Section 46.27. Long-term support community options program.

 

(1)   Definitions. In this section:

(a) “Aging unit" means an aging unit director and necessary personnel, directed by a county commission on aging and organized as one of the following:

1. An agency of county government with the primary purpose of administering programs of services for older individuals of the county.

2. A unit, within a county department under s. 46.215 , 46.22 or 46.23 , with the primary purpose of administering programs of services for older individuals of the county.

3. A private corporation that is organized under ch. 181 and that is a nonprofit corporation, as defined in s. 181.0103 (17) .

(ad) “Alzheimer's disease" has the meaning given under s. 46.87 (1) (a) .

(ag) “Caregiver" has the meaning given under s. 46.87 (1) (b) .

(ai) “Community-based residential facility" means a facility that meets the definition in s. 50.01 (1g) and that is licensed under s. 50.03 (1) .

(ar) “Hospital" has the meaning provided in s. 50.33 (2) .

(b) “Nursing home" means a facility that meets the definition in s. 50.01 (3) and that is licensed under s. 50.03 (1) and includes a state center for the developmentally disabled and a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 .

(bm) “Private nonprofit agency" means a nonprofit corporation, as defined in s. 181.0103 (17) , which provides a program of all-inclusive care for the elderly under 42 USC 1395eee or 1396u-4 .

(c) “Program" means the long-term support community options program.

(cm) “Recuperative care" has the meaning given under s. 50.01 (5m) .

(d) “Residence" means the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence shall be prima facie evidence of intent to remain.

(dm) “Respite care" has the meaning given under s. 50.01 (6g) .

(dr) “State-operated long-term care facility" means a state center for the developmentally disabled and a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 .

(e) “Voluntary" means according to an individual's free choice, if competent, or by choice of his or her guardian, if the individual is adjudicated incompetent.

(2)   Departmental duties. The department shall:

(b) Coordinate the program with:

1. Discharge planning from hospitals;

2. Periodic on-site inspections of patient care under 42 USC 1396a (a) (31); and

3. The protective service system under ch. 55 .

(c) Review and approve or disapprove the selection of a county department or aging unit under sub. (3) (b) to administer the program.

(d) In consultation with representatives of counties, hospitals and nursing homes and with recipients of long-term community support services, develop guidelines for implementing the program and criteria for reviewing community options plans from counties participating in the program. The guidelines and criteria shall address cost-effectiveness, scope, feasibility and impact on the quality and appropriateness of health services and social services and shall provide counties with maximum flexibility to develop programs that address local needs.

(e) Review and approve or disapprove the community options plan of each county participating in the program.

(f) Evaluate the cost-effectiveness of the program, the ability of the program to provide alternatives to institutional care of persons and the reasons why any county department or aging unit administering the program finds that a community arrangement is not feasible under sub. (6) (d) .

(g) After December 31, 1985:

1. Require that a county, by use of a form provided by the department or other appropriate procedure, ensure that persons receiving services under this section meet the eligibility requirements for the program.

2. Periodically monitor the implementation of the program.

(h) Promulgate all of the following as rules:

1. Adoption of a long-term community support service fee schedule as part of the uniform fee schedule under s. 46.03 (18) that is substantially similar to the fee calculation schedule existing on January 1, 1985, that was developed as a part of the guidelines required under par. (d) .

2. Conditions of hardship under which the department may grant an exception to the requirement of sub. (6r) (c) .

(i) Review and approve or disapprove waiver requests under sub. (3) (f) , review and approve or disapprove requests for exceptions under sub. (6r) (c) and provide technical assistance to a county that reaches or exceeds the annual allocation limit specified in sub. (3) (f) in order to explore alternative methods of providing long-term community support services for persons who are in group living arrangements in that county.

(j) By January 1, 1997, develop a model contract for use by counties for purchase of long-term community support services for persons who reside in community-based residential facilities. The governor and the joint committee on finance shall approve the model contract before it is implemented.

(k) Review and approve or disapprove the terms of risk reserve escrow accounts created under sub. (7) (fr) and approve or disapprove disbursements for administrative or staff costs from the risk reserve escrow accounts.

(2m)   Reimbursement disallowances. The department may disallow reimbursement under this section for services provided to persons who do not meet the eligibility requirements.

(3)   Duties of participating counties. The county board of supervisors of any county participating in the program shall:

(a) Create an interagency long-term support planning committee, with the composition and the duties specified under sub. (4) .

