Header:
WISCONSIN ADMINISTRATIVE CODE
DEPARTMENT OF HEALTH SERVICES
CHAPTER DHS 105 PROVIDER CERTIFICATION
Date:
02/20/2014
Document:
DHS 105.17 Personal care providers
(1) DEFINITIONS. In this section:
(a) "Client" means an individual who receives personal care services from an entity certified or required to be cer-tified under this section, irrespective of whether that individual is a medicaid recipient.
(am) "Freestanding personal care agency" means an entity described in s. 49.45 (42) (d) 3. e., Stats.
(b) "Legal representative" means a person who is any of the following:
1. A guardian as defined under s. 54.01 (10), Stats.
2. A person appointed as a health care agent under an activated power of attorney for health care under ch. 155, Stats.
3. A person appointed as an agent under a durable power of attorney under s. 243.07, 1989 Stats., executed on or before April 28, 1990.
4. A parent of a minor child.
(c) "Principal" means an administrator, a person with management responsibility for the applicant, an officer or person owning directly or indirectly 5% or more of the shares or other evidences of ownership of a corporate appli-cant, a partner in a partnership which is an applicant, or the owner of a sole proprietorship which is an applicant.
(1c) REQUIREMENTS. For MA certification, a personal care provider shall be one of the following types of entities and shall meet applicable certification requirements:
(a) A home health agency licensed under s. 50.49, Stats., and ch. DHS 133.
(b) A county department established under s. 46.215, 46.22 or 46.23, Stats.
(c) A county department established under s. 51.42 or 51.437, Stats., which has the lead responsibility in the county for administering the community options program under s. 46.27, Stats.
(d) An independent living center as defined in s. 46.96 (1) (ah), Stats.
(e) A federally recognized American Indian tribe or band in Wisconsin.
(f) A freestanding personal care agency.
(1e) CONTRACTING, PLANNING AND COORDINATION; FIT AND QUALIFIED. A personal care provider shall do all of the following:
(a) Possess the capacity to enter into a legally binding contract.
(b) Present a proposal to the department to provide personal care services that does all of the following:
1. Documents cost-effective provision of services.
2. Documents a quality assurance mechanism and quality assurance activities.
3. Demonstrates that employees possess knowledge of and training and experience with special needs, including independent living needs, of the client group or groups receiving services.
(c) Provide a written plan of operation describing the entire process from referral through delivery of services and follow-up.
(d) Cooperate with other health and social service agencies in the area and with interested community referral groups to avoid duplication of services and to provide coordination of personal care services to clients.
(e) Be fit and qualified. All of the following factors are relevant to a determination by the department whether the applicant is fit and qualified for purposes of this paragraph:
1. Any adverse action against the applicant or any principal by a licensing agency of any state that resulted in de-nial, suspension, injunction, or revocation of a license to operate a human services or health care agency or facility.
2. Any adverse action against the applicant or any principal initiated by a state or federal agency based on non-compliance that resulted in civil money penalties, termination of a provider agreement, suspension of payments, or the appointment of temporary management of a facility or agency.
3. Any conviction of the applicant or any principal for a crime involving neglect or abuse of patients or of the el-derly or involving assaultive behavior or wanton disregard for the health or safety of others, or any act of abuse under s. 940.285 or 940.295, Stats., or similar law in another jurisdiction.
4. Any conviction of the applicant or any principal for a crime related to the delivery of personal care or other health care-related services or items, or for providing personal care or other health care-related services without a license or other form of permission required by law.
5. Any conviction of the applicant or any principal for a crime involving a controlled substance under ch. 961, Stats., or similar law in another jurisdiction.
6. Any conviction of the applicant or any principal for a crime involving a sexual offense.
7. Any prior financial failure of the applicant or any principal that resulted in bankruptcy or in the closing of a hu-man services or health care agency or facility or the relocation or discharge of such an agency's or facility's patients.
