Section 107.09. Nursing home services.

 

(1)   Definition. In this section, "active treatment" means an ongoing, organized effort to help each resident attain his or her developmental capacity through the resident's regular participation, in accordance with an individualized plan, in a program of activities designed to enable the resident to attain the optimal physical, intellectual, social and vocational levels of functioning of which he or she is capable.

(2)   Covered services. Covered nursing home services are medically necessary services provided by a certified nursing home to an inpatient and prescribed by a physician in a written plan of care. The costs of all routine, day-to-day health care services and materials provided to recipients by a nursing home shall be reimbursed within the daily rate determined for MA in accordance with s. 49.45 (6m) , Stats. These services are the following:

(a) Routine services and costs, namely:

1. Nursing services;

2. Special care services, including activity therapy, recreation, social services and religious services;

3. Supportive services, including dietary, housekeeping, maintenance, institutional laundry and personal laundry services, but excluding personal dry cleaning services;

4. Administrative and other indirect services;

5. Physical plant, including depreciation, insurance and interest on plant;

6. Property taxes; and

7. Transportation services provided on or after July 1, 1986;

(b) Personal comfort items, medical supplies and special care supplies. These are items reasonably associated with normal and routine nursing home services which are listed in the nursing home payment formula. If a recipient specifically requests a brand name which the nursing home does not routinely supply and for which there is no equivalent or close substitute included in the daily rate, the recipient, after having been informed in advance that the equivalent or close substitute is not available without charge, will be expected to pay for that brand item at cost out of personal funds; and

(c) Indirect services provided by independent providers of service.

(3)   Services requiring prior authorization. The rental or purchase of a specialized wheelchair for a recipient in a nursing home, regardless of the purchase or rental cost, requires prior authorization from the department.

(4)   Other limitations.

(a) Ancillary costs.

1. Treatment costs which are both extraordinary and unique to individual recipients in nursing homes shall be reimbursed separately as ancillary costs, subject to any modifications made under sub. (2) (b) . The following items are not included in calculating the daily nursing home rate but may be reimbursed separately:

a. Oxygen in liters, tanks, or hours, including tank rentals and monthly rental fees for concentrators;

b. Tracheostomy and ventilatory supplies and related equipment, subject to guidelines and limitations published by the department in the provider handbook;

c. Transportation of a recipient to obtain health treatment or care if the treatment or care is prescribed by a physician as medically necessary and is performed at a physician's office, clinic, or other recognized medical treatment center, if the transportation service is provided by the nursing home, in its controlled equipment and by its staff, or by common carrier such as bus or taxi, and if the transportation service was provided prior to July 1, 1986. Transportation shall not be reimbursed as an ancillary service on or after July 1, 1986; and

d. Direct services provided by independent providers of service only if the nursing home can demonstrate to the department that to pay for the service in question as an add-on adjustment to the nursing home's daily rate is equal in cost or less costly than to reimburse the independent service provider through a separate billing. The nursing home may receive an ancillary add-on adjustment to its daily rate in accordance with s. 49.45 (6m) (b) , Stats. The independent service provider may not claim direct reimbursement if the nursing home receives an ancillary add-on adjustment to its daily rate for the service.

2. The costs of services and materials identified in subd. 1. which are provided to recipients shall be reimbursed in the following manner:

a. Claims shall be submitted under the nursing home's provider number, and shall appear on the same claim form used for claiming reimbursement at the daily nursing home rate;

b. The items identified in subd. 1. shall have been prescribed in writing by the attending physician, or the physician's entry in the medical records or nursing charts shall make the need for the items obvious;

c. The amounts billed shall reflect the fact that the nursing home has taken advantage of the benefits associated with quantity purchasing and other outside funding sources;

d. Reimbursement for questionable materials and services shall be decided by the department;

e. Claims for transportation shall show the name and address of any treatment center to which the patient recipient was transported, and the total number of miles to and from the treatment center; and

f. The amount charged for transportation may not include the cost of the facility's staff time, and shall be for an actual mileage amount.