(b) Designate one of the following, subject to departmental review and approval, to administer the program:

1. A county department under s. 46.215 or 46.22 .

2. A county department under s. 51.42 to which the powers and duties of a county department under s. 51.437 have been transferred under s. 51.437 (4g) (b) .

3. A county department under s. 46.23 .

4. The director of the county department of human services who is appointed under s. 46.21 (1m) .

5. The departments under subds. 1. and 2. jointly, if the county long-term support planning committee develops no more than one annual community options plan under sub. (4) .

6. An aging unit.

(c) Develop procedures and phases for gradual implementation of this section in accordance with guidelines and criteria the department develops under sub. (2) (d) .

(cm) Review and approve, disapprove or amend a community options plan to participate in the program, prior to submitting the plan to the department.

(d) Ensure that the program uses existing county resources and personnel to the greatest extent practicable and enhances the effectiveness of discharge planning from hospitals.

(e) Except as provided in sub. (3g) , after implementing the program for 12 months and within the limits of state and federal funds allocated under sub. (7) , provide noninstitutional community alternatives for a significant number of persons in each of the groups listed in sub. (4) (a) 1. and eligible under sub. (6) . The department shall determine what constitutes a “significant number of persons" for each participating county, based on county size and on the statewide proportion of persons from each group receiving medical assistance in a nursing home, and, beginning on January 1, 1994, shall annually adjust each determination to reflect changes in the state population of eligible persons and to reflect purposes for which increased funds, if any, are appropriated by the legislature for the program. If a county fails to meet the “significant number of persons" requirement under this paragraph, all of the following apply:

1. For a county with an annual allocation for provision of long-term community support services under sub. (7) (b) that exceeds $185,000, the department shall, unless the department finds that an emergency or unusual circumstance exists, designate a portion of the county's allocation for increased service in each calendar year that the county fails to meet the requirement, to one or more of the groups specified under sub. (4) (a) 1. a. to e.

2. For a county with an annual allocation for provision of long-term community support services under sub. (7) (b) that is $185,000 or less, the department may designate a portion of the county's allocation for increased service in each calendar year that the county fails to meet the requirement, to one or more of the groups specified under sub. (4) (a) 1. a. to e.

(f) Beginning on January 1, 1996, from the annual allocation to the county for the provision of long-term community support services under subs. (7) (b) and (11) , annually establish a maximum total amount that may be encumbered in a calendar year for services for eligible individuals in community-based residential facilities, unless the department waives the requirement under sub. (2) (i) or approves a request for an exception under sub. (6r) (c) .

(h) Identify the service needs of persons with Alzheimer's disease and of their caregivers.

(3g)   Waiver of requirements. The department may waive requirements under sub. (3) (e) for a county if the county is able to demonstrate one of the following:

(a) That the county has disproportionately lengthy waiting lists for services under sub. (7) or under sub. (11) for one or more of the groups listed in sub. (4) (a) 1.

(b) That demographic or other data indicate that the county's population is significantly at variance with the statewide proportion of persons from each group listed in sub. (4) (a) 1. receiving medical assistance in a nursing home.

(3m)   Powers and duties of a private nonprofit agency. A private nonprofit agency with which the department contracts for service under sub. (11) (c) 5. shall have the powers and duties under this section of a county department designated under sub. (3) (b) to administer the program.

(4)   Planning committee.

(a) The county board of supervisors shall select the county long-term support planning committee, which shall include at a minimum the following members:

1. At least 5 persons receiving long-term community support services, each of whom represents one of the following groups:

a. Elderly persons;

b. Physically disabled persons;

c. Developmentally disabled persons;

d. Chronically mentally ill persons;

e. Chemically dependent persons;

2. Two elected county officials;

3. One county health representative;

4. One representative of the county department under s. 46.215 or 46.22 ;

5. One representative of the county department under s. 51.42 or 51.437 ; and

6. One representative of the county commission on aging.

(am) If the governing board of a resource center assumes under s. 46.283 (6) (b) 10. the duties of the county long-term support planning committee under this subsection, the county long-term support planning committee for the county is dissolved.

(c) The planning committee shall develop, or, if the governing board of a resource center has under s. 46.283 (6) (b) 10. assumed the duties of the planning committee, the governing board of the resource center shall recommend a community options plan for participation in the program. The plan shall include:

1. A description of the county's proposed program, including the estimated numbers of persons to be assessed and the procedures to be used in performing assessments.

