DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services (the “department”) proposes an order to repeal ss. DHS 10.13 (1) (b) 4. and 5., (12), (40m), 10.21 (3) (b), (5), 10.23 (2) (k), 10.33 (3), 10.42 (3) (a), (6) (b), 10.52 (4), 10.55 (e), 10.71, 73.03 (4), 73.05, 73.07 (2), 73.10 (3), 105.17 (1c) (c); renumber s. DHS 10.55 (1) (d), (f), and (h) to (k); renumber and amend s. DHS 10.53 (1) (c), and 10.55 (1) (g); consolidate, renumber and amend ss. DHS 10.21 (3) (intro.) and (a), and 10.42 (6) (intro.) and (a); amend ss. DHS 10.11 (5), 10.13 (1) (intro.), (b) 1., 2., and 7., (3m), (14), (16), (20), (28), (46) (a) to (c), 10.21 (4), 10.22 (3) and (4), 10.23 (2) (d) 3., (e), (h) and (j) 2., 10.23 (3) (intro.), (a) 2. (intro.), 2. c., 3., (6) (b), (c), and (e) 5. e., 10.31 (4) (a) and (b), (5), and (6) (a) and (b), 10.41 (2), 10.52 (1) (intro.), (3) (intro.), (3) (a) 2., (b) (intro.), and 1. to 9., 10.53 (title) and (1) (a) and (b), (2) (title), (a) and (b), 10.54 (1) (title), (intro.), (a) and (b), (2) (title), (3), 10.55 (title), (intro.), (1m), (2), (3) and (Note), (4) (title) and (b), (5) (a) 3.. 10.56 (1) and (2) to (3), 10.62 (1) (b), 10.73 (1) and (4) (a) 1., 73 (title), 73.01, 73.02, 73.03 (5), (8m), (11) and (14), 73.04 (1), 73.10 (1) and (2), 73.11 (1), 104.01 (5) (a) 1.; repeal and recreate s. DHS 10.53 (2) (c); and create ss. DHS 10.13 (1) (b) 8. to 10., (c), (8m), (14m), (36m), 10.31 (6) (am), 10,52 (3) (b) 1m., 10.53 (1) (c) 1. to 4., (d), (1m) (title), (a) and (b), (2) (bg) and (br), (d) to (f), 10.54 (2e), (2j), (2o), (2v), 10.55 (1g) (a), (c), and (d) to (h), 10.56 (1m), relating to long-term care services and Medical Assistance fair hearing process. RULE SUMMARY
Statute interpreted
Statutory authority
Section 46.03 (25), Stats.: Uniform regulation and licensing. The department shall promulgate rules to establish licensing and program compliance standards for care and residential facilities, hospitals, hotels, restaurants and the vending of food and beverages after due consideration of the relationship of a licensing code to other related licensing codes, the need for uniform administration, the need to maximize the use of federal funds and the need to encourage the development and operation of needed facilities statewide. In establishing licensing standards designed to ensure that the facility qualifies for federal financial participation, the department shall establish federal regulations as the base requirement. The department may promulgate such additional health and safety standards as it determines to be in the public interest. (5) (d) 1n. b. The county department or aging unit documents that the option of in-home services has been discussed with the person, thoroughly evaluated and found to be infeasible, as determined by the county department or aging unit in accordance with rules promulgated by the department of health services.
(5r) Rule making. The department shall promulgate rules that specify conditions of hardship under which the department may grant an exception to the requirement of sub. (5) (d) 3.
Section 46.286 (4), (5) and (6): (4) Divestment; rules. The department shall promulgate rules relating to prohibitions on divestment of assets of persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.453. (5) Treatment of trust amounts; rules. The department shall promulgate rules relating to treatment of trust amounts of persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.454. (6) Protection of income and resources of couple for maintenance of community spouse; rules. The department shall promulgate rules relating to protection of income and resources of couples for the maintenance of the spouse in the community with regard to persons who receive the family care benefit, that are substantially similar to applicable provisions under s. 49.455. Section 46.288, Stats.: The department shall promulgate as rules all of the following: (1) Standards for performance by resource centers and for certification of care management organizations, including requirements for maintaining quality assurance and quality improvement.
(3) Procedures and standards for procedures for s. 46.287 (2), including time frames for action by a resource center or a care management organization on a contested matter.