(b) Independent providers of service. Whenever an ancillary cost is incurred under this subsection by an independent provider of service, reimbursement may be claimed only by the independent provider on its provider number. The procedures followed shall be in accordance with program requirements for that provider specialty type.

(c) Services covered in a Christian Science sanatorium. Services covered in a Christian Science sanatorium shall be services ordinarily received by inpatients of a Christian Science sanatorium, but only to the extent that these services are the Christian Science equivalent of services which constitute inpatient services furnished by a hospital or skilled nursing facility.

(d) Wheelchairs. Wheelchairs shall be provided by skilled nursing and intermediate care facilities in sufficient quantity to meet the health needs of patients who are recipients. Nursing homes which specialize in providing rehabilitative services and treatment for the developmentally or physically disabled, or both, shall provide the special equipment, including commodes, elevated toilet seats, grab bars, wheelchairs adapted to the recipient's disability, and other adaptive prosthetics, orthotics and equipment necessary for the provision of these services. The facility shall provide replacement wheelchairs for recipients who have changing wheelchair needs.

(e) Determination of services as skilled. In determining whether a nursing service is skilled, the following criteria shall be applied:

1. Where the inherent complexity of a service prescribed for a patient is such that it can be safely and effectively performed only by or under the direct supervision of technical or professional personnel, the service shall constitute a skilled service;

2. The restoration potential of a patient shall not be the deciding factor in determining whether a service is to be considered skilled or nonskilled. Even where full recovery or medical improvement is not possible, skilled care may be needed to prevent, to the extent possible, deterioration of the condition or to sustain current capacities. For example, even though no potential for rehabilitation exists, a terminal cancer patient may require skilled services as defined in this paragraph and par. (f) ; and

3. A service that is ordinarily nonskilled shall be considered a skilled service where, because of medical complications, its performance or supervision or the observation of the patient necessitates the use of skilled nursing or skilled rehabilitation personnel. For example, the existence of a plaster cast on an extremity generally does not indicate a need for skilled care, but a patient with a preexisting acute skin problem or with a need for special traction of the injured extremity might need to have technical or professional personnel properly adjust traction or observe the patient for complications. In these cases, the complications and special services involved shall be documented by physician's orders and nursing or therapy notes.

(f) Skilled nursing services or skilled rehabilitation services.

1. A nursing home shall provide either skilled nursing services or skilled rehabilitation services on a 7-day-a-week basis. If, however, skilled rehabilitation services are not available on a 7-day-a-week basis, the nursing home would meet the requirement in the case of a patient whose inpatient stay is based solely on the need for skilled rehabilitation services if the patient needs and receives these services on at least 5 days a week.

2. Examples of services which could qualify as either skilled nursing or skilled rehabilitation services are:

a. Overall management and evaluation of the care plan. The development, management and evaluation of a patient care plan based on the physician's orders constitute skilled services when, in terms of the patient's physical or mental condition, the development, management and evaluation necessitate the involvement of technical or professional personnel to meet needs, promote recovery and actuate medical safety. This includes the management of a plan involving only a variety of personal care services where in light of the patient's condition the aggregate of the services necessitates the involvement of technical or professional personnel. Skilled planning and management activities are not always specifically identified in the patient's clinical record. In light of this, where the patient's overall condition supports a finding that recovery or safety can be assured only if the total care required is planned, managed, and evaluated by technical or professional personnel, it is appropriate to infer that skilled services are being provided;

b. Observation and assessment of the patient's changing condition. When the patient's condition is such that the skills of a nurse or other technical or professional person are required to identify and evaluate the patient's need for possible modification of treatment and the initiation of additional medical procedures until the patient's condition is stabilized, the services constitute skilled nursing or rehabilitation services. Patients who in addition to their physical problems exhibit acute psychological symptoms such as depression, anxiety or agitation may also require skilled observation and assessment by technical or professional personnel for their safety and the safety of others. In these cases, the special services required shall be documented by a physician's orders or nursing or therapy notes; and

c. Patient education. In cases where the use of technical or professional personnel is necessary to teach a patient self-maintenance, the teaching services constitute skilled nursing or rehabilitative services.