2. A description of the services available and the services to be developed or expanded as alternatives to institutional care under this program.

3. A description of the procedures to be used to coordinate the program with other county agencies, hospitals, nursing homes and providers of community support services.

4. A description of the method to be used to coordinate the use of funds received under this program with the use of other funds allocated to the county under ss. 46.495 (1) (d) , 46.80 (5) and 46.85 (3m) (b) 1. and 2. and to county departments under s. 51.423 .

5. A description of the method to be used by the committee or, if the governing board of a resource center has under s. 46.283 (6) (b) 10. assumed the duties of the planning committee, the governing board of the resource center to monitor the implementation of the program.

6. A description of outreach procedures to be used to ensure that significant numbers of people from each group listed in sub. (3) (e) will be served by the program.

7. A description of services and programs to be provided to meet the needs of persons with Alzheimer's disease.

8. If a contract with an entity under s. 46.284 (2) is established in the county, a description of how the activities of the entity relate to and are coordinated with the county's proposed program.

(5)   County department or aging unit duties. The county department or aging unit selected to administer the program shall:

(am) Organize assessment activities specified in sub. (6) . The county department or aging unit shall utilize persons for each assessment who can determine the needs of the person being assessed and who know the availability within the county of services alternative to placement in a nursing home. If any hospital patient is referred to a nursing home for admission, these persons shall work with the hospital discharge planner in performing the activities specified in sub. (6) . The county department or aging unit shall coordinate the involvement of representatives from the county departments under ss. 46.215 , 46.22 , 51.42 and 51.437 , health service providers and the county commission on aging in the assessment activities specified in sub. (6) , as well as the person being assessed and members of the person's family or the person's guardian. This paragraph does not apply to a county department or aging unit in a county in which the department has contracted with an entity under s. 46.284 (2) .

(b) Within the limits of state and federal funds allocated under sub. (7) , arrange service contracts under s. 46.036 and ensure the provision of necessary long-term community support services for each person who meets the criteria specified in sub. (6) (b) . No county department or aging unit may use funds allocated under sub. (7) (b) to provide services in any community-based residential facility unless the county department or aging unit uses as a service contract the approved model contract developed under sub. (2) (j) or a contract that includes all of the provisions of the approved model contract.

(c) Within the limits of state and federal funds allocated under sub. (7) , provide for ongoing care management services in accordance with the requirements established under sub. (6d) (a) 1. , periodic case plan review and follow-up services for any person receiving long-term community support services under sub. (6) (b) .

(d) Determine, under sub. (6u) , the cost-sharing obligations, if any, for all persons who meet the criteria specified in sub. (6) (b) and are applying for or receiving long-term community support services that are funded under sub. (7) or (11) .

(e) Within the limits of state and federal funds allocated under sub. (7) and in accordance with the county's plan for gradual implementation and the requirements under sub. (6) (a) 3. , apply the program to any person residing in a nursing home who wants to be assessed and to receive long-term community support services, and coordinate the program with the protective services system under ch. 55 .

(h) Within the limits of state and federal funds allocated under sub. (7) and in accordance with the county's plan for gradual implementation, apply the program to any person who has been diagnosed by a physician as having Alzheimer's disease, who meets the level of care requirements under sub. (6r) (b) 4. and who wants to be assessed and to receive long-term community support services.

(i) In instances in which an individual receives direct funding for long-term community support services under par. (b) , serve directly as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for that individual for the purposes of performing the responsibilities and protecting the interests of the individual under the unemployment insurance law. The county department or aging unit may elect to act as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for an individual who is provided long-term support services under s. 46.275 , 46.277 , 46.278 , 46.2785 , 46.495 , 51.42 , or 51.437 . The fiscal agent under this paragraph is responsible for remitting any federal unemployment compensation taxes or state unemployment insurance contributions owed by the individual, including any interest and penalties which are owed by the individual; for serving as the representative of the individual in any investigation, meeting, hearing, or appeal involving ch. 108 or the federal Unemployment Tax Act, 26 USC 3301 to 3311 , in which the individual is a party; and for receiving, reviewing, completing, and returning all forms, reports, and other documents required under ch. 108 or the federal Unemployment Tax Act on behalf of the individual. An individual may make an informed, knowing, and voluntary election to waive the right to a fiscal agent under this paragraph. The waiver may be as to all or any portion of the fiscal agent's responsibilities. The waiver may be rescinded in whole or in part at any time.

