Notice is hereby given that pursuant to s. 46.297, Stats., and according to the procedure set forth in s. 227.16 (2) (e), Stats., the Department of Health and Family Services will repeal, renumber, renumber and amend, amend, repeal and recreate and create provisions in a variety of Wisc. Admin. Code chapters administered by the Department, as herein proposed, without public hearing, unless the Department receives a petition for a hearing within 30 days after the publication of this notice on May 15, 2003. A petition for a hearing will be accepted if signed by any of the following who will be affected by the proposed rule: 25 persons; the representative of an association that represents a farm, labor, business or professional group; or a municipality.

If you have any questions about these proposed rule changes or about filing a written petition for a hearing, contact Larry Hartzke, Office of Legal Counsel, P.O. Box 7850, Madison, WI 53707-7850, 608-267-2943 or via email at hartzlr@dhfs.state.wi.us.

This proposed rulemaking order contains a variety of minor revisions to the Department's administrative rules. These revisions have little substantive effect on those regulated by the rules. The Department is issuing these changes in a single order to conserve limited agency resources while making necessary updates and improvements in the Department's body of administrative code.

Changes to the following provisions are being proposed for the following purposes:

• HFS 56.02 (2) [Foster Home Care for Children] in Section 1 to give licensing agencies the ability to grant an exception to the requirements in s. HFS 56.04 (4) (a) 3., 56.05 (4) (a) and 56.07 (4) (d);

•HFS 83.05 (1) (c) in Section 2 to fix a spelling error;

•HFS 90.05 (4) (a) [Early Intervention Services for Children From Birth to Age 3 With Developmental Needs] in Section 3 to add language limiting the time within which complaints that administrative procedures were violated can be submitted and to make the provision consistent with recently revised federal regulations;

•HFS 90.05 (4) (c) 1. in Section 3 to remove a requirement that the Department must provide notice that a complainant or agency may request review of a Department decision by the Secretary of the U.S. Dept. of Education, because the requirement was removed from federal regulations;

•HFS 90.06 (2) (m) in Section 4 to repeal a provision requiring that a county administrative agency ensure that an impartial decision-maker be appointed to resolve complaints of parents under s. HFS 90.12 (5) because the Department now appoints the hearing officer;

•HFS 90.08 (3) (b) 3. in Section 5 to reflect the fact that occupational therapists are now licensed instead of certified;

•HFS 90.08 (3) (b) 11. in Section 5 to amend references from “educators" to “teachers;"

•HFS 90.10 (2) (b) (intro) in Section 6 to change the reference from an “eligible" child to simply a “child" because at that point in the provision, a child has not yet been found eligible;

•HFS 90.11 (1) (b) 7. in Section 7 to correct an erroneous cross reference;

•HFS 90.11 (3) (b) in Section 7 to change what a third party may be billed for from “early intervention core services" to “evaluation and assessment activities" because the core services in s. HFS 90.11 (3) (a) include services that are not billed to third parties or do not require consent to bill;

•HFS 90.11 (6) (a) 4. in Section 7 to reflect the fact that occupational therapists are now licensed instead of certified;

•HFS 90.11 (6) (a) 10. in Section 7 to remove the requirement that RNs have a bachelor's degree within 5 years after July 1, 1992;

•HFS 90.11 (6) (a) 11. in Section 7 to remove reference to rehabilitation counselors employed by the Department's division of vocational rehabilitation because such positions no longer exist in the Department;

•HFS 90.11 (6) (a) 14. in Section 7 to amend references from “educators" to “teachers" and from “licensed under ch. 115, Stats., and ch. PI 3" to “licensed through the department of public instruction;"

•HFS 90.12 (6) (e) in Section 8 to remove the reference to the inapplicability of sections 227.52 to 227.58, Stats., to actions under par. (e) and create a new paragraph that states such inapplicability to actions under the entire section of HFS 90.12 so the language parallels that used by the Department of Public Instruction and recommended by the Division of Hearings and Appeals;

•HFS 101.03 (49) [Medicaid Introduction and Definitions] in Section 9 to amend the definition of the term “Drug index" to exclude medical supplies because the drug index is a list of covered legend and non-legend drugs covered by the Department and it does not include a list of supplies;

•HFS 105.01 (3) (intro) [Medicaid Provider Certification] in Section 10 to promote truthful and accurate reporting of information;

