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.
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.
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.
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.
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 The paragraph is based on BadgerCare under s. 49.665, Stats., which was superseded by BadgerCare Plus under s. 49.471, Stats. BadgerCare Plus does not include these requirements, so the paragraph should be repealed.
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.
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.
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).
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.
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.”
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).
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
DHS 103.085 and the accompanying table include conditions for continuation of eligibility for BadgerCare that are based on s. 49.665(5), Stats., which was superseded by s. 49.471 (3) (a), Stats., and 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., Stats. These provisions should be revised for consistency with the approved CHIP state plan and premium provisions under s. 49.471 (10) (b), Stats. Premium amounts reflect the per member, per month costs for children when BadgerCare Plus was implemented in 2008. Current Federal law prohibits the Department from increasing amounts before September 30, 2029.
DHS 103.087 (1) includes premium calculations that are outdated and in conflict with s. 49.472 (40), Stats. This subsection should be updated with correct premium calculations, and table 103.087 should be repealed.
DHS 103.11 includes provisions related to presumptive eligibility, which is limited to pregnant women. Presumptive eligibility is also potentially available to additional groups, see ss. 49.471 (5) (b) 2., 49.473 (3), Stats., 42 CFR 435.1102, 42 CFR 435.1103, and 42 CFR 435.1110, and this section should be amended to permit qualified providers to make presumptive eligibility determinations for these groups.DHS 104, relating to Medical Assistance; recipient rights and duties: Section DHS 104.01 (12) (a) 1. b. provides that all recipients who are members of a health maintenance organization are exempt from cost sharing, which is in not allowed under federal law. See 42 CFR 447.52(h), 42 CFR 447.56(a)(1)(v) and (viii). This subdivision paragraph should be repealed. Additionally, all of the subunits in subd. 1 should be revised to end with a paragraph and form a complete sentence with the introductory material, consistent with the Administrative Rules Procedures Manual. DHS 105, relating to Medical Assistance; provider certification:
DHS 105.01 (3) contains general conditions for provider participation in Medical Assistance. Requirements in subsection regarding collection of provider information, risk assessment, and onsite visits are inconsistent with 42 CFR 455.104, 42 CFR 455.450, and 42 USC 1396a (a) (77). This subsection should be amended for consistency with the federal laws and regulations.
DHS 105.075 includes a citation to DHS 124.21, which was repealed as part of CR 19-135. This section should be amended to remove the citation to the repealed rule section.
DHS 105.34 includes a provision requiring rehabilitation agencies to be certified as an outpatient rehabilitation agency, but the references to federal regulations are outdated. The section should be amended to include up-to-date federal regulations, namely 42 CFR 485.50 to 42 CFR 485.74.
105.39 (4) (b) 2. includes the term “emergency medical technicians.” 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.
DHS 105.49 contains a provision about Medical Assistance certification for ambulatory surgical centers, and cites to 42 CFR 416.39, which no longer exists. The section should be amended to remove this citation. DHS 107, relating to Medical Assistance; covered services:
DHS 107.06 (3) (b) 1. restricts Medical Assistance coverage for hysterectomies performed solely for the purpose of rendering an individual incapable of reproducing to two circumstances. But federal law prohibits Medicaid coverage for hysterectomies for the sole purpose of sterilization. This subdivision should be repealed.
DHS 107.09 (4) (L) includes a reference to s. 46.27, Stats., which was repealed by 2019 Wis. Act 9. This paragraph should be repealed.
DHS 107.11 (1) (c), (2) and (5), and DHS 107.24 (2) (c) include provisions which require homebound status or that services be provided in the home for home health services. This is inconsistent with Federal Medicaid Home Health Final Rule, CMS-2348-F, which updated 42 CFR 440 and restricts the Department from requiring homebound status or provision of services in the home. These provisions should be amended to remove these requirements.
DHS 107.11, 107.12, 107.112, 107.113, and 107.24 are currently inconsistent with s. 49.46 (2) (a) 4. (b) 6., and (bh), Stats., which allow providers acting in the provider’s scope of practice to prescribe or order certain services. These sections should be amended for consistency with the statute.
DHS 107.13 (2) (a) 6. and 7., (2) (b) and (c) 4., (3) (a) 4. and 7., and (b) require prior authorizations for outpatient psychotherapy services. On October 1, 2017, the Parity in Mental Health and Substance Use Disorder Services Final Rule, CMS-2333-F, which updated 42 CFR 438, 440, 456 and 457, and removed prior authorization requirements for outpatient psychotherapy services. These provisions should be amended or repealed to remove the prior authorization requirements for these services.DHS 108, relating to Medical Assistance; general administration:
DHS 108.02 (9) (d) includes provisions for the Department to withhold payments involving fraud or willful misrepresentation. These provisions are inconsistent with 42 CFR 455.23, and this paragraph should be amended for consistency with federal requirements.
DHS 108.02 (12) (b) 2. a. 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.
DHS 108.02 (10) (intro.) and (d), (11), (12) (a) 2., 4. and 5., (f) 2., and (15) cite to s. 46.27, Stats., which was repealed by 2019 Wis. Act 9. These provisions should either be repealed or amended to remove the references to s. 49.27, Stats., whichever is appropriate.