(g) Intermediate care facility services (ICF).

1. Intermediate care services include services that are:

a. Considered appropriate by the department and provided by a Christian Science sanatorium either operated by or listed and certified by the First Church of Christ Scientist, Boston, Mass.; or

b. Provided by a facility located on an Indian reservation that furnishes, on a regular basis, health-related services and is licensed pursuant to s. 50.03 , Stats., and ch. DHS 132 .

2. Intermediate care services may include services provided in an institution for developmentally disabled persons if:

a. The primary purpose of the institution is to provide health or rehabilitation services for developmentally disabled persons;

b. The institution meets the standards in s. DHS 105.12 ; and

c. The developmentally disabled recipient for whom payment is requested is receiving active treatment and meeting the requirements of 42 CFR 442.445 and 442.464 , s. DHS 132.695 and ch. DHS 134 .

3. Intermediate care services may include services provided in a distinct part of a facility other than an intermediate care facility if the distinct part:

a. Meets all requirements for an intermediate care facility;

b. Is an identifiable unit, such as an entire ward or contiguous ward, a wing, a floor, or a building;

c. Consists of all beds and related facilities in the unit;

d. Houses all recipients for whom payment is being made for intermediate care facility services, except as provided in subd. 4. ;

e. Is clearly identified; and

f. Is approved in writing by the department.

4. If the department includes as intermediate care facility services those services provided by a distinct part of a facility other than an intermediate care facility, it may not require transfer of a recipient within or between facilities if, in the opinion of the attending physician, transfer might be harmful to the physical or mental health of the recipient.

(h) Determining the appropriateness of services at the skilled level of care.

1. In determining whether the services needed by a recipient can only be provided in a skilled nursing facility on an inpatient basis, consideration shall be given to the patient's condition and to the availability and feasibility of using more economical alternative facilities and services.

2. If a needed service is not available in the area in which the individual resides and transporting the person to the closest facility furnishing the services would be an excessive physical hardship, the needed service may be provided in a skilled nursing facility. This would be true even though the patient's condition might not be adversely affected if it would be more economical or more efficient to provide the covered services in the institutional setting.

3. In determining the availability of alternative facilities and services, the availability of funds to pay for the services furnished by these alternative facilities shall not be a factor. For instance, an individual in need of daily physical therapy might be able to receive the needed services from an independent physical therapy practitioner.

(i) Resident's account.

1. Each recipient who is a resident in a public or privately-owned nursing home shall have an account established for the maintenance of earned or unearned money payments received, including social security and SSI payments. The payee for the account shall be the recipient, a legal representative of the recipient or a person designated by the recipient as his or her representative.

2. If it is determined by the agency making the money payment that the recipient is not competent to handle the payments, and if no other legal representative can be appointed, the nursing home administrator may be designated as the representative payee. The need for the representative payee shall be reviewed when the annual review of the recipient's eligibility status is made.

3. The recipient's account shall include documentation of all deposits and withdrawals of funds, indicating the amount and date of deposit and the amount, date and purpose of each withdrawal.

4. Upon the death or permanent transfer of the resident from the facility, the balance of the resident's trust account and a copy of the account records shall be forwarded to the recipient, the recipient's personal representative or to the legal guardian of the recipient. No facility or any of its employees or representatives may benefit from the distribution of a deceased recipient's personal funds unless they are specifically named in the recipient's will or constitute an heir-at-law.

5. The department's determination that a facility has violated this paragraph shall be cause for the facility to be decertified from MA.

(j) Bedhold.

