Plain language analysis
The intent of the proposed rule is to take action permitted under s. 105 (1) of Act 185, and thereby qualify for increased federal funding under s. 6008 of the FFCRA. Section 6008 of the FFCRA provides a temporary 6.2 percentage point federal medical assistance percentage (“FMAP”) increase to each state that maintains continuous eligibility for persons enrolled in Medicaid (unless the person leaves the state or requests disenrollment) during the federal emergency period defined in par. (1)(B) of s. 1135(g) of the Social Security Act, 42 USC 1320-5(g), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. The increased FMAP provided to the state under the FFCRA amounts to up to $150 million per quarter. On April 17, 2020, Act 185 became effective. Section 105 (1) of Act 185 provided that, in order to comply with section 6008 of the FFCRA and obtain an enhanced medical assistance percentage from the federal government, the state may suspend certain Medicaid requirements and maintain continuous Medicaid eligibility for those who were enrolled on March 18, 2020 or later, unless that person requested disenrollment or lost state residency.
The first federal emergency declaration took effect in January 2020. That declaration has been renewed several times, and the public health emergency remains in effect through January 16, 2022. The United States Secretary of Health And Human Services has authority to extend the emergency period beyond January 16, 2022.
Several measures have been taken in accordance with Act 185 in order to comply with s. 6008 of FFCRA. In May 2020, Governor Evers and then-Department-Secretary-designee Palm issued Emergency Order 35, which ordered the suspension of a number of administrative rules which contained requirements that could result in Medicaid recipients being disenrolled during the federal public health emergency. The Governor’s public health emergency subsequently expired, which effectively nullified Emergency Order 35. Following the expiration of Emergency Order 35, the Department, in accordance with s. 227.24, Stats., promulgated emergency rule 2040 (“EmR2040”), which suspended provisions in ch. DHS 10 in order to comply with s. 6008 of FFCRA. EmR2040 was extended for the maximum 120 days allowed under s. 227.24 (2), Stats., and expired on July 20, 2021. In order to continue complying with section 6008 of the FFCRA and to receive up to $150 million in federal funding per quarter, the Department has determined that, in light of the ongoing need to suspend rule provisions to comply with s. 6008 of the FFCRA, permanent rules that supplant the emergency rule currently in effect and temporarily suspend certain Medicaid eligibility provisions are necessary so that the Department maintains continuous enrollment in Medicaid during the declared emergency period. The permanent rule will create sunset provisions that seek to amend or create provisions in ch. DHS 10 specific to maintaining continuous enrollment, and then repeal those provisions after the end of the federal public health emergency. Additionally, the rule seeks to align with federally-approved program changes permitted under s. 105 (10) (a) of Act 185, which authorized the Medicaid program to amend program waivers in response to the COVID-19 pandemic. The Family Care program operates under concurrent 1915(b) and 1915(c) waivers, as described by section 1915 of the Social Security Act. See 42 USC 1396n(b)-(c). Based on s. 105 (10) (a) of Act 185, the Department requested, and the Centers for Medicare and Medicaid Services approved, an amendment to the Family Care 1915(c) waiver. This waiver amendment, known as Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum, is in effect from March 1, 2020 to no later than six months after the expiration of the federal public health emergency. Summary of, and comparison with, existing or proposed federal regulations
In order to qualify for increased federal funding under s. 6008 of the FFCRA, states are required to maintain continuous Medicaid eligibility for persons enrolled in Medicaid, unless the person leaves the state or requests disenrollment.
Additional Family Care program flexibilities implemented to protect against and control the spread of communicable diseases have been explicitly granted by the Centers for Medicare & Medicaid Services through the approval of the Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum to the 1915(c) Family Care program waiver. The Family Care program is unique to Wisconsin. Adjacent states administer their own versions of home and community-based services programs through 1915(c) waivers and have received similar flexibilities through Appendix K: Emergency Preparedness and Response and COVID-19 Addenda.
Comparison with rules in adjacent states
Illinois:
Illinois will similarly need to maintain continuous Medicaid eligibility for persons enrolled in Medicaid in order to gain increased federal funding made available under s. 6008 of the FFCRA. Additionally, it has received federal authority to allow for electronic signatures and virtual/remote meetings in lieu of face-to-face assessment interviews through a 1915(c) waiver Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum.
Iowa:
Iowa will similarly need to maintain continuous Medicaid eligibility for persons enrolled in Medicaid in order to gain increased federal funding made available under s. 6008 of the FFCRA. Additionally, it has received federal authority to allow for electronic signatures and virtual/remote meetings in lieu of face-to-face assessment interviews through a 1915(c) waiver Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum.
Michigan:
Michigan will similarly need to maintain continuous Medicaid eligibility for persons enrolled in Medicaid in order to gain increased federal funding made available under s. 6008 of the FFCRA. Additionally, it has received federal authority to allow for electronic signatures and virtual/remote meetings in lieu of face-to-face assessment interviews through a 1915(c) waiver Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum.