•HFS 105.39 (4) (b) 2. and 3. in Sections 11 and 12 to delete an outdated grandfather clause;

•HFS 105.41 (title) and (intro) in Section 13 to update requirements to reflect current terminology and eliminate ambiguities, to reflect a changed statutory cross reference, and to recognize certification of hearing specialists;

•HFS 105.52 (1) (L) and 105.52 (2) (a) 1., 6., 7. and 8. in Section 14 to update language to reflect current terminology and to correct errors;

•HFS 105.53 (3) (a) 3. and 4., (c) 1. and (6) (b) in Section 15 to update language to reflect current terminology and changes in interpretation of law by the federal Centers for Medicare and Medicaid Services;

•HFS 106.03 (2) (c) [Medicaid Provider rights and Responsibilities] in Section 16 to add a phrase the Department inadvertently omitted at the time of the rule's original promulgation;

•HFS 106.06 (8) and (25) in Section 17 to improve language to increase viability of enforcement actions;

•HFS 107.02 (2m) (a) 10. in Section 18, 107.10 (1) and (Note) [Medicaid Covered Services] in Section 19, 107.11 (6) (b) 5. in Section 24 and 107.12 (1) (e) in Section 25 to recognize the legal status of advanced practice nurse prescribers;

•HFS 107.02 (2m) (c) in Section 18 to clarify the intent of the provision that prescriptions for recipients not declared legally blind or permanently disabled must specify the length of time specialized transportation is required and to provide a useful cross reference.

•HFS 107.10 (2) (a) in Section 20 to eliminate an outdated reference to schedule II stimulant drugs;

•HFS 107.10 (2) (d) in section 21 to clarify the Department's ability to decide which drugs require prior authorization;

•HFS 107.10 (3) (b) to (d) in section 21 to clarify the terms “legend" and “generic" drugs and the 34-day supply requirement;

•HFS 107.10 (3) (h) (intro) in Section 21 and 107.10 (3) (h) 8. in Section 22 to clarify requirements for nursing homes to provide drugs and when non-legend drugs may be covered;

•HFS 107.10 (3) (i), (4) (L) and (5) (a) in Section 23 to clarify the meaning and use of the term “innovator multiple source drug;"

•HFS 107.24 (2) (a), (3) (h) 1. (intro) and 2. and (5) (j) in Section 26 to change terminology form “hearing aid dealer" to “hearing instrument specialist;"

•HFS 107.36 (1) (a) 4., (b) to (i), (2) (a) and (b) 2. in Section 27 to delete the use of the abbreviation “IFSP," to change requirements for physician prescription for therapy services, change requirements for licensing of providers to accurately cross reference the appropriate Wisconsin requirements, to clarify and update a provision related to transportation services, clarify when durable medical equipment is a covered service under school-based services, and to clarify the age range of eligible recipients;

•HFS 111. 03 (36) [Licensing of Emergency Medical Technicians-Intermediate and Approval of Emergency Medical Technician-Intermediate Operational Plans] in Section 28 to correct (and extend) the date after which temporary licenses will no longer be issued;

•HFS 120.02 [Health Care Information] in Section 29 to correct a spelling error;

•HFS 120.03 (4m) in Section 30 to define the term “claims data;"

•HFS 120.03 (7) (Note) in Section 31 to correct the web address;

HFS 120.03 (13) in Section 31 and 120.12 (6) (a) in Section 38 to change the reference from the federal “health care financing administration" to “centers for medicare and medicaid;"

•HFS 120.03 (20) and (36) in Section 31 to update the reference pertaining to billing forms to reflect that the Department's collection of physician office visit data is consistent with electronic data exchange standards required for the federal Health Insurance Portability and Accountability Act, effective in the fall, 2003;

•HFS 120.03 (28) in Section 31 to add “physician office visit data" to the types of data that do not allow the identification of an individual from the elements released in the data files;

•HFS 120.03 (29) in Section 31 to clarify the definition of a “qualified vendor;"

•HFS 120.03 (30) (Note) in Section 31 to clarify the Department's intent regarding the type of data required to be submitted in the Department's statement of examples;

•HFS 120.03 (34) in Section 31 to correct the language to reflect the fact that the Department is not a party to the contract in a trading partner agreement;

