CR 23-046 Rule Text

DHS 1, relating to uniform fees, liability and collections:

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DHS 1.065 (1) (b) identifies the scope as it applies to children’s long-term support parental payment limits and cites to the community options program waiver under s. 46.27, Stats., which was repealed by 2019 Wis. Act 9. This paragraph should be amended to remove the reference to s. 46.27, Stats.

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DHS 1.065 (3) cites to DHS 1.03 (12) (c) and (21), both of which were repealed as part of CR 19-020. This subsection should be amended to remove references to the repealed rule sections.

DHS 10, relating to family care:

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DHS 10.11, authority and purpose, contains outdated references to statutory authority. The section should be amended to add s. 46.281 (1n) (b) 1.

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Sections DHS 10.11 (7), 10.12 (8), and 10.74 include references to hospitals in the scope and authority of the rule, which is no longer applicable following the repeal of s. 50.36 (2) by 2007 Wis. Act 20. These subsections should be amended to remove references to hospitals.

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DHS 10.13 contains numerous definitions that conflict with federal and state law. For example, s. DHS 10.13 (3) uses “infirmities of aging,” a phrase that was replaced with “degenerative brain disorder” by 2005 Wis. Act 264, and s. DHS 10.13 (16) includes a definition of “developmental disability” that is inconsistent with s. 51.01 (5) (a), which was amended by 2005 Wis. Act 264. These definitions should be amended for consistency with federal and state law.

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DHS 10.21 (1), contracting, does not include a statutory requirement that the Department may only contract with resource centers that meet the requirements of s. 46.283, Stats. This subsection should be amended to include this statutory requirement.

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DHS 10.23 (3) (a) 2. c. and 10.71 include citations to s. DHS 10.72, which was repealed via petition, CR 19-001. These provisions should be amended to remove the reference to the repealed rule section.

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DHS 10.23 (6) (a), operational requirements for resource centers, contains outreach and public education requirements that are inconsistent with the Medicaid and CHIP Managed Care Final Rule, CMS 2390-F, information requirements. This paragraph should be amended for consistency with Medicaid managed care rule information requirements.

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DHS 10.32 (1) (a) contains age eligibility conditions that are inconsistent with ss. 46.286 (1) (a) and (3) (a) 1m., Stats. The provision should be revised to clarify that the individual must be 18 years old at the time of application.

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DHS 10.33 (2) and 10.36 (1) contains references to “intermediate” and “comprehensive” levels of care that are inconsistent with s. 46.286 (1) (a). The terminology should be changed to “nursing home” and “non-nursing home” levels.

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DHS 10.36 (2) (b) includes a provision regarding a phase-out date for non-MA eligible persons in accordance with s. 46.286 (3) (d), Stats. The cited statutory provision was repealed by 2007 Wis. Act 20. This paragraph should be stricken, as should the accompanying note.

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DHS 10.42 (2), certification, is inconsistent with Medicaid managed care rule regulations, 42 CFR 438.66(d). The subsection should be revised to require an onsite managed care organization readiness review by the Department before receiving initial family care certification.

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Section DHS 10.43 (2), certification standards, contains standards that are inconsistent with 42 CFR 438.68. The rule should be revised to add time, distance, and network adequacy standards that are consistent with regulations.

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DHS 10.62, recovery of correctly paid benefits, contains estate-recovery provisions that are inconsistent with s. 49.496, Stats., and should be revised.

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DHS 10.74, requirements for resource centers, cites to hospital referrals. Hospitals are no longer within the scope of DHS 10 due to the repeal of ss. 50.36 (2) (c), and 50.38, Stats., by 2007 Wis. Act 20. The reference to hospitals should be removed.

DHS 13, relating to reporting and investigation of caregiver misconduct: Section DHS 13.05 (4) (c) includes the phrase “infirmities of aging,” which was replaced with “degenerative brain disorder” by 2005 Wis. Act 264. This subsection should be amended consistent with Act 264.