Section 49.45 (10), Stats.: Rule−making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. The department shall promulgate a rule defining the term “part−time intermittent care” for the purpose of s. 49.46. Section 49.665 (3), Stats.: Administration. Subject to sub. (2) (a) 2., the department shall administer a program to provide the health services and benefits described in s. 49.46 (2) to persons that meet the eligibility requirements specified in sub. (4). The department shall promulgate rules setting forth the application procedures and appeal and grievance procedures. The department may promulgate rules limiting access to the program under this section to defined enrollment periods. The department may also promulgate rules establishing a method by which the department may purchase family coverage offered by the employer of a member of an eligible family or of a member of an eligible child's household, or family or individual coverage offered by the employer of an eligible unborn child's mother or her spouse, under circumstances in which the department determines that purchasing that coverage would not be more costly than providing the coverage under this section. Section 50.02 (2) (d), Stats.: The department shall promulgate rules that prescribe all of the following: 1. The method by which community-based residential facilities shall make referrals to resource centers or county departments under s. 50.035 (4n) and the method by which residential care apartment complexes shall make referrals to resource centers under s. 50.034 (5n). 2. The time period for nursing homes to provide information to prospective residents under s. 50.04 (2g) (a) and the time period and method by which nursing homes shall make referrals to resource centers under s. 50.04 (2h) (a). Explanation of agency authority
The department has explicit authority to promulgate the proposed rule. Section 49.45 (10), Stats., authorizes the department to “promulgate such rules as are consistent with its duties in administering medical assistance.” Section 46.03 (25), Stats., authorizes the department to “promulgate rules to establish licensing and program compliance standards.” Section 46.288 (3), Stats., authorizes the department to promulgate rules to establish procedures and standards for procedures for fair hearings. Related statute or rule
The following statues and rules are directly related to bringing the department’s rules into compliance with 2019 Wis. Act 9:
42 USC 1396a(a)(3)
42 USC 1396u–2(b)(4)
42 CFR 431 Subpart E
42 CFR 438 Subpart F
Section 46.281 (1n) (d) and (3), Stats.
Section 46.2825, Stats.
Section 46.283 (3) (f), (3) (e), (3) (k), (4) (f), (4) (g), (4) (e), (6) (b) 7., and (6) (b) 9., Stats.
Section 46.287 (2) (a) and (b), Stats.
Section 49.45 (5) (a) and (ag), Stats.
2019 Act 9 section 448
2019 Act 9 section 477
2019 Act 9 section 478
Sections DHS 10.11, 10.13, 10.21, 10.23, 10.31, 10.42, 10.52, 10.53, 10.54, 10.55, and 10.56
Sections DHS 73.01, 73.02, 73.03, 73.05, and 73.10
Section DHS 90.06
Section DHS 104.01
Section DHS 105.17 Plain language analysis
The intent of the proposed rules is to bring the department’s rules into compliance with 2019 Wis. Act 9 (the “Act”) which made changes to ss. 46.27, 46.281 (1n) (d), 46.283 (3) (f), (4) (e), (4) (f), (6) (b) 7., and (6) (b) 9., 46.2825, 46.287 (2) (a) 1. and (2) (a) 1m., 46.287 (2) (b), 46.288 (2), and 49.45 (5) (a), (5) (ag) and (5) (ar), Stats., require the department to do all of the following to bring associated rules into compliance:
(1) Modify the availability and timing of the fair hearing process for certain community-based Medical Assistance programs and services.
(2) Define managed care organization decisions, omissions, or actions.
(3) Require members to first file grievances with managed care organizations, and limit members’ ability to contest managed care organizations’ grievance decisions with the department.
(4) Remove the Community Options Program as a Medical Assistance program.
(5) Eliminate regional long-term care advisory committees.
(6) Requiring each aging and disability resource center governing board to review the number and types of grievances and appeals related to the aging and disability resource center.