1. Bedhold payments shall be made to a nursing home for an eligible recipient during the recipient's temporary absence for hospital treatment, a therapeutic visit or to participate in a therapeutic rehabilitative program, if the following criteria are met:

a. The facility's occupancy level meets the requirements for bedhold reimbursement under the nursing home reimbursement formula. The facility shall maintain adequate records regarding occupancy and provide these records to the department upon request;

b. For bedholds resulting from hospitalization of a recipient, reimbursement shall be available for a period not to exceed 15 days for each hospital stay. There is no limit on the number of stays per year. No recipient may be administratively discharged from the nursing home unless the recipient remains in the hospital longer than 15 days;

c. The first day that a recipient is considered absent from the home shall be the day the recipient leaves the home, regardless of the time of day. The day of return to the home does not count as a bedhold day, regardless of the time of day;

d. A staff member designated by the nursing home administrator, such as the director of nursing service or social service director, shall document the recipient's absence in the recipient's chart and shall approve in writing each leave;

e. Claims for bedhold days may not be submitted when it is known in advance that a recipient will not return to the facility following the leave. In the case where the recipient dies while hospitalized, or where the facility is notified that the recipient is terminally ill, or that due to changes in the recipient's condition the recipient will not be returning to the facility, payment may be claimed only for those days prior to the recipient's death or prior to the notification of the recipient's terminal condition or need for discharge to another facility;

f. For bedhold days for therapeutic visits or for participation in therapeutic/rehabilitative programs, the recipient's physician shall record approval of the leave in the physician's plan of care. This statement shall include the rationale for and anticipated goals of the leave as well as any limitations regarding the frequency or duration of the leave; and

g. For bedhold days due to participation in therapeutic/rehabilitative programs, the program shall meet the definition of therapeutic/rehabilitative program under s. DHS 101.03 (175) . Upon request of the department, the nursing home shall submit, in writing, information on the dates of the program's operation, the number of participants, the sponsorship of the program, the anticipated goals of the program and how these goals will be accomplished, and the leaders or faculty of the program and their credentials.

2. Bedhold days for therapeutic visits and therapeutic/rehabilitative programs and hospital bedhold days which are not separately reimbursed to the facility by MA in accordance with s. 49.45 (6m) , Stats., may not be billed to the recipient or the recipient's family.

(k) Private rooms. Private rooms shall not be a covered service within the daily rate reimbursed to a nursing home, except where required under s. DHS 132.51 (2) (b) . However, if a recipient or the recipient's legal representative chooses a private room with full knowledge and acceptance of the financial liability, the recipient may reimburse the nursing home for a private room if the following conditions are met:

1. At the time of admission the recipient or legal representative is informed of the personal financial liability encumbered if the recipient chooses a private room;

2. Pursuant to s. DHS 132.31 (1) (d) , the recipient or legal representative documents the private room choice in writing;

3. The recipient or legal representative is personally liable for no more than the difference between the nursing home's private pay rate for a semi-private room and the private room rate; and

4. Pursuant to s. DHS 132.31 (1) (d) , if at any time the differential rate determined under subd. 3. changes, the recipient or legal representative shall be notified by the nursing home administrator within 15 days and a new consent agreement shall be reached.

(L) Assessment. No nursing home may admit any patient unless the patient is assessed in accordance with s. 46.27 (6) , Stats.

(m) Physician certification of need for SNF or ICF inpatient care.

1. A physician shall certify at the time that an applicant or recipient is admitted to a nursing home or, for an individual who applies for MA while in a nursing home before the MA agency authorizes payment, that SNF or ICF nursing home services are or were needed.

2. Recertification shall be performed by a physician, a physician's assistant, or a nurse practitioner under the supervision of a physician as follows:

a. Recertification of need for inpatient care in an SNF shall take place 30, 60 and 90 days after the date of initial certification and every 60 days after that;

b. Recertification of need for inpatient care in an ICF shall take place no earlier than 60 days and 180 days after initial certification, at 12, 18 and 24 months after initial certification, and every 12 months after that; and

c. Recertification shall be considered to have been done on a timely basis if it was performed no later than 10 days after the date required under subd. 2. a. or b. , as appropriate, and the department determines that the person making the certification had a good reason for not meeting the schedule.