DHS 40, relating to mental health day treatment for youth: Section DHS 40.07 (2) (a) 2. requires written documentation of each staff member’s qualifications and cites to DHS 40.09 (2) to (5). Chapter DHS 40 was repealed and recreated in CR 19-018, and s. DHS 40.09 (5) no longer exists. This subdivision should be amended to remove reference to subsection (5).

DHS 82, relating to certified adult family homes: Section DHS 82.06 (2m) includes a provision regarding family care and referral that cites to s. 50.033 (2r) to (2t), which were repealed by 2007 Wis. Act 20. This subsection should be amended to remove these citations.

DHS 83, relating to community-based residential facilities:

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DHS 83.24 (3) (a) includes “emergency medical technicians” as exempt from the standard precautions training. The phrase “emergency medical technician” was replaced with “emergency medical services practitioner” in 2017 Wis. Act 12, and the paragraph should be amended to use correct terminology.

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DHS 83.30 contains a provision regarding family care information and referral that cites to s. 50.035 (4p), which was repealed by 2019 Wis. Act 9. This section should be amended to remove this reference.

DHS 89, relating to residential care apartment complexes:

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DHS 89.26 (3) (b) 2., 89.27 (3) (d), 89.34 (12), 89.35 (3), and 89.52 (1) include citations to the long-term community support options program under s. 46.27, which was repealed by 2019 Wis. Act 9. These provisions should be amended to strike this reference.

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DHS 89.29 (1m) contains provisions regarding family care information and referral that cites to “s. 50.034 (5m) to (5p), Stats.” Section 50.034 (5p) which was repealed by 2019 Wis. Act 9. This subsection should be amended to strike the reference to the repealed statutory subsection.

DHS 101, relating to Medical Assistance; introduction and definitions.

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DHS 101.03 (1) defines “access” and includes an eligibility bar of 18 months, which is more restrictive than the 12-month eligibility bar in s. 49.471 (8) (b) 2., Stats., and should be revised.

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DHS 101.03 (6), (7), (23), (65), (96) and (97) contains references to aid to families with dependent children (“AFDC”), a program which is no longer in effect. See 42 USC 1396u-1 & s. 49.015 (2), Stats. References should be amended or repealed to conform to federal and state standards.

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DHS 101.03 (8) provides a definition of “agency” that does not include a multicounty consortium under s. 49.78, Stats. The definition should be revised to include multicounty consortium.

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DHS 101.03 (15) provides a definition of “application for Medical Assistance” that is inconsistent with 42 CFR s. 435.907(a), which requires the Department to accept applications made by fax, telephone, and through the internet. The definition should be revised for consistency with these requirements.

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DHS 101.03 (17r), (17t), and (17w), refer to BadgerCare, which has been superseded by BadgerCare Plus under s. 49.471, Stats. These provisions should be amended to update the terminology and citations for BadgerCare Plus.

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DHS 101.03 (20) contains a definition of “budgetable income” that also applies to BadgerCare Plus under s. 49.471, Stats., but is not currently included. The definition should be amended for consistency with the statute.

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DHS 101.03 (23) contains a definition of “categorically needy” that is limited to eligibility for AFDC and SSI. This definition is inconsistent with federal requirements, such as 42 USC 1396a(a)(10)(A), 42 USC 1396a(e), which apply categorically needy to over 25 groups covered by federal law and the state through the Medicaid and Children’s Health Insurance Program (“CHIP”) State Plans. The definition should be amended for conformity with those federal requirements.

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DHS 101.03 (30) contains a definition of “conditional eligibility,” which does not appear anywhere in ss. DHS 101 to 109. This subsection should be repealed.

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DHS 101.03 (38) defines “deeming,” a process which also applies to BadgerCare Plus, but does not cite to s. 49.471, Stats. This provision should be amended to include a reference to s. 49.471, Stats.

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DHS 101.03 (41) includes the phrase “infirmities of aging,” which was replaced with “degenerative brain disorder” by 2005 Wis. Act 264. This subsection should be amended for consistency with Act 264.