(7) Modify aging and disability resource center provisions to reflect availability statewide. Summary of, and comparison with, existing or proposed federal regulations
42 USC 1396a(a)(3) and 1396u–2(b)(4) requires the Medical Assistance program to establish and ensure availability of fair hearing and managed care organization internal grievance procedures. 42 CFR 431 Subpart E sets forth Medical Assistance program fair hearing requirements for non-managed care programs and services. 42 CFR 431.221(d) requires the department to “allow the applicant or beneficiary a reasonable time, not to exceed 90 days from the date that notice of action is mailed, to request a hearings.” 42 CFR 438 Subpart F sets forth Medical Assistance grievance and appeal requirements for managed care programs. 42 CFR 438.402(c)(2)(ii) requires the Medical Assistance managed care program to ensure that “[f]ollowing receipt of a notification of an adverse benefit determination by an MCO, PIHP, or PAHP, an enrollee has 60 calendar days from the date on the adverse benefit determination notice in which to file a request for an appeal to the managed care plan.” 42 CFR 438.408(f)(2) requires that an “enrollee must have no less than 90 calendar days and no more than 120 calendar days from the date of the MCO's, PIHP's, or PAHP's notice of resolution to request a State fair hearing.” 42 CFR 438.400(b) defines the MCO, PIHP, and PAHP acts, and failures to act, that are adverse benefit determinations. 42 CFR §438.400(b) defines an appeal as “a review by an MCO, PIHP, or PAHP of an adverse benefit determination.” 42 CFR §438.400(b) defines grievance as “an expression of dissatisfaction about any matter other than an adverse benefit determination.” 42 CFR 438.402(c)(1)(i) states that an “enrollee may request a State fair hearing after receiving notice under §438.408 that the adverse benefit determination is upheld.”
Federal law does not establish specific requirements for provision and activities of the Community Options Program, regional long-term care advisory committees, or aging and disability resource centers. Comparison with rules in adjacent states
Illinois:
Illinois statute generally requires grievance proceedings and fair hearings to be available to Medicaid applicants and enrollees under 305 ILCS 5/5-30.03(d). Illinois policy establishes that grievance proceedings must be requested within 60 calendar days and fair hearings must be requested within 30 calendar days. Illinois policy also establishes that each managed care organization establishes its own grievance and appeal process which must comply with federal law.
Illinois does not have a group that is comparable to the Wisconsin regional long-term care advisory committees.
Iowa:
Iowa statute requires fair hearings to be available to Medicaid applicants under Iowa Code § 249A.4 (11). Grievance proceedings must be requested within 60 calendar days under 42 CFR 438.402(c)(2)(ii). Iowa administrative code requires grievance proceedings of managed care organization adverse benefit determinations to be requested within the time specified by federal regulation under Iowa Admin Code § 441-73.12(249A) par. 73.12(1)e. Iowa administrative code requires fair hearings to be requested within 90 days of an adverse benefit determination for fee-for-services coverage and within 120 days of exhausting the managed care organization appeal process under Iowa Admin Code § 441-7.4(17A) par. 7.3(3).
Iowa does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Michigan:
Michigan administrative code requires internal conferences and appeals for administrative hearings be available when adverse benefit determinations are made under Mich Admin Code, R 400.3404 Rule 4. Internal conferences must be requested within 30 days and hearings must be requested within 90 days of the date specified in the notice of adverse action under Mich. Admin Code, R 400.3404 Rule 4 and 42 CFR 431.221(d).
Michigan does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Minnesota:
Minnesota statute requires grievance proceedings and fair hearings to be available to Medicaid applicants under MN s. 256.045 subd. 3 (i). Grievance proceedings must be offered by managed care organizations under MN s. 256L.12 subd. 7. (4). Minnesota policy establishes that fair hearings must be requested within 120 days.
Minnesota does not have a group that is comparable to the Wisconsin regional long-term care advisory committees. Summary of factual data and analytical methodologies
The department formed an advisory committee that included representatives of the Aging and Disability Resource Center of Southwest Wisconsin, Aging & Disability Professionals Association of Wisconsin, Disability Rights Wisconsin, Greater Wisconsin Agency on Aging and Resources, Legal Action of Wisconsin, and MetaStar, Inc. Advisory committee members were provided a copy of draft language of the proposed rules and provided comments at an advisory committee meeting held on June 30, 2021.
Analysis and supporting documents used to determine effect on small business
The department published a solicitation in the Administrative Register from January 10, 2022, to February 7, 2022, in which it requested public comments on the economic impact of the proposed rule.
Effect on small business
Based on the economic impact public commenting period and the analysis provided in fiscal estimate and economic impact analysis, the proposed rule is anticipated to have no economic impact on small businesses.
Agency contact person
Statement on quality of agency data
The data used by the department to prepare these proposed rules and analysis complies with s. 227.14 (2m), Stats.
Place where comments are to be submitted and deadline for submission
RULE TEXT
SECTION 1. DHS 10.11 (5) is amended to read:
