DHS 163: Sections 250.04 (7), 250.041, 254.115, 254.15, 254.167, 254.172, 254.176 (1) and (3), 254.178 (2), and 254.179, and 227.11 (2), Stats. Explanation of agency authority
Under s. 227.29 (1) (a) to (e), Stats., the Department is required to complete an agency review of rules and enactments on a biennial basis and make changes to: unauthorized rules, as defined in s. 227.26 (4) (a), 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with a description of why those rules are obsolete or have been rendered unnecessary; rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a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. Explanation of agency authority for each rule chapter in the proposed rules is as follows:
DHS 1: Chapter DHS 1 interprets s. 46.03 (18), Stats., which directs the Department to establish a uniform system of fees for certain services provided or purchased by the Department or certain county departments. The Department is also directed to make collections, determine ability to pay, enforce or compromise liability and to delegate some of these responsibilities to counties. Chapter DHS 1 is therefore necessary to effectuate the purposes of the interpreted statute and to comply with s. 227.10 (1) and (2m), Stats. DHS 10: Sections 46.286 (4) to (7), 46.287 (2) (a) 1. (intro.), 46.288, 50.02 (2) (d) direct the Department to implement rules for the family care, which is a Medicaid long-term care program that helps families arrange for appropriate long-term care services for family members for adults with physical or developmental disabilities. The rules include financial eligibility criteria and cost sharing requirements. DHS 13: Section 140.40 (4g) and (4r), Stats., direct the Department to protect clients served in specified Department-regulated programs by establishing a process for reporting allegations of abuse or neglect of a client or misappropriation of client's property to the Department, establishing a process for the investigation of those allegations and establishing the due process rights of persons who are subjects of the investigations. DHS 40: Section 51.42 (7) (b), Stats., directs the Department to promulgate rules governing the provision of community mental health services. The Department determines and monitors standards and requirements to administer services for community mental health, developmental disabilities, alcoholism, and drug abuse. DHS 82: Section 50.02 (2) (am) Stats., directs the Department to establish certification standards for the operation of adult family homes in order to protect and promote the health, safety, and welfare of persons residing in and receiving care and maintenance in those homes. DHS 83: Section 50.02 (2), Stats., directs the Department to develop and establish regulations and standards for the care, treatment or services, and health, safety, rights, welfare, and comfort of residents in community-based residential facilities. DHS 89: Section 50.034, Stats., directs the Department to establish standards and procedures for the certification or registration of residential care apartment complexes in order to promote the health and safety of persons residing in and receiving services from those facilities. DHS 101–108: Section 49.45 (10) Stats., permits the Department to establish rules for the purpose of administering medical assistance in Wisconsin. Eligibility for BadgerCare under s. 49.665, Stats., was superseded by BadgerCare Plus under s. 49.471(3) (a), Stats. Section 49.471, Stats., includes requirements for implementing BadgerCare Plus, and s. (12) (a) 1., Stats., permits the Department to “promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.” DHS 116: Section 253.12 (3) (a), Stats., gives the Department authority to promulgate rules to implement the Wisconsin birth defect prevention and surveillance system established by s. 253.12, Stats. DHS 118: Section 256.25 (2), Stats., directs the Department to promulgate rules to develop and implement a statewide trauma care system. DHS 124: Section 50.36 (1), Stats., requires that the Department use and enforce the conditions for Medicare participation for hospitals as the minimum standards that apply to hospitals, and permits the Department to promulgate, adopt, amend, and enforce additional rules and standards for the construction, maintenance, and operation of hospitals that are necessary to provide safe and adequate care and treatment of hospital patients and to protect the health and safety of patients and employees. DHS 134: Sections 50.02 (2) and (3), Stats., give the Department authority to promulgate rules to provide conditions of licensure for facilities that primarily serve people with developmental disabilities who require active treatment. DHS 150: Section 250.21 (4), Stats., directs the Department to promulgate rules to administer granting grants from the appropriation under s. 20.435 (1) (bn), Stats., to reimburse small businesses for cost incurred in establishing a workplace wellness program for those employed in Wisconsin. DHS 153: Sections 49.685 (8) (c) and 49.687 (1), Stats., direct the Department to promulgate rules to implement a program of reimbursement for the cost of blood products and supplies for use in the home care of residents of Wisconsin who have hemophilia. DHS 163: Section 254.172, Stats., permits the Department to promulgate rules governing lead hazard reduction that the Department determines are consistent with federal law. Section 254.176, Stats., allows the Department to establish by rule certification requirements for any person who performs lead hazard reduction or lead management activity or who supervises the performance of any lead hazard reduction or lead management activity. Section 254.178, Stats., requires that the Department promulgate rules establishing requirements for the accreditation of lead training courses and approval of lead instructors. Section 254.179, Stats., requires the Department to promulgate rules for certifying dwellings as lead-safe or lead-free, including the standards that must be met for issuance of a lead-free or lead-safe certificate and the period of validity of the certificate. DHS 182: Section 254.151, Stats., directs the Department to promulgate rules to establish criteria and procedures for the award of annual project grants from appropriations under s. 20.435 (1) (ef), Stats., to local health departments or non-profit agencies working in collaboration with local health departments on projects aimed at preventing lead poisoning or exposure to lead. DHS 251: Section 49.02 (7m), Stats., directs the Department to promulgate rules to provide: (1) Procedures for a county relief agency to obtain a relief block grant; (2) Standards for county relief agencies to follow in making eligibility determinations under s. 49.015, Stats.; (3) Standards for waiver of an eligibility requirement under s. 49.015 (3) (b), Stats.; and (4) Procedures for appealing eligibility determinations. Related statute or rule
Sections 227.11 (2) and 227.29, Stats. Related state and federal statutes or rules are cited, as applicable, in the plan language analysis for each rule chapter. Plain language analysis
The Department has identified needed administrative rule changes under s. 227.29, Stats., and based on information provided to the Department by the Legislative Reference Bureau. The Department proposes to make changes to all of the rules identified below. DHS 1, relating to uniform fees, liability and collections:
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
DHS 10.62, recovery of correctly paid benefits, contains estate-recovery provisions that are inconsistent with s. 49.496, Stats., and should be revised.
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:
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.
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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