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DHS 101.03 (52) defines “emergency medical condition” in a manner inconsistent with 42 USC 1396(v)(3). This provision should be revised for consistency with the federal definition.

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DHS 101.03 (65) defines “fiscal test group” in a manner inconsistent with 42 CFR 435.603, which does not require persons to be living in the home with other members of the fiscal test group. This provision should be amended for consistency with 42 CFR 435.603.

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DHS 101.03 (78s) includes a definition of “incapacitation” which is obsolete because the Department has opted in its State Plan to no longer require a parent to be incapacitated or unemployed to be eligible for Medicaid. This definition should be repealed.

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DHS 101.03 (94r) provides a definition of “medical expenses” that is inconsistent with 42 CFR 435.831(d), which does not limit medical expenses to persons applying for the Medicaid purchase plan (“MAPP”). The definition should be amended for consistency with 42 CFR 435.831(d).

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DHS 101.03 (95) provides a definition of “Medical Assistance” that cites to BadgerCare under s. 49.665, Stats., which is rendered obsolete by BadgerCare Plus under s. 49.471, Stats. The definition should be amended to remove the reference to s. 49.665, Stats.

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DHS 101.03 (96) provides a definition of “Medical Assistance group” that conflicts with budgeting procedures under 42 CFR 435.603. This definition should be amended for consistency with those budgeting policies.

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DHS 101.03 (97) includes a definition of “medically needy” that cites to the non-financial eligibility conditions of AFDC or SSI. This definition is inconsistent with ss. 49.47 (4) (c) 1. and 49.471 (7), Stats. and should be amended to remove the AFDC and SSI references.

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DHS 101.03 (129m) defines “presumptive eligibility” that is restricted to pregnant women, which is inconsistent with presumptive eligibility provisions in ss. 49.471 (5) (b) 2. and 49.473 (3), Stats., and 42 CFR 435.1010. The definition should be amended to include the expanded group to which presumptive eligibility applies.

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DHS 101.03 (149m) defines “qualified providers” and restricts it to determining presumptive eligibility of pregnant women, which is inconsistent with ss. 49.471 (5) (b) 2. and 49.473 (3), and 43 CFR 435.1010. This definition should be amended to include the expanded group that qualified providers can determine presumptive eligibility for.

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DHS 101.03 (152m) defines “remedial expense” and restricts it to MAPP, which is inconsistent with 42 CFR 435.831(e), and the definition should be amended to expand it to other categories.

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DHS 101.03 (170s) defines “standard maintenance allowance” based on s. 49.472 (4) (a) 2., Stats. The term does not appear anywhere in ss. DHS 101 to 109, and s. 49.472 (4) (a) 2., Stats., was repealed by 2017 Wis. Act 59. This subsection should be repealed.

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DHS 101.03 (172s) defines “substantial gainful activity,” which is not used anywhere in ss. DHS 101 to 109. This subsection should be repealed.

DHS 102, relating to Medical Assistance; application:

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DHS 102.01 (intro.) contains a citation to BadgerCare under s. 49.665, which is obsolete. Additionally, ss. 49.45 to 49.497, Stats., identify additional categories of Medical Assistance which require an application. This provision should be amended to remove the obsolete reference and update for consistency with statutes.

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DHS 102.01 (1) provides that a Medical Assistance application shall be made on a form approved by the Department. 42 CFR 435.907(a) requires the Department to accept applications submitted electronically or by phone in addition to paper forms. This subsection should be amended to include all accepted modes of application.

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DHS 102.01 (4) requires that the Department make information about applying to Medical Assistance in written form or orally. 42 CFR 435.905 requires the Department to make this information available electronically and specifies more actions that the Department must take to assist individuals who are limited English proficient. This subsection should be amended accordingly.

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DHS 102.01 (5) (a) includes special application provisions for applicants, including that 18-year-olds who are not dependents must file separate applications. BadgerCare Plus, s. 49.471, Stats., and budgeting provisions under 42 CFR 435.603(f)(3)(iv) no longer require 18-year-olds who are not dependents to file separate applications; instead, they require persons 19 years or older to do so. This paragraph should be amended to require persons 19 years or older to file separate applications.