•HFS 120.05 (2) in Section 32 and 120.11 (3) (c) in Section 33 to allow electronic communications in a format specified by the Department;

•HFS 120.11 (3) (d) 1. in Section 33 to reduce the time within which facilities must verify data and add appropriate cross references to reflect the fact that the provision should also apply to hospital ambulatory surgery and freestanding ambulatory surgery center data;

•HFS 120.11 (3) (f) in Section 34 to correct an original error insofar as the requirement should only apply to physician office visit data collection; not to hospital and freestanding ambulatory surgery center data;

•HFS 120.11 (4) (e) in Section 35 to clarify terminology and the process for disputing data;

•HFS 120.12 (1) (b) 2., 120.12 (2) (c) 2. a., 120.12 (3) (c) 3. and 120.12 (5) (b) 4. in Section 36, 120.12 (5m) (b) 4. and 120.12 (6) (c) 3. in Section 38, 120.13 (2) (b) in Section 39, 120.14 (1) (b) 3. in Section 40, 120.14 (1) (c) 9. in Section 44, 120.14 (3) (b) 2. in Section 44 and 120.15 (3) (b) in Section 45 to replace the confusing term “catastrophic" with a term that implies a lower threshold of computer malfunction;

•HFS 120.12 (2) (b) 1. in Section 36 to update the national standard for reporting data to the Department;

•HFS 120.12 (3) (b) 11. and (c) 1. in Section 36 to update the basis upon which hospitals report data;

•HFS 120.12 (5) (b) 2. in Section 36, 120.12 (5m) (b) 2. and (6) (c) 2. in Section 38 and 120.13 (2) (a) in Section 39 to conform to the existing Department practice giving entities 45 rather than 30 days to submit pertinent data;

•HFS 120.12 (5m) (a) 30. and 31. in Section 37 to add patient race and ethnicity to the list of data hospital emergency departments report to the Department, thereby making it consistent with the Department's collection of other hospital data under section HFS 120.12 (5) (a);

•HFS 120.12 (5m) (b) 5. a. in Section 38 to eliminate the requirement that hospitals using qualified vendors notarize the data submitted to the Department;

•HFS 120.14 (1) (b) 1. in Section 40 to give the Department more flexibility in specifying data transmission requirements;

•HFS 120.14 (b) 2. in Section 40 to recognize the fact that data are currently reported quarterly and give the data submitter more flexibility with the timing of their submission;

•HFS 120.14 (1) (b) 4. a. in Section 40 to simplify the administration of the trading partner agreement;

•HFS 120.14 (1) (b) 4. b. in Section 40 to extend to delegated representatives of physicians accountability for failure to submit and edit data;

•HFS 120.14 (1) (b) 5. in Section 40 to correct a typographical error;

•HFS 120.14 (1) (b) 6. in Section 40 to extend to qualified vendors the prohibition of submitting data to the Department that uses specified information as patient account numbers;

•HFS 120.14 (1) (c) 2. (intro) in Section 40 to increase program operating efficiencies by allowing the Department to delete the data it receives rather than returning it to the sender;

•HFS 120.14 (1) (c) 3. and 4. in Sections 41 and 42 to put the provisions in a more appropriate order, to extend applicability of the provision to qualified vendors, and to clarify the requirements under subdivision paragraph 4. b.;

•HFS 120.14 (1) (c) 4. c. in Section 43 to eliminate a provision no longer needed after the order of section HFS 120.14 (1) (c) 3. and 4. is reversed;

•HFS 120.14 (1) (c) 5. in Section 44 to extend applicability of the provision to persons delegated by the physician to review and verify data;

•HFS 120.14 (1) (e) 1. in Section 44 to require physicians who submit electronic claims data after 1998 to also submit their data to the Department electronically;

•HFS 120.14 (1) (e) 4. in Section 44 to correct a naming error;

•HFS 120.20 (3) (b) in Section 46 to expand applicability of open record exemptions to data covered under section HFS 120.11 because the section contains a substantial amount of confidential communication between the physician and the Department;

•HFS 120.21 (1) (a) in Section 47 and 120.22 (1) (a) 1. in Section 48 to clarify the name of “annual hospital fiscal year survey" by adding the term "year;"