8. Any unsatisfied judgment against the applicant or any principal or any debts that are at least 90 days past due.
(1f) PROVISION OF INFORMATION. A county, independent living center or federally recognized American Indian tribe or band personal care provider shall provide, in a format approved by the department, identifying information about the county, independent living center or federally recognized American Indian tribe or band and those agencies and individuals that provide Medicaid personal care services through a contract with the county, independent living center or federally recognized American Indian tribe or band.
(1g) FINANCES; ACCOUNTING; RECORDKEEPING; BILLING. A personal care provider shall do all of the following:
(a) Cash flow. Document adequate resources to maintain a cash flow sufficient to cover operating expenses for 60 days.
(b) Accounting methods. Document a financial accounting system that complies with generally accepted accounting principles.
(c) Recordkeeping. Maintain all of the following records:
1. Written personnel policies.
2. Written job descriptions.
3. A written plan of operations indicating the entire process from making referrals through delivery of services and follow-up.
4. A written statement defining the scope of personal care services provided, including the population being served, service needs and service priorities.
5. A written record of personal care workers' training.
6. Workers' time sheets.
7. Contracts with workers and other agencies.
8. Records of supervisory visits.
(d) Billing. Bill the medical assistance program for services covered under s. DHS 107.112.
(1n) PERSONNEL MANAGEMENT. The personal care provider shall document and implement a system of personnel management, if more than one personal care worker is employed or under contract, that includes all of the following:
(a) 1. Evaluate every personal care worker and RN supervisor employed by or under contract with the provider periodically according to the provider's policy for quality of performance and adherence to the provider's policies and this chapter and s. DHS 107.112. Evaluations shall be followed up with appropriate action.
2. Provide orientation and on-going instruction for RN supervisors and personal care workers. Personal care workers shall receive orientation before providing services to a client. The titles of the persons responsible for con-ducting orientation and training shall be specified in the plan. The plan shall include a system for providing instruction when an evaluation of the RN's or personal care worker's performance or competency indicates additional instruction may be needed. Orientation shall include training on all of the following:
a. Policies and objectives of the provider.
b. Information concerning specific job duties. Training shall be provided for each skill the personal care worker is assigned and shall include a successful demonstration of each skill by the personal care worker to the qualified trainer, under the supervision of the RN supervisor, prior to providing the service to a client independently.
c. The functions of personnel employed by the provider and how they interrelate and communicate with each other in providing services.
d. Health and safety procedures for working in a home environment.
e. Epidemiology, modes of transmission and prevention of infections and the need for routine use of current in-fection control measures as recommended by the U.S. centers for disease control and prevention.
f. Responding to medical and non-medical emergencies.
g. Ethics, confidentiality of client information, and client rights.
3. Comply with the caregiver background check requirements under s. 50.065, Stats., and ch. DHS 12, including the disclosure requirements under s. 50.065 (2m), Stats., and s. DHS 12.115. The provider shall also comply with the caregiver misconduct reporting and investigation requirements under ch. DHS 13.
(b) Employ trained personal care workers as described under sub. (3), or train or arrange and pay for training of employed or subcontracted personal care workers as necessary. No employee or subcontractor may be assigned any duty for which he or she is not trained.
(c) Employ or contract with at least one registered nurse.
(d) 1. Supervise the provision of personal care services. Except as provided in subd. 2., services for all clients shall be supervised by a registered nurse according to the requirements set forth in s. DHS 107.112 (3) (a) and (c).
2. Clients who are not Medicaid recipients may choose to waive the requirements contained in s. DHS 107.112 (3) (c) for the supervisory review of the personal care worker, including a visit to the client's home every 60 days, through a written agreement between the client or the client's legal representative and the personal care agency. The agree-ment shall specify the requirements being waived by the client or the client's legal representative and the benefits of the requirement and probable consequences of the requirement not applying to the client. The agreement shall be included in the service agreement required s. DHS 105.17 (1w) (c).