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DHS 102.01 (5) (b) provides that unmarried couples who live together and have a child in common should have their eligibility determined together. This is inconsistent with 42 CFR 435.603(f)(1), which requires that eligibility of unmarried parents be determined separately unless one parent is tax dependent on the other. This paragraph should be amended for consistency with 42 CFR 435.603.

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DHS 102.01 (5) (h) contains provisions for determining eligibility for a minor child residing with a non-legally responsible relative. The paragraph is based on BadgerCare under s. 49.665, Stats., which was superseded by BadgerCare Plus under s. 49.471, Stats. BadgerCare Plus does not include these requirements, so the paragraph should be repealed.

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DHS 102.01 (7) includes a requirement that an application form be signed in the presence of an agency representative, but 42 CFR 435.907(a) requires the Department to accept applications submitted electronically and by phone. This section should be amended to remove this requirement.

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DHS 102.03 (1) includes verification requirements for Medical Assistance applicants. It includes an obsolete reference to BadgerCare under s. 49.665, Stats., and is inconsistent with verification exceptions provided in 42 CFR 435.952 and 42 CFR 435.956. This subsection should be amended to remove the reference to BadgerCare and update verification requirements for consistency with federal regulations.

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DHS 102.03 (3) requires that pregnancy be verified when an application is received. This is inconsistent with 42 CFR 435.956(e), which requires acceptance of self-attestation of pregnancy unless the Department has contradictory information. This paragraph should be amended for consistency with 42 CFR 435.956(e).

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DHS 102.03 (3) (c) requires verification of incapacity or unemployment for dependent child Medical Assistance eligibility. In accordance with 42 CFR 435.4—under which these verifications are no longer required—the Department has opted to exclude requirements for incapacity to be eligible for Medicaid.

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DHS 102.03 (3) (d) requires verification of social security numbers for Medical Assistance applications and eligibility. 42 CFR 435.910 and s. 49.82 (2) (b) 1., Stats., include exceptions to this requirement. This paragraph should be amended to that it is consistent with s. 49.82 (2) (b) 1., Stats., and, 42 CFR 435.910, based upon the Department’s authority under s. 49.471 (12) (a) 1. “to promulgate rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.”

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DHS 102.03 (3) includes subunits that are not formatted in accordance with the Administrative Rules Procedures Manual and should be amended to include periods at the end of each subunit. The subsection also includes verification of citizenship or alien status for Medical Assistance applications which are inconsistent with MA laws that from 2005, 2009 and 2013 that specified verification mechanisms and which individuals are responsible to verify their US citizenship. See 42 USC 1396a (a) (46) (B) and 1396b (x) (2) and 42 CFR 432.401(a)(1), 42 CFR 435.407, and 42 CFR 435.910. This section should be amended to reflect current federal law and regulations, based s. 49.84(5), which states that “A person applying for Wisconsin works under ss. 49.141 to 49.161, aid to families with dependent children under s. 49.19, medical assistance under subch. IV or food stamp program benefits under 7 USC 2011 to 2029 shall, as a condition of eligibility, provide a declaration and other verification of citizenship or satisfactory immigration status as required by the department by rule or as required in 42 USC 1320b-7 (d).” (emphasis added).

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DHS 102.04 (1) requires an agency to conduct a personal interview with an applicant. This reference is outdated, as an interview may no longer be required as a condition of eligibility for Medicaid. See 42 CFR 435.907(d). The section should be amended to remove the reference to the interview.

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DHS 102.04 (3) contains references to aid to families with dependent children (“AFDC”), a program which is no longer in effect. See 42 USC 1396u-1, s. 49.015 (2), Stats. References should be amended or repealed to conform to federal and state standards.

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DHS 102.04 contains renewal of eligibility determination requirements which are inconsistent with 42 CFR 435.916. These paragraphs should be amended to reflect current eligibility regulations.