(n) Medical evaluation and psychiatric and social evaluation — SNF.

1. Before a recipient is admitted to an SNF or before payment is authorized for a resident who applies for MA, the attending physician shall:

a. Undertake a medical evaluation of each applicant's or recipient's need for care in the SNF; and

b. Devise a plan of rehabilitation, where applicable.

2. A psychiatric and a social evaluation of an applicant's or recipient's need for care shall be performed by a provider certified under s. DHS 105.22 .

3. Each medical evaluation shall include: diagnosis, summary of present medical findings, medical history, documentation of mental and physical status and functional capacity, prognosis, and a recommendation by the physician concerning admission to the SNF or continued care in the SNF.

(o) Medical evaluation and psychological and social evaluation — ICF.

1. Before a recipient is admitted to an ICF or before authorization for payment in the case of a resident who applies for MA, an interdisciplinary team of health professionals shall make a comprehensive medical and social evaluation and, where appropriate, a psychological evaluation of the applicant's or recipient's need for care in the ICF within 48 hours following admission unless the evaluation was performed not more than 15 days before admission.

2. In an institution for mentally retarded persons or persons with related conditions, the team shall also make a psychological evaluation of need for care. The psychological evaluation shall be made before admission or authorization of payment, but may not be made more than 3 months before admission.

3. Each evaluation shall include: diagnosis; summary of present medical, social and, where appropriate, developmental findings; medical and social family history; documentation of mental and physical status and functional capacity; prognosis; kinds of services needed; evaluation by an agency worker of the resources available in the home, family and community; and a recommendation concerning admission to the ICF or continued care in the ICF.

4. If the comprehensive evaluation recommends ICF services for an applicant or recipient whose needs could be met by alternate services that are not then available, the facility shall enter this fact in the recipient's record and shall begin to look for alternative services.

(p) MA agency review of need for admission to an SNF or ICF. Medical and other professional personnel of the agency or its designees shall evaluate each applicant's or recipient's need for admission to an SNF or ICF by reviewing and assessing the evaluations required under pars. (n) and (o) .

(q) Physician's plan of care for SNF or ICF resident.

1. The level of care and services to be received by a recipient from the SNF or ICF shall be documented in the physician's plan of care by the attending physician and approved by the department. The physician's plan of care shall be submitted to the department whenever the recipient's condition changes.

2. A physician's plan of care shall be required at the time of application by a nursing home resident for MA benefits. If a physician's plan of care is not submitted to the department by the nursing home at the time that a resident applies for MA benefits, the department shall not certify the level of care of the recipient until the physician's plan of care has been received. Authorization shall be covered only for the period of 2 weeks prior to the date of submission of the physician's plan of care.

3. The physician's plan of care shall include diagnosis, symptoms, complaints and complications indicating the need for admission; a description of the functional level of the individual; objectives; any orders for medications, treatments, restorative and rehabilitative services, activities, therapies, social services or diet, or special procedures recommended for the health and safety of the patient; plans for continuing care, including review and modification to the plan of care; and plans for discharge.

4. The attending or staff physician and a physician assistant and other personnel involved in the recipient's care shall review the physician's plan of care at least every 60 days for SNF recipients and at least every 90 days for ICF recipients.

(r) Reports of evaluations and plans of care - ICF and SNF. A written report of each evaluation and the physician's plan of care shall be made part of the applicant's or recipient's record:

1. At the time of admission; or

2. If the individual is already in the facility, immediately upon completion of the evaluation or plan.

(s) Recovery of costs of services. All medicare-certified SNF facilities shall recover all medicare-allowable costs of services provided to recipients entitled to medicare benefits prior to billing MA. Refusal to recover these costs may result in a fine of not less than $10 nor more than $100 a day, as determined by the department.