(e) Employ or contract with personal care workers to provide personal care services.
(f) In the case of personal care workers who are not employees of the personal care provider, specify all required training, qualifications and services to be performed in a written personal care provider contract between the personal care provider and personal care workers, and maintain a copy of that contract on file.
(fm) Document performance of personal care services by personal care workers by maintaining time sheets of personal care workers which document the types and duration of services provided, by funding source.
(1r) INFECTION CONTROL AND PREVENTION. (a) The personal care provider shall develop and implement written policies for control of communicable diseases that take into consideration control procedures incorporated by refer-ence in ch. DHS 145 and that ensure that employees with symptoms or signs of communicable disease or infected skin lesions are not permitted to work unless authorized to do so by a physician or physician assistant or advanced practice nurse.
(b) 1. The personal care provider shall ensure that each new employee, before having direct contact with clients, is certified in writing by a physician, physician assistant or registered nurse as having been screened for tuberculosis, and clinically apparent communicable disease that may be transmitted to a client during the normal performance of the employee's duties. The screening shall occur within 90 days before the employee has direct client contact.
2. The personal care provider shall ensure that each continuing employee having direct contact with clients is pe-riodically screened for clinically apparent communicable disease by a physician, physician assistant, or registered nurse based on the likelihood of their exposure to a communicable disease, including tuberculosis. The exposure to a communicable disease may have occurred in the community or in another location.
(c) The personal care provider shall monitor employees' adherence to evidence-based standards of practice as recommended by the U.S. centers for disease control and prevention, or other evidence-based standards of practice, related to protective measures. When monitoring reveals a failure to follow evidence-based standards of practice, the provider shall provide counseling, education, or retraining to ensure staff is adequately trained to complete their job responsibilities.
(d) The personal care provider shall provide equipment and supplies necessary for all staff having direct care con-tact with the client to minimize the risk of infection.
(1w) CLIENT SERVICES. The personal care provider shall do all of the following:
(a) Acceptance. Assess a prospective client's appropriateness to be served by the provider without delay, unless the reason for the delay is justifiable and documented, and accept a client only if there is reasonable expectation that the client's needs can be met by the provider. If the provider accepts the applicant as a client, the provider shall promptly provide services to the individual. If the provider does not accept an applicant as a client, the provider shall inform the applicant of other personal care providers in the area or how to obtain a list of those providers.
(b) Information to provide to the client. The provider shall provide, in writing, prior to or at the time of accepting an applicant as a client, each client or the client's legal representative all of the following:
1. The provider's rules and the client's responsibilities under the provider's rules.
2. The procedures indicating the complaint or grievance process which shall include a statement on how the client can make a complaint to the department.
3. A statement of client's rights which shall include all of the following:
a. To be fully informed of these rights and of all of the provider's rules governing client responsibilities.
b. To be fully informed of services available from the provider.
c. To be informed of all changes in services and charges as they occur.
Note: For clients who are Medicaid recipients, personal care services are not subject to recipient cost sharing, per s. 49.45 (18) (b) 11., Stats., and the provider is prohibited from charging the recipient for services in addition to or in lieu of obtaining Medicaid payment, per s. 49.49 (3m), Stats.
d. To participate in the planning of services, including referral to a health care institution or other provider and to refuse to participate in experimental research.
dm. To have access to information about the client's health condition to the extent required by law.
Note: Section 146.83, Stats., and federal HIPAA regulations [45 CFR s. 164.524] generally require health care pro-viders to make health care records available for inspection by the patient.
e. To refuse service and to be informed of the consequences of that refusal.
f. To confidential treatment of personal and medical records and to approve or refuse their release to any indi-vidual outside the provider, except in the case of transfer to another provider or to a health facility, or as otherwise permitted by law.
g. To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs.
h. To be taught the service required so that the client can, to the extent possible, help himself or herself.
i. To have a person designated by the client taught the service required, so that, to the extent possible, the person designated can understand and help the client.
j. To have one's property treated with respect.
k. To complain about the care that was provided or not provided, and to seek resolution of the complaint without fear of recrimination.