DHS 103, relating to Medical Assistance; eligibility:

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DHS 103 contains references to aid to families with dependent children, a program which is no longer in effect. See 42 USC 1396u-1 & s. 49.015 (2), Stats. References should be amended or repealed to conform to federal and state standards.

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DHS 103.01 (1) (a) identifies persons eligible for Medical Assistance, but the list does not include new eligibility groups as provided in ss. 49.453, 49.454, 49.468, 49.471, and 49.473, Stats. The paragraph should be amended to include updated statutory citations and eligibility groups.

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DHS 103.01 (1) (b) explains that presumptive eligibility for pregnant women shall be determined under s. 49.465, Stats. Presumptive eligibility is also potentially available for children, women with breast or cervical cancer, and certain adults. See ss. 49.471 (5) (b) 2., 49.473 (3), Stats., 42 CFR 435.1010. The paragraph should be amended, and additional provisions should be created, to include these groups.

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DHS 103.03 (1) includes an outdated list of populations that are non-financially eligible for BadgerCare under s. 49.665, Stats. Paragraph (f) was based on s. 49.665 (4), Stats., which was superseded by s. 49.471 (3) (a) , Stats. The Department is permitted to “promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria” under s. 49.471 (12) (a) 1., and this paragraph should be revised for consistency with the approved CHIP state plan under ss. 49.471 (8) (b) and (c), Stats., to express income limits for children who are eligible.

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Additionally, this subsection does not correctly describe current policies regarding health insurance access and coverage under s. 49.471 (8), Stats. The subsection should be updated to include all populations that are non-financially eligible for BadgerCare Plus, and for consistency with insurance access and coverage provisions in s. 49.471 (8), Stats.

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DHS 103.03 (2) provides that U.S. citizenship is required for eligibility, with some exceptions. The section does not include citations to, or inclusion of, the groups of non-citizens who are eligible for Medicaid or CHIP under 8 USC 1611, 42 USC s. 1396b(v)(4), and 43 CFR 435.406. This subsection should be amended accordingly.

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DHS 103.03 (4) requires all applicants to have social security numbers and to furnish them to the agency upon request, with several exceptions. 42 CFR 435.910 now requires exemption from the social security number for certain immigration and religious reasons. This subsection should be amended for consistency with current federal law and regulations.

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DHS 103.04 (3) (b) includes spend-down provisions. Section 49.471 (7) (b) raised the medically needy income limits for pregnant women and children, and the paragraph should be amended for consistency with the statutes.

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DHS 103.04 (5) and (7) contain provisions regarding “irregular cases” and “special BadgerCare budgeting procedures.” These rules have been superseded by federal modified adjusted gross income group formation and budgeting procedures. See 42 CFR 435.603. These subsections should be updated to reflect current federal laws and regulations.

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DHS 103.04 (6) includes income limits for BadgerCare that are inconsistent with ss. 49.471 (4) (a) and 49.45 (23) (a), Stats. The subsection should be amended to include correct income limits for BadgerCare Plus identified in statute.

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DHS 103.04 (8) cites to s. 49.472 (3) (b) to identify the asset limit for MAPP eligibility. Section 49.472 (3) (a) added a new income deduction for out-of-pocket medical or remedial expenses, and this subsection should be amended to include citation to that statutory provision.

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DHS 103.05 (1) contains definitions of a “child-only case” involving stepparents that have been rendered obsolete under 42 CFR 435.603. This subsection should be updated to reflect these changes.

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DHS 103.05 (5) includes provisions for income limits for child-only Medical Assistance groups. These provisions are inconsistent with federal modified adjusted gross income group formation and budgeting procedures. See 42 CFR 435.603. This subsection should be amended to reflect current federal laws and regulations.

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DHS 103.06 (15) (a) 2. provides that independence accounts are exempt from calculating eligibility for MAPP. Section 49.46 (1) (em), Stats., makes independence accounts exempt from all forms of Medicaid, not just MAPP. The subdivision should be amended for consistency with s. 49.46 (1) (em), Stats.