•HFS 124.05 (3) (h) [Hospitals] in Section 49 to include “in situ carcinoma of the cervix uteri" on the list of non-reportable cancers to reflect federal guidelines modified because the Centers for Disease Control determined that routine collection of such data is incomplete due to the inconsistent collection of other High Grade Neoplasia by cancer registries; moreover, the data are not comparable over time due to changing terminology and diagnostic criteria;

•HFS 124.12 (5) (b) 11. in Section 50 to conform with the policy allowing verification of medical staff orders within 72 hours instead of 24 hours, as expressed in numbered memo BQA-98-050;

•HFS 132.42 (3) (a) [Nursing Homes] in Section 51, 132.42 (4) in Section 52, 132.51 (2) (b) 1. in Section 54 and 132.52 (2) (c) in Section 55 to conform with federal Americans with Disabilities Act requirements;

•HFS 132.44 (1) (b) in Section 53 to delete reference to training requirements because training requirements are specified in both federal regulations, s. 146.40 of the Wisconsin statutes and chapter HFS 129;

•HFS 132.66 (1) (d) in Section 56 to remove an outdated restriction against physician extenders giving orders for skilled care residents for blood, lab and radiology services and thereby make it consistent with federal regulations and Department policy as expressed in numbered memo BQC-91-050;

•HFS 133.03 (8) [Home Health Agencies] in Section 57 to make reference to the Department of Administration's Division of Hearings and Appeals more accurate;

•HFS 134 (title) [Facilities for the Developmentally Disabled] in Section 58, 134.11 in Section 59, 134.12 (1) in Section 60, 134.13 (7) and (note), (12), (13) and (39) (intro) in Section 61, 134.14 (1), (2) (a) (intro) and (5m) in Section 62, 134.815 (1) and (2) (a) in Section 63, and 134.82 (title) in Section 64 to revise a name to be "people with developmental disabilities;"

•HFS 134.12 (1) in Section 60 to clarify the applicability of chapter HFS 134;

•HFS 134.13 (10) (a) in Section 61 to update the provision with current practice by cross referencing the dietitian certification requirements under section 448.78 of the Wisconsin statutes;

•HFS 134.13 (17) in Section 61 to improve the definition of “interdisciplinary team;"

HFS 144.03 (2) (b), (c) and (e) and Tables HFS 144.03-A footnotes 1. and 4. [Immunization of Students] in Section 65 to incorporate a new recommendation made by the federal Centers for Disease Control's Advisory Committee on Immunization Practices allowing a 4-day grace period for receipt of vaccines; the rule would apply only to date-specific vaccine requirements;

•HFS 145.05 (2), (3) and (4) (Note) [Control of Communicable Diseases] in Section 66 to update the applicable edition of the American Public Health Association's document “Control of Communicable Diseases Manual;"

•HFS 155 [Injury Prevention Grants] in Section 67 to repeal the a chapter concerning grants for injury prevention under section 146.56 (3) of the 1991 statutes that no longer exists in Wisconsin statutes;

•TCB 1.04 (1) (d) 1. b. [Tobacco Control Board] in Section 68 to modify the one of the Tobacco Control Board's performance -based standards; and

•TCB 1.07 (1) (a) in Section 69 to give the grant manager discretion to approve the use of grant award monies for the purchase of tobacco use cessation medications.

•By the presentation of this list, the Department is not representing that the list constitutes all possible minor errors and technical changes needed in the Department's administrative code. The Department recognizes its administrative rules frequently need changing due to periodically changing statutes, rules, federal laws and societal change. Consequently, the Department intends to continually collect and propose for promulgation non-substantive and technical rule changes as the Department learns of the need and justification for such changes.

The Department's authority to repeal and recreate these rules is found in ss. 48.67, 49.45 (10), 50.02 (2) (a), 50. 36 (1), 50.95 (1), 51.44 (5) (a), 52.02 (4), 153.75, 227.11 (2) (a), 252.02 (4), 252.04 (1), (2) and (10), 252.07 (11), 254.51 (3) and 255.15 (1m) (c), Stats. The rules interpret ss. 48.62, 48.66, 48.68, 48.75, 49.43 to 49.497, 50.02 (2) (a) and (3), 50.035, 50.36 (1), 50.95 (1), 51.44, 153.05 (5) and (8), 153.45 (3), 153.75, 252.02 (4), 252.04 (1) to (7) and (10), 252.07 (11) and 255.15 (1m), Stats.