L. To have the client's legal representative exercise the client's rights when the legal representative is legally au-thorized to do so.
(c) Service agreement. Before services are provided, the personal care provider shall inform the client, orally and in writing, of the extent to which payment may be expected from other sources, the charges for services that will not be covered by other sources and charges that the individual may have to pay.
Note: For clients who are Medicaid recipients, personal care services are not subject to recipient cost sharing, per s. 49.45 (18) (b) 11., Stats., and the provider is prohibited from charging the recipient for services in addition to or in lieu of obtaining Medicaid payment, per s. 49.49 (3m), Stats.
(d) Client records. Maintain all of the following records, if required in this section or s. DHS 107.112, for each client:
1. The nursing assessment, physician prescription, plan of care, personal care worker's assignment and record of all assignments, and record of registered nurse supervisory visits.
2. The record of all visits by the personal care worker, including observations and assigned activities completed and not completed.
3. Written acknowledgement of receipt by the client of the client's rights and responsibilities, provider rules and policies, and the department statement on how to register a complaint.
4. A copy of the discharge summary.
5. All of the information required under s. DHS 106.02 (9) (e) 2. for each of its clients.
(e) Client's preference for services. Give full consideration to a client's preferences for service arrangements and choice of personal care workers.
(f) Discharge of a client. 1. A personal care provider may discharge a client only for one or more of the reasons listed in subd. 2., 3., or 6. and only after discussing the reasons for the discharge with the client or the client's legal representative and the client's attending physician, when the physician has ordered personal care services, and providing written notice to the client or client's legal representative within the timelines specified in this paragraph.
2. The personal care provider shall provide written notice to the client or the client's legal representative at least 10 working days in advance of the discharge if the reason for the discharge is either of the following:
a. The provider is unable to provide the personal care services required by the client due to either a change in the client's conditions that is not an emergency, or the provider's documented inability to staff the case.
b. Non-payment for services.
3. The personal care provider shall provide written notice to the client or the client's legal representative at the time of the discharge if the reason for the discharge is the result of any of the following:
a. The safety of the personal care worker or nurse supervisor is compromised, as documented by provider staff.
b. The attending physician orders the discharge of the client for emergency medical reasons.
c. The client no longer needs personal care service as determined by the attending physician.
d. The client is abusing or misusing the personal care benefit as determined by the department or county agency under s. DHS 104.02 (5).
4. A copy of the written notice of discharge shall be placed in the client's medical record.
5. The personal care provider shall include all of the following in the written notice of discharge required under this paragraph:
a. The reason the provider is discharging the client.
b. The assistance the personal care provider is able to provide in arranging for continuity of all necessary personal care services.
c. A notice of the client's right to file a complaint with the department if the client believes the discharge does not comply with any of the provisions of this section and the department's toll-free complaint telephone number and the address and telephone number of the department's division of quality assurance.
Note: A complaint may be filed by writing the Bureau of Health Services, Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969 or by calling the department's toll-free complaint line at 1-800-642-6552 or by filing a complaint at http://dhs.wisconsin.gov/bqaconsumer/HealthCareComplaints.htm.
6. No written notification is necessary for discharge for any of the following reasons:
a. The client dies.
b. The client changes place of residence to a location in an area not served by the provider.
c. The client or the client's legal representative notifies the provider in writing to terminate services.
7. The personal care provider shall complete a written discharge summary within 30 calendar days following dis-charge of a client or voluntary termination of services by the client or the client's legal representative. The discharge summary shall include a description of the care provided and the reason for discharge. The personal care provider shall place a copy of the discharge summary in the former client's medical record. Upon request, the personal care provider shall provide a copy of the discharge summary to the former client, the client's legal representative, the at-tending physician, or advanced practice nurse prescriber.