(j) Within the time period specified by the department, offer counseling, that is specified by the department, concerning public and private benefit programs to prospective residents of community-based residential facilities who are referred to the county department or aging unit under s. 50.035 (4n) .

(5m)   Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for that person.

(6)   Assessments.

(a)

1. Within the limits of state and federal funds allocated under sub. (7) and within the limits of fees collected, an assessment shall be conducted for any person identified in sub. (5) (e) or who is seeking admission to or is about to be admitted to a nursing home. A fee may be charged, unless prohibited, for the assessment.

1m. Each assessment shall determine the person's functional abilities, disabilities and need for medical and social long-term community support services. Each assessment shall include an investigation of long-term community support services that could serve as alternatives to institutional care in a nursing home. The assessment shall include an explanation of the potential community alternatives to the person being assessed and the person's family or guardian.

2. Subdivision 1. does not apply to:

a. Any person or facility that is excluded because of gradual implementation of the program under sub. (3) (c) .

b. Emergency admissions, as determined by a physician, but shall be applied within 10 days of admission.

c. Private pay patients seeking admission to or about to be admitted to a facility under subd. 1. who are informed about the program but waive the assessment, unless the patient will be eligible for medical assistance within 6 months of assessment.

cm. Persons under subd. 1. seeking admission to or about to be admitted to a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 who are informed about the program but waive the assessment.

d. Any person who is readmitted to a nursing home from a hospital within 6 months after being assessed.

e. Current residents of a nursing home who are eligible for an assessment under sub. (5) (e) and subd. 3. , but who waive the assessment.

f. A person who enters a nursing home for recuperative care.

g. A person who enters a nursing home for respite care.

h. A person who is admitted to a nursing home from another nursing home, unless the person requests an assessment and funds allocated for assessments under sub. (7) (am) are available to the county.

3. In each participating county, except in counties in which the department has contracted with an entity under s. 46.284 (2) , assessments shall be conducted for those persons and in accordance with the procedures described in the county's community options plan. The county may elect to establish assessment priorities for persons in target groups identified by the county in its plan regarding gradual implementation. If a person who is already admitted to a nursing home requests an assessment and if funds allocated for assessments under sub. (7) (am) are available, the county shall conduct the assessment.

(b) Within the limits of state and federal funds allocated under sub. (7) and within the limits of fees collected unless prohibited, a community services case plan shall be developed for any person with chronic disabilities:

1. Who is assessed under par. (a) ; and

2. For whom noninstitutional community services are feasible, financially viable and preferred by the person or the person's guardian. In this subdivision, noninstitutional community services are financially viable if they can be financed by state or federal funds allocated under sub. (7) .

(c) The amount of any fee charged for conduct of an assessment under par. (a) or for development of a case plan under par. (b) shall be in accordance with a sliding scale formula established by the department by rule under sub. (12) (c) . A fee may not be charged if prohibited under 42 USC 1396 to 1396v or under regulations under 42 USC 1396 to 1396v .

(d) If the county, through an assessment, determines that a community arrangement is not feasible, the county department or aging unit administering the program shall explain the reasons to the person and his or her family or guardian. The county department or aging unit administering the program shall maintain records sufficient to provide the county long-term support planning committee and the department with a periodic review of the reasons community arrangements were not feasible in order to assist future program planning.

(e) The department shall encourage counties to use public health nurses who meet the requirements of s. 250.06 (1) to conduct assessments under this subsection.

(6d)   Care management requirements.

(a) The department, after consulting with representatives of counties, hospitals, and individuals who receive services under this section, shall do all of the following:

1. Establish minimum requirements for the provision of care management services, as defined by the department, including standards for care, times for performance of duties, and size of caseloads.

2. Specify a reasonable schedule for phasing in the requirements established under subd. 1.

3. Provide technical consultation and assistance to the administrator of the program, as designated under sub. (3) (b) , with respect to the requirements established under subd. 1.

(b) The department need not promulgate as rules under ch. 227 the requirements under par. (a) 1. or the schedule under par. (a) 2.

(6g)   Fiscal responsibility. Except as provided in s. 51.40 , and within the limitations under sub. (7) (b) , the fiscal responsibility of a county for an assessment, unless the assessment is performed by an entity under a contract as specified under s. 46.284 (2) , case plan, or services provided to a person under this section is as follows:

(a) For a person seeking admission to or about to be admitted to a nursing home, the county in which the person has residence is the county of fiscal responsibility.

