The Governor approved this Statement of Scope on October 07, 2016
Statement of Scope
DEPARTMENT OF HEALTH SERVICES
Relating to
:
|
Provider Certification, Personal Care Providers
|
T
ype of Statement of Scope:
Original
1
.
Detailed description of the objective of the
proposed
rule
:
The 2009 - 2011 biennial budget bill expanded the types of entities that could be certified by the Department of Health Services as Medicaid personal care providers to include free-standing personal care agencies (PCAs), in addition to counties, federally recognized American Indian tribes and bands, home health agencies, and independent living centers. Section
DHS 105.17
was revised July 2010 in response to the addition of free-standing PCAs. Since 2010, the department has certified 251 free-standing PCAs with an additional 16 free-standing PCAs in the process of being certified.
The department has determined that existing standards contained in s.
DHS 105.17
are not adequate to monitor compliance with Medicaid requirements and to prevent fraud, waste, and abuse by PCAs in the Medicaid progra
m. In addition, the department has determined that provisions relating to the health, safety, and rights of clients receiving services from PCAs or subcontractors could be strengthened. This determination is also confirmed by the federal Office of Inspector General, that found significant and persistent compliance, payment, and fraud vulnerabilities by PCAs in its report titled: Personal Care Services, Trends, Vulnerabilities, and Recommendations for Improvement (November 2012). The department therefore intends to revise s.
DHS 105.17
and propose changes relating to governing bodies, staff training and qualifications, minimum age requirements, supervision of personal care workers, quality improvement, facility closure and provider certification.
2a. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives:
On-site survey prior to certification
Currently
,
the d
epartment recommends a
PCA
for provisional certification based on a review of the
PCA’s
application packet
and
without
conducting an onsite survey
of the
PCA
.
A
n onsite survey
is not required and
may not be conducted
by the department
for several months after
provisional
certification is granted
,
at which time significant problems may be identified
.
The department proposes to
revise the certification standards of
s.
DHS 105.17
to
require an on-site survey and a finding of substantial compliance with the regulations before
provisional
certification
may
be granted
to the
PCA
.
Governing body
Currently
,
there is no requirement for a
PCA
to have a governing body to oversee
its
operations.
The
department
intends to
establish standards
that would require a
PCA
to have a governing body to
provide oversight
, develop
governing policies
, appoint an administrator and substitute administrator,
and develop a statement of the services to be provided by the PCA
.
Administrator and administrator qualifications
Currently
,
there is no requirement for a
PCA
to
appoint
an
administrator
and substitute administrator responsible for
supervis
ing
daily operation
s
.
The department intends to establish standards
requiring
the
appoint
ment of
a qualified administrator and substitute administrator
responsible for
ensur
ing that
staff is
knowledgeable
and compliant with
requirements
governing
PCAs
.
Existing administrators will not be subject to newly proposed qualification requirements.
Quality improvement program
Currently
,
a
PCA
is not required to
have a
quality improvement
program to
evaluate
the
effectiveness
of its program and services
.
The department intends to establish standards
that
would
require
PCAs
to have
an ongoing quality improvement committee
.
The committee
would
be responsible for evaluating client services
,
identifying areas of improvement,
and
documenting
and implementing
plans to correct problems
.
Staff
training
Currently
,
PCAs
are
not
required to provide orientation and ongoing training
to staff working directly with clients
in
various
areas of mandated
care. The department
intends to
revise
s.
DHS 105.17
to
strengthen
orientation and ongoing training standards in order to
improve
the quality of services provided by personal care workers and staff.
Minimum age and skills set for personal care workers
Currently,
no minimum age
or skill set
requirement
s
are
specified
in
s.
DHS 105.17
for
personal care workers
providing services
to vulnerable clients in their homes
.
The department intends to revise
s.
DHS 105.17
to establish minimum age and qualification requirements for personal care workers to ensure that vulnerable clients
receive
adequate care.
Supervision of the personal care worker
Section
DHS 105.17
requires that a registered nurs
e conduct a supervisory visit in
the client’s home every 60 days to
evaluate whether staff is providing care in compliance with regulatory requirements. The registered nurse must
DHS 107.112(3)(c)
evaluate
the client's condition,
evaluate
the
services
provided to the client by the
personal care worker
,
r
eview
service records and
the plan of care and
,
when needed, discuss with the physician
any necessary changes
to
the plan of
care.
The departmen
t proposes to
clarify
the existing requirement
that
supervisory visits be conducted
at a time
when
the
personal care worker
may be directly observed providing services to clients in
the client’s home
.
Agency
closure
Currently,
PCA
s are not required
to notify
a
client or the client’s representative when the
PCA
is closing
, or
to
provide assistance to the client in arranging for continuity of necessary services.
The department
therefore
intends to revise
s.
DHS 105.17
to
ensure clients or their representatives are provided sufficient notice and assistance in obtaining alternative personal care services in the event of a PCA closure.
2
b. Analysis of policy a
lternatives
The department could choose not
to
revise
s.
DHS 105.17
. However, this alternative is not reasonable because the department has determined that
oversight of
PCAs
is
inadequate to ensure
a
minim
um standard
of care for vulnerable clients, and to prevent fraud, waste, and abuse by PCA
s
in the Medicaid program. This determination is also confirmed by
the federal Office of Inspector General, that found
significant and persistent compliance, payment, and fraud vulnerabilities by PCAs in its report
titled:
Personal Care Services, Trends, Vulnerabilities, and Recommendations for Improvement
(November 2012).
The department could choose to propose voluntary guidelines for PCAs, rather than establishing standards by rule. However, this alternative is not reasonable because voluntary compliance with such guidelines would prevent the department from ensuring
consistency in the
standard
of care
provided to vulnerable clients
. In addition, voluntary compliance with such guidelines would
impede
the department’s efforts to reduce fraud, waste, and abuse in the Medicaid program.
3
.
Detailed explanation of statutory authority for the rule
(including
the
statutory citation and language):
The department’s
authority to promulgate rules is
as follows:
Establish criteria for certification of providers of medical assistance and, except as provided in
par.
(b) 6m.
and
s.
49.48
, and subject to
par.
(b) 7.
and
8.
, certify providers who meet the criteria.
Section
49.45 (10)
,
Stat
s
.
,
states
, in relevant part
:
Rule-making powers and duties.
The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance.
E
ach agency
may
promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or
nonstatutory
provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
4
.
Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule
:
The depar
tment will spend approximately 2
,
0
00 staff hours for rulemaking.
The department may form a
n advisory
committee
to assist in developing the rule.
5
.
List with description of all entities that
may
be affected by the proposed rule
:
The entities that may be affected by the proposed rule are
PCAs
,
PCA staff and
employees,
PCA
governing bodies,
clients
of PCA
s,
and client representatives
.
6
.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule
:
There
appear to be
no existing or proposed federal
regulations that address
the activities
to be
regulated by the proposed rule.
7
. Anticipated economic impact of implementing the rule:
The proposed rule is anticipated to have little to no economic impact if promulgated.
The proposed rule will have an impact on small businesses.
Contact Person:
Pat Benesh,
Division of Quality Assurance
608-264-9896