Note: A complaint may be filed by writing the Bureau of Health Services, Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969 or by calling the department's toll-free complaint line at 1-800-642-6552 or by filing a complaint at http://dhs.wisconsin.gov/bqaconsumer/HealthCareComplaints.htm.
(h) Client grievances and complaints. Provide and document a grievance mechanism to resolve clients' complaints about personal care services, including a personal care provider's decision not to hire a client's choice of a personal care worker. The procedure shall set forth a procedure for clients to register complaints with the department.
(2) QUALIFICATIONS AND DUTIES OF THE REGISTERED NURSE SUPERVISOR. (a) Qualifications. A personal care provider shall employ or contract with an RN supervisor who shall have all of the following qualifications:
1. Current licensure as a registered nurse under s. 441.06, Stats.
2. Training and experience in the provision of personal care services or in a related program.
3. At least one year of supervisory or administrative experience in personal care services or in a related program.
(b) Duties. The RN supervisor shall perform all of the following duties:
1. Evaluate the need for service and make referrals to other services as appropriate.
2. Secure written orders from the client's physician. These orders are to be renewed once every 3 months unless the physician specifies that orders covering a period of time up to one year are appropriate, or when the client's needs change, whichever occurs first. Physician orders for personal care services are not required for clients who are not Medicaid recipients unless the personal care service is a delegated medical act as defined in s. N 6.02 (4). This provi-sion does not mitigate the RN supervisor's responsibility to follow the standards contained in ch. N 6.
3. Develop a plan of care for the client, giving full consideration to the client's preferences for service arrange-ments and choice of personal care workers, interpret the plan to the personal care worker, include a copy of the plan in the client's health record, and review the plan at least every 60 days and update it as necessary.
3m. Promptly notify a client's physician or other appropriate medical personnel and legal representative, if any, of any significant changes observed or reported in the client's condition.
4. Develop appropriate time and service reporting mechanisms for personal care workers and instruct the workers on their use.
5. Give the personal care worker written instructions about the services to be performed and arrange for an ap-propriate person to demonstrate to the personal care worker how to perform the services.
6. Evaluate the competency of the personal care worker to perform the services.
(3) QUALIFICATIONS AND DUTIES OF PERSONAL CARE WORKERS. (a) Qualifications. Personal care workers shall have the following qualifications:
1. Be trained under s. DHS 105.17 (1n) (a) 2. and (b) in the provision of personal care services, and in each skill that the personal care worker is assigned.
2. Provide documentation of required training to the personal care provider for the provider's records;
3. Be a person who is not a legally responsible relative of the client under s. 49.90 (1), Stats.
(b) Duties. Personal care workers shall do all of the following:
1. Perform tasks assigned by the RN supervisor.
2. Report in writing to the RN supervisor on each assignment.
3. Promptly report any significant changes observed or reported in the client's condition to the RN supervisor.
4. Confer as required with the RN supervisor regarding the client's progress.
5. Upon coming in contact with blood or other potentially infectious materials including those that are air-borne, non-intact skin, or mucus membranes in caring for clients, practice infection control measures as recommended by the U.S. centers for disease control and prevention.
(4) INSPECTIONS AND INVESTIGATIONS. (a) 1. The department's division of quality assurance may make any in-spections and investigations, including complaint investigations, it considers necessary and may review clinical and administrative records, policies and other documents required under this section or s. DHS 107.112.
2. Any interference with or refusal to allow or cooperate with any inspection or investigation under this subsection may be grounds for termination of MA certification.
(b) The department may contact clients of personal care providers as part of an inspection or investigation. The provider shall provide the department a list of names, addresses and other identifying information of current and past clients as may be requested. The department may select the names of the clients to be contacted and may contact these clients upon the client's approval.
(c) Upon determining that a personal care provider is not compliant with one or more certification requirements under this section or s. DHS 107.112, the department shall promptly notify the provider of the specific rule violated, state the facts that constitute the deficiency and specify the date by which the provider is required to correct the defi-ciency.