Minnesota:
Minnesota will similarly need to maintain continuous Medicaid eligibility for persons enrolled in Medicaid in order to gain increased federal funding made available under s. 6008 of the FFCRA. Additionally, it has received federal authority to allow for virtual/remote meetings in lieu of face-to-face assessment interviews through a 1915(c) waiver Appendix K: Emergency Preparedness and Response and COVID‑19 Addendum.
Summary of factual data and analytical methodologies
The Department relied upon requirements under ch. 227, Stats., and information provided to the Department by the Legislative Reference Bureau. Analysis and supporting documents used to determine effect on small business
The emergency rule is not anticipated to have an effect on small business. See the associated Fiscal Estimate & Economic Impact Analysis.
Effect on small business
The rule is not anticipated to have an effect 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 10.31 (4) (b) is amended to read:
DHS 10.31 (4) (b) Signing the application. The applicant or the applicant’s legal guardian, authorized representative or, where the applicant is incapacitated, someone acting responsibly for the applicant, shall sign each application form. in the presence of a representative of the agency. The signatures of 2 witnesses are required when the applicant signs the application with a mark The signature may be provided using electronic methods identified by the department as constituting a signature.
SECTION 2. DHS 10.31 (4) (b), as affected by this rule, is amended to read:
DHS 10.31 (4) (b) Signing the application. The applicant or the applicant’s legal guardian, authorized representative or, where the applicant is incapacitated, someone acting responsibly for the applicant, shall sign each application form .The signature may be provided using electronic methods identified by the department as constituting a signature. in the presence of a representative of the agency. The signatures of 2 witnesses are required when the applicant signs the application with a mark.
SECTION 3. DHS 10.32 (4) is amended to read:
DHS 10.32 (4) Review of eligibility. Enrollees' eligibility for the family care benefit shall be re-determined annually or more often when a county agency has information indicating that a change has occurred in an enrollee's circumstances that would affect his or her eligibility or cost sharing requirements. This subsection shall not be enforced until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 4. DHS 10.32 (4), as affected by this rule, is amended to read:
DHS 10.32 (4) REVIEW OF ELIGIBILITY. Enrollees' eligibility for the family care benefit shall be re-determined annually or more often when a county agency has information indicating that a change has occurred in an enrollee's circumstances that would affect his or her eligibility or cost sharing requirements. This subsection shall not be enforced until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 5. DHS 10.34 (4) (a) is amended to read:
DHS 10.34 (4) (a) Except as provided in par. (b), a person who is required to contribute to the cost of his or her care but who fails to make the required contributions is ineligible for the family care benefit. Individuals who do not make the required contributions under this paragraph shall not be deemed ineligible for the family care benefit until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 6. DHS 10.34 (4) (a), as affected by this rule, is amended to read:
DHS 10.34 (4) (a) Except as provided in par. (b), a person who is required to contribute to the cost of his or her care but who fails to make the required contributions is ineligible for the family care benefit. Individuals who do not make the required contributions under this paragraph shall not be deemed ineligible for the family care benefit until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 7. DHS 10.44 (2) (e) is amended to read:
DHS 10.44 (2) (e) The CMO shall use assessment protocols that include a face−to−face an interview with the enrollee and that comprehensively assess and identify all of the following:
SECTION 8. DHS 10.44 (2) (e), as affected by this rule, is amended to read:
The CMO shall use assessment protocols that include an a face−to−face interview with the enrollee and that comprehensively assess and identify all of the following:
SECTION 9. DHS 10.45 (2) (b) is amended to read:
DHS 10.45 (2) (b) A CMO may not disenroll any enrollee except under circumstances specified in its contract with the department and the express approval of the department, unless the enrollee has requested to be disenrolled. When a CMO requests department approval to disenroll an enrollee, the CMO shall refer the enrollee to the resource center for counseling under s. DHS 10.23 (2) (j). A CMO may not encourage any enrollee to disenroll. This paragraph shall be suspended until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 10. DHS 10.45 (2) (b), as affected by this rule, is amended to read:
DHS 10.45 (2) (b) A CMO may not disenroll any enrollee except under circumstances specified in its contract with the department and the express approval of the department, unless the enrollee has requested to be disenrolled. When a CMO requests department approval to disenroll an enrollee, the CMO shall refer the enrollee to the resource center for counseling under s. DHS 10.23 (2) (j). A CMO may not encourage any enrollee to disenroll. This paragraph shall be suspended until the first day of the month following the end of the emergency period defined in par. (1)(B) or s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 11. Effective dates. In accordance with s. 227.22 (2) (intro.), Stats., these rules shall take effect on the first day of the month following publication in the administrative register, except as follows: Sections 2 and 8 of this rule order shall take effect upon the termination of the Appendix K: Emergency Preparedness and Response and COVID-19 Addendum to the 1915 (c) Family Care program waiver.
Sections 4, 6, and 10 of this rule order shall take effect on the first day of the month after the emergency period, as defined in s. 1135 (g) (1) (b) of the Social Security Act, 42 U.S.C. 1320b-5 (g) (1) (B) and declared in response to the COVID-19 pandemic, ends.