(t) Prospective payment system. Provisions regarding services and reimbursement contained in this subsection are subject to s. 49.45 (6m) , Stats.

(u) Active treatment. All developmentally disabled residents of SNF or ICF certified facilities who require active treatment shall receive active treatment subject to the requirements of s. DHS 132.695 .

(v) Permanent reduction in MA payments when an IMD resident is relocated to the community. If a facility determined by the federal government or the department to be an institution for mental diseases (IMD) or by the department to be at risk of being determined to be an IMD under 42 CFR 435.1009 or s. 49.43 (6m) , Stats., agrees under s. 46.266 (9) , Stats., to receive a permanent limitation on its payment under s. 49.45 (6m) , Stats., for each resident who is relocated, the following restrictions apply:

1. MA payment to a facility may not exceed the payment which would otherwise be issued for the number of patients corresponding to the facility's patient day cap set by the department. The cap shall equal 365 multiplied by the number of MA-eligible residents on the date that the facility was found to be an IMD or was determined by the department to be at risk of being found to be an IMD, plus the difference between the licensed bed capacity of the facility on the date that the facility agrees to a permanent limitation on its payments and the number of residents on the date that the facility was found to be an IMD or was determined by the department to be at risk of being found to be an IMD. The patient day cap may be increased by the patient days corresponding to the number of residents ineligible for MA at the time of the determination but who later become eligible for MA.

2. The department shall annually compare the MA patient days reported in the facility's most recent cost report to the patient day cap under subd. 1. Payments for patient days exceeding the patient day cap shall be disallowed.

(5)   Non-covered services. The following services are not covered services:

(a) Services of private duty nurses when provided in a nursing home;

(b) For Christian Science sanatoria, custodial care and rest and study;

(c) Inpatient nursing care for ICF personal care and ICF residential care to residents who entered a nursing home after September 30, 1981; form

(d) ICF-level services provided to a developmentally disabled person admitted after September 15, 1986, to an ICF facility other than to a facility certified under s. DHS 105.12 as an intermediate care facility for the mentally retarded unless the provisions of s. DHS 132.51 (2) (d) 1. have been waived for that person; and

(e) Inpatient services for residents between the ages of 21 and 64 when provided by an institution for mental disease, except that services may be provided to a 21 year old resident of an IMD if the person was a resident of the IMD immediately prior to turning 21 and continues to be a resident after turning 21.

Cr. Register, February, 1986, No. 362 , eff. 3-1-86; renum. (1) to (4) to be (2) to (5) and am. (4) (g) 2. and (5) (6) and (c), cr. (1) (4) (u), (5) (d) and (e), Register, February, 1988, No. 386 , eff. 3-1-88; emerg. cr. (4) (v), eff. 8-1-88; cr. (4) (v), Register, December, 1988, No. 396 , eff. 1-1-89; correction in (4) (a) 1. intro. made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1999, No. 520 ; corrections in (4) (v) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538 ; corrections in (4) (g) 1., 2., (j) 1. g., (k), (n) 2., (u) and (5) (d) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636 .

Note

Copies of the Nursing Home Payment Formula may be obtained from Records Custodian, Division of Health Care Access and Accountability, P.O. Box 309, Madison, Wisconsin 53701. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples of indirect services provided by independent providers of services are services performed by a pharmacist reviewing prescription services for a facility and services performed by an occupational therapist developing an activity program for a facility. Microsoft Windows NT 6.1.7601 Service Pack 1 For more information on prior authorization, see s. DHS 107.02 (3) . Microsoft Windows NT 6.1.7601 Service Pack 1 For example, where a facility provides physical therapy on only 5 days a week and the patient in the facility requires and receives physical therapy on each of the days on which it is available, the requirement that skilled rehabilitation services be provided on a daily basis would be met. Microsoft Windows NT 6.1.7601 Service Pack 1 For more information about non-covered services, see s. DHS 107.03 . Microsoft Windows NT 6.1.7601 Service Pack 1