(b) For a person residing in a nursing home, except a state-operated long-term care facility, the county in which the nursing home is located is the county of fiscal responsibility.

(c) For a person living in a nursing home, except a state-operated long-term care facility, whose legal residence is established in another county, the county in which the legal residence is established is the county of fiscal responsibility.

(d) For a person residing in a state-operated long-term care facility, or for a person protectively placed under ch. 55 , the county in which the person has residence before he or she enters the state-operated long-term care facility or is protectively placed is the county of fiscal responsibility.

(6r)   Eligibility. No county may use funds received under sub. (7) (b) to pay for long-term community support services provided to any of the following:

(a) A person who is initially eligible for services under sub. (7) (b) , for whom home and community-based services are available under sub. (11) or s. 46.275 , 46.277 , 46.278 , or 46.2785 that require less total expenditure of state funds than do comparable services under sub. (7) (b) and who is eligible for and offered the home and community-based services under sub. (11) or s. 46.275 , 46.277 , 46.278 , or 46.2785 , but who declines the offer, except that a county may use funds received under sub. (7) (b) to pay for long-term community support services for the person for a period of up to 90 days during which an application for services under sub. (11) or s. 46.275 , 46.277 , 46.278 , or 46.2785 for the person is processed.

(b) A person who initially receives services under this section after December 31, 1985, unless one of the following applies:

1. The person meets the level of care requirements under s. 49.45 (6m) (i) for reimbursement of nursing home care under the medical assistance program.

1m. The person meets the requirements under any of the following for receipt of care in an institution for mental diseases:

a. A person who resided in the facility on the date of the finding that a skilled nursing facility or intermediate care facility that provides care to Medical Assistance recipients to be [is] an institution for mental diseases whose care in the facility is disallowed for federal financial participation under Medical Assistance.

b. A person who is aged 21 to 64, who has a primary diagnosis of mental illness, who would meet the level of care requirements for Medical Assistance reimbursement in a skilled nursing facility or intermediate care facility but for a finding that the facility is an institution for mental diseases, and for whom services would be provided in place of a person specified in subd. 1m. a. who discontinues services.

2. The person has serious and persistent mental illness, as defined under s. 51.01 (14t) , affecting mental health to the extent that long-term or repeated hospitalization is likely unless the person receives long-term community support services.

3. The person receives medical assistance, resides in a nursing home immediately prior to receiving services under this section and is identified through the inspection of patient care under 42 USC 1396a (a) (31) as a person for whom community care is appropriate.

4. The person has been diagnosed by a physician as having Alzheimer's disease and requires a level of care equivalent to either of the following:

a. Noninstitutional personal care, including personal assistance, supervision and protection, and periodic medical services and consultation with a registered nurse, or periodic observation and consultation for physical, emotional, social or restorative needs, but not regular nursing care.

b. Care, including social services and activity therapy, in a residential facility under the daily supervision of a licensed nurse with consultation from a registered nurse at least 4 hours per week.

(c) A person who resides or intends to reside in a community-based residential facility and who is initially applying for long-term community support services, if the projected cost of services for the person, plus the cost of services for existing participants, would cause the county to exceed the limitation under sub. (3) (f) , unless the department grants an exception to the requirement under this paragraph, under the conditions specified by rule, to avoid hardship to the person.

(e) A person who has not resided in this state for at least 180 consecutive days before applying for or receiving long-term community support services that are funded under sub. (7) (b) .

(f) A person who has attained the age of 18 but has not attained the age of 65 unless that person is engaged in gainful employment or participating in a program that is certified by the department to provide health and employment services that are aimed at helping the individual achieve employment goals. The department may waive this paragraph for any individual for whom its application would cause undue hardship.

(6u)   Financial eligibility and cost-sharing requirements.

(a) In this subsection, “assets" has the meaning given in s. 49.453 (1) (a) .

(b) The county department or aging unit selected to administer the program shall require all persons applying for long-term community support services that are funded under sub. (7) or (11) and, annually, all persons receiving the services to provide the following information:

1. For persons applying for or receiving services under sub. (7) , a declaration of assets, on a form prescribed by the department. The declaration shall include any assets that the person applying for or receiving the services, or his or her spouse, has, after August 12, 1993, transferred to another for less than fair market value at any time within the 36-month period, or with respect to payments from a trust or portions of a trust that would be treated as assets transferred by an individual under s. 49.454 (2) (c) or (3) (b) , within the 60-month period, immediately before the date of the declaration.

