family support assessment and plans include an individual service plan under s. 46.985, Stats., and ch. DHS 65, and the community options program assessment under s. 46.27 (6), Stats the programs established in ss. 46.011 (1g) and 46.272, Stats. Note: Section 46.985, Stats., was repealed by 2015 Wis. Act 55 rendering Chapter DHS 65 unenforceable and without effect. Chapter DHS 65 will be repealed in future rulemaking. SECTION 6. DHS 90.07 (3) (b) (Note) is amended to read:
DHS 90.07 (3) (b) (Note): Referral sources should differentiate between a request or need for a formal screening and referral for an evaluation. For example, a child diagnosed as having Down syndrome, which has a high probability of resulting in a developmental delay, should be referred for an evaluation rather than a formal screening, whereas a child who seems slow in speech or motor development may first be formally screened to determine if there is need for an evaluation.
SECTION 7. DHS 90.07 (3) (c) 2. (Note) is repealed.
SECTION 8. DHS 90.10 (5) (f) 4. a. and 5. b. are amended to read:
DHS 90.10 (5) (f) 4. a. Prepare At least 90 days but not more than 9 months before the child reaches age 3, prepare a written transition plan to reflect decisions made at the conference and the roles of sending and receiving agencies; and
DHS 90.10 (5) (f) 5. b. Prepare At least 90 days but not more than 9 months before the child reaches age 3, prepare a written transition plan to reflect decisions made
at the conference and the role of sending and receiving agencies.
SECTION 9. DHS 90.12 (3) (g) is amended to read:
DHS 90.12 (3) (g) The county administrative agency shall inform the parent when personally identifiable information contained in the early intervention record is no longer needed to provide early intervention services. The information shall be destroyed at the request of the parent except that a permanent record of the child’s name, date of birth, the parent’s address, the parent’s phone number, and dates of enrollment in the program names of service coordinators and service providers, and exit data, including year and age upon exit and any programs entered into upon exiting, may be maintained. In this paragraph, “destruction” means physical destruction or removal of personally identifiable information from the early intervention record.
SECTION 10. DHS 90.12 (4) (a) is amended to read:
DHS 90.12 (4) (a) The parent of a child may review all early intervention records concerning the child unless the county administrative agency has been advised provided documentation that the parent does not have the authority under state law to review a record under state law governing such matters as custody, foster care, guardianship, separation and divorce.
SECTION 11. DHS 90.12 (4) (b) 1. is amended to read:
DHS 90.12 (4) (b) 1. Make the records available to the parent without unnecessary delay but not later than 15 working10 days following the date of the request except that, if the request is in connection with a meeting on the individualized family service plan or a hearing to resolve a dispute or complaint involving the parent and the county agency or service provider, the records shall be made available at least 5 days before the meeting or hearing but in no case later than 15 working10 days following the date of the request;
SECTION 12. DHS 90.12 (5) (b) 3. (Note) is repealed.
SECTION 13. DHS 90.12 (5) (c) is amended to read:
DHS 90.12 (5) (c) Appointment of mediator. 1. a. A party that requests mediation may nominate a mediator from the roster under par. (d). If a party nominates a mediator, the department shall include in the notice under par. (b) 1. the name of the nominated mediator.
b. If both parties nominate the same person as mediator, the department shall appoint that person as mediator if he or she is on the roster under par. (d) and available to mediate.
c. If both parties request mediation but neither party nominates a mediator, the department shall propose a mediator from the roster under par. (d).
d. If both parties consent to mediation but the party that requests mediation does not nominate a mediator, the nominated mediator is not available or the other party does not consent to the appointment of the nominated mediator, the department shall propose a mediator from the roster under par. (d).
2. Whenever the department proposes a mediator under subd. 1. c. or d., the department shall send information about the mediator’s training and experience to both parties. Within 2 business days after receiving the information, either party may request the department to propose a different mediator from the roster under par. (d).
3. Both parties may agree to use a mediator not listed on the roster in par. (d). If the parties choose a non−roster mediator, the parties shall agree to pay the compensation of that mediator as provided in par. (g) 3.The department shall select mediators on a random, rotational, or other impartial basis.
SECTION 14. DHS 90.12 (6) (a) 2. c. (Note) is repealed.
SECTION 15. DHS 90.12 (6) (b) (Note) is repealed.
SECTION 16. DHS 90.12 (6) (d) 4. d. is amended to read:
DHS 90.12 (6) (d) 4. d. Issue a written decision, and mail it to both parties and to the state birth to 3 program coordinator not later than 4530 days after receipt of the request for hearing under par. (b), unless granting an extension of the time period limit at the request of either party. If an extension is granted, the impartial decision−maker shall include that extension and the reason for it in the hearing record; and
SECTION 17. DHS 103.04 (7) (d) is amended to read:
DHS 103.04 (7) (d) 18Case of a person under 19 years old. An 18Any person under 19 years old who resides with a parent or parents may must include the parents in the BadgerCare application.
SECTION 18. DHS 103.085 (3) (b) (intro) and 1. a. to d. are consolidated and renumbered (3) (b) 1. to 4. and amended to read:
DHS 103.085 (3) (b) Reasons restriction on re-enrollment may not apply. The restriction on re-enrollment under this section does not apply for either of the following reasons:1. The if the failure to pay premiums was due to a circumstance beyond the group's control, provided that all past due premiums have been paid in full. A circumstance beyond the group's control includes any of the following:
a1. A problem with an electronic funds transfer from a bank account to the BadgerCare program.
b2. A problem with an employer's wage withholding.
c3. An administrative error in processing the premium.
d4. Any other circumstance affecting payment of the premium which the department determines is beyond the group's control, but not including insufficient funds.
SECTION 19. DHS 103.085 (3) (b) 2. is repealed.
SECTION 20. DHS 103.085 (6) is repealed.
SECTION 21. DHS 104.01 (3) is amended to read:
DHS 104.01 (3) CONFIDENTIALITY OF MEDICAL INFORMATION. Information about recipients shall be confidential and only disclosable in accordance with ss. 146.81 to 146.83, Stats 42 CFR pt. 2 and ss. 146.81 to 146.83, Stats. No privilege exists under MA regarding communications or disclosures of information requested by appropriate federal or state agencies or their authorized agents concerning the extent or kind of services provided recipients under the program. The disclosure by a provider of these communications or medical records, made in good faith under the requirements of this program, shall not create any civil liability or provide any basis for criminal actions for unprofessional conduct. SECTION 22. DHS 104.01 (9) (b) 2. g., is repealed.
SECTION 23. DHS 104.02 (1) is amended to read:
DHS 104.02 Recipient duties. (1) NOT TO SEEK DUPLICATION OF SERVICES. A recipient may not seek the same or similar services from more than one provider, except as provided in s. DHS 104.04.