(5) MA APPLICATION REQUIREMENTS; FREESTANDING PERSONAL CARE AGENCIES. (a) Definitions. In the section, "branch office" means a location or site from which a personal care agency provides services within a portion of the total geographic area served by the personal care agency. "Parent agency" means a personal care agency with one or more branch offices.
(ag) Application for MA certification. For MA certification, a freestanding personal care agency shall submit an ap-plication on forms provided by the department, and provide all information requested on the forms. The application shall be fully completed and submitted with the applicable nonrefundable fee in an amount established by the de-partment.
(ar) Multiple locations. A branch office shall separately apply and be separately certified if the department deter-mines that the branch office, because of the volume of services provided or the distance between the branch office and the parent agency, cannot adequately share supervision and administration of services with the parent agency. Each office the department finds to be necessary shall submit a separate application under this subsection and shall independently satisfy all requirements for certification set forth in this section, except that the requirements under s. DHS 105.17 (1e) (b), (1g) (a) and (b), (1n), and (1w) (h) may be satisfied by policies and practices that are adopted by the entity that owns or controls the agency, and that are applicable to all required offices of the agency. If a branch agency is not separately approved from a parent agency, the parent agency shall be deemed to be in violation of this chapter or s. DHS 107.112 if the branch is in violation.
Note: To obtain a copy of the application forms, send your request to the Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969. The street address is 1 W. Wilson Street in Madison. The e-mail address is: Dhswebmaildqa@wisconsin.gov. The completed application forms should be sent to the same office.
Note: Fees are permitted under s. 49.45 (42) (c), Stats., and set and periodically revised by the Department's Divi-sion of Quality Assurance. Fees may vary based on a number of factors including revenues from operations.
(b) Issuance of certification. Following receipt of a complete application for MA certification or for a change in cer-tification when there has been a change in the ownership of a freestanding personal care agency, the department shall review the application and investigate the applicant and principals to determine the applicant's ability to comply with this section and s. DHS 107.112. Except as provided in par. (c), within 90 days after receiving a complete application, the department shall either approve the application and issue the certification or deny the application. Except as provided in par. (c), a certification issued under this section is valid indefinitely unless sooner terminated or suspended under s. DHS 106.05, 106.06 or 106.065.
(c) Provisional certification. 1. The department may, within the 90-day period in par. (b), issue a provisional certi-fication for a term of up to one year under any of the following circumstances:
a. The department has not completed its investigation of the applicant within 90 days after receiving a completed application.
b. The applicant attests that at the time of or within 6 months prior to the application, the applicant had been under contract with a Medicaid certified personal care provider that is a county agency, independent living center, federally-recognized American Indian tribe or band in Wisconsin or home health agency to provide Medicaid personal care services, and that the applicant is in compliance with this section and s. DHS 107.112.
2. Within 90 days before its provisional certification expires, a provisionally certified personal care provider shall submit a written request to the department for an on-site survey. The provider shall show that the provider has served at least 5 clients requiring personal care services during the period of provisional certification. At the time of the on-site survey the provider shall be providing personal care services to at least 2 clients.
(d) Annual reporting and fee. 1. Every 12 months, on a schedule determined by the department, a certified free-standing personal care agency shall submit an annual report to the department in the form and containing the infor-mation that the department requires. The freestanding personal care agency shall submit with the report a fee in an amount determined by the department. If a complete annual report and fee are not timely submitted to the depart-ment, the department shall issue a warning to the freestanding personal care agency.
2. The department may terminate certification of a freestanding personal care agency that does not submit a completed report and fee to the department within 60 days after the date established by the department in subd. 1.
Note: Fees are permitted under s. 49.45 (42) (c), Stats., and set and periodically revised by the Department's Divi-sion of Quality Assurance. Fees may vary based on a number of factors including revenues from operations.
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