CR 23-046 Rule Text

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 Eligibility for BadgerCare under s. 49.665, Stats., was superseded by BadgerCare Plus under s. 49.471(3) (a), Stats.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 132: Sections 49.498 (14), 49.499 (2m), 50.02, 50.03, 50.095 and 50.098, Stats., permit the Department to promulgate rules providing conditions for licensure of nursing homes.

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:

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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.