DHS 108.03 (4) cites to s DHS 1.07 (2) (c). Chapter DHS 1 was repealed and recreated as part of CR 19-020, and s. DHS 1.07 (2) (c) no longer exists. This subsection should be amended to remove the reference to s. 1.07 (2) (c).DHS 116, relating to Wisconsin birth defect prevention and surveillance system:
DHS 116.02 (2), (3), (4), 116.03 (11) to (13), 116.04 (1), (2) (a) (intro.), 1. and 2., (b), (c), (3) and (3) (Note), (4) and (5) (c) and (d) make reference to “suspected” birth defects. These provisions are inconsistent with s. 253.12, Stats., which only requires reporting of diagnosed conditions, and should be amended accordingly.
DHS 116.03 (11) includes a definition of registry that is obsolete and inconsistent with s. 253.12 (3) (a) 1. The definition should be amended to remove the current language and include a citation to s. 253.12 (3) (a) 1.
DHS 116.04 (3) (a) cites to Appendix B, which identifies the content required for a report. Following 2017 Wis. Act 59, the Department created F-40054: Confidential Birth Defects Registry Report, which includes all of the core data items contained in Appendix B and is available electronically or in paper form. This paragraph should be amended to include a reference to this form, and a note explaining how to access it.
DHS 116.04 (4) includes a requirement that reports shall be submitted within 15 calendar days after a birth defect is identified. This requirement is burdensome as it is not consistent with the practice of most hospitals. Reports are submitted via the Wisconsin Electronic Disease Surveillance System (WEDSS), and most hospitals submit reports on a monthly basis. This subsection should be amended to require that reports be submitted to the Department on a monthly basis, or within 30 days of identification of the birth defect, whichever is later.
DHS 116.04 (5) (d) includes provisions about referring a child with a defect to a local health officer or Birth to 3 Program. These provisions conflict with DHS 90.07 (2) and (3), and the paragraph should be amended for consistency with DHS 90.07 (2) and (3).DHS 118, relating to trauma care:
DHS 118.02 (2) (e), 118.03 (13), (14), (16) (h), (28) and (30), 118.06 (3) (b) 1. a. (Note), 118.07 (1) (a) to (c), and 118.09 are outdated because they use “first responder”—a term which was replaced with “emergency medical responder” by 2017 Wis. Act 12. These provisions should be amended to replace “first responder” with “emergency medical responder.”
DHS 118.02 (2) (a) to (c), 118.03 (11), (16) (g), (25) (intro.), (a) and (b), (28), (29), and (30), 118.06 (3) (b) 1. a. (Note), and 118.07 (1) (b) use variations of “emergency medical technician” or “EMT” that are outdated following 2017 Wis. Act 12, which eliminated most of the variations of EMT from Chapter 256, Stats. These provisions should be amended for consistency with current terminology used in Chapter 256, Stats.DHS 124, relating to hospitals:
DHS 124.09 (6) (b) includes a reference to “emergency medical technicians.” 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.
DHS 124.39 (3) (b) includes a provision regarding the Department’s review of an application for critical access hospital status that cites to DHS 124.40, which was repealed as part of CR 19-135. This paragraph should be amended to remove the reference to the repealed rule section.DHS 132, relating to nursing homes:
DHS 132.13 (4) 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 134, relating to facilities serving people with developmental disabilities:
DHS 134.13 (9) 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 134.52 (2) (c) cites to s. 50.04 (2m), Stats., which was repealed by 2019 Wis. Act 9. This paragraph should be amended to remove this reference.
DHS 134.68 (2) cites to DHS 124.17 (3), which was repealed as part of CR 19-135. This subsection should be amended to remove this reference.DHS 150, relating to grants for the workplace wellness programs: This rule chapter was based on s. 250.21, which includes a sunset provision that “no grants shall be administered under this section after December 31, 2018.” Section 250.21 (3), Stats. This rule chapter is obsolete and should be repealed. DHS 153, relating to reimbursement for blood products and supplies used in the home care of hemophilia: Section DHS 153.02 (17) cites to s. DWD 11.15, which was repealed in 2002. This subsection should be repealed.
DHS 163, relating to certification for the identification, removal, and reduction of lead-based paint hazards:
DHS 163.03 (61) includes a definition of lead-based paint that is in conflict with 40 CFR 745.103. Specifically, s. DHS 163.03 (61) defines “lead-based paint" as containing more than 0.06% lead by weight, or more than 0.7 milligrams lead per square centimeter in the dried film of applied paint. 40 CFR 745.103 defines it as equal to or in excess of 1.0 milligram per square centimeter or 0.5% by weight. This subsection should be amended.
All of the DHS 163 Appendices have been rendered obsolete or outdated by the repeal of NR 661.04 (2) and subchapter V of Chapter NR 662, and CR 19-110, which removed all references to the appendices in DHS 163. These Appendices should be repealed.DHS 182, relating to lead poisoning or lead exposure prevention grants. Section DHS 182.03 (8) and (10) include, respectively, definitions of “lead exposure” and “lead poisoning” that are in conflict with the definitions of those terms provided in s. 254.11 (9), Stats. These subsections should be amended to be consistent with the statutory definitions.