2. For persons applying for or receiving services under sub. (11) , a declaration of income, on a form prescribed by the department.

(c) From the information obtained under par. (b) , the county department or aging unit shall:

1. Determine the financial eligibility of the applicant or recipient of services to receive assistance for long-term community support services under the program. A person is financially eligible under this subdivision if he or she is one of the following:

a. Eligible for medical assistance under s. 49.46 , 49.468 , 49.47 , or 49.471 (4) (a) .

b. A person whom the county department or aging unit finds is likely to become medically indigent within 6 months by spending excess assets for medical or remedial care.

2. For a person who is determined to be financially eligible under subd. 1. calculate, by use of the uniform fee system under s. 46.03 (18) , the amount of cost sharing required for receipt of long-term community support services provided under sub. (5) (b) . The county department or aging unit shall require payment by the person of 100 percent of the amount calculated under this subdivision, unless the person is a recipient of medical assistance under s. 49.472 . If the person is a recipient of medical assistance under s. 49.472 , the county department or aging unit may not require any payment from the person under this subdivision.

3. Bill persons not determined under subd. 1. to be financially eligible for the full cost of long-term community support services received.

4. Use funds received under subds. 2. and 3. to pay for long-term community support services for persons who are eligible under sub. (6) (b) .

(d) In determining financial eligibility under par. (c) 1. and in calculating the amount under par. (c) 2. , the county department or aging unit shall include as the assets for any person, except those persons who are eligible for medical assistance under s. 49.46 , 49.468 , 49.47 , or 49.471 (4) (a) , any portion of assets that the person or the person's spouse has, after August 12, 1993, transferred to another as specified in par. (b) , unless one of the following conditions applies:

1. The transferred asset has no current value.

2. The county department or aging unit determines that undue hardship would result to the person or to his or her family from a denial of financial eligibility or from including all or a portion of a transferred asset in the calculation of the amount of cost sharing required.

(7)   Funding.

(am) From the appropriation under s. 20.435 (4) (bd) , the department shall allocate funds to each county or private nonprofit agency with which the department contracts to pay assessment and case plan costs under sub. (6) not otherwise paid by fee or under s. 49.45 or 49.78 (2) . The department shall reimburse multicounty consortia for the cost of assessing persons eligible for medical assistance under s. 49.46 , 49.468 , 49.47 , or 49.471 (4) (a) as part of the administrative services of medical assistance, payable under s. 49.45 (3) (a) . Counties may use unspent funds allocated under this paragraph to pay the cost of long-term community support services and for a risk reserve under par. (fr) .

(b) From the appropriations under s. 20.435 (4) (bd) and (im) , the department shall allocate funds to each county to pay the cost of providing long-term community support services under sub. (5) (b) not otherwise paid under s. 49.45 to persons eligible for medical assistance under s. 49.46 , 49.47 , or 49.471 (4) (a) or to persons whom the county department or aging unit administering the program finds likely to become medically indigent within 6 months by spending excess income or assets for medical or remedial care. The average per person reimbursement under this paragraph may not exceed the state share of the average per person payment rate the department expects under s. 49.45 (6m) . The county department or aging unit administering the program may spend funds received under this paragraph only in accordance with the case plan and service contract created for each person receiving long-term community support services. Counties may use unspent funds allocated under this paragraph from the appropriation under s. 20.435 (4) (bd) for a risk reserve under par. (fr) .

(c)

2. Receipt of funds under this section is subject to s. 46.495 (2) .

3. The department may not release funds under this section before approving the county's community options plan.

(cg) No county may use funds received under par. (b) to pay for long-term community support services provided any person who resides in a nursing home, unless the department waives this restriction on use of funds and the services are provided in accordance with a discharge plan.

(cj) No county may use funds received under par. (b) to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under par. (cm) , one of the following applies:

1. The services are provided to the person in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable independent entrance and exit and individual separate kitchen, bathroom, sleeping and living areas.

2. The person suffers from Alzheimer's disease or related dementia and the services are provided to the person in a community-based residential facility that has a dementia care program.

3. The services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:

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.

c. The county department or aging unit determines that the community-based residential facility is the person's preferred place of residence or is the setting preferred by the person's guardian.

d. The county department or aging unit determines that the community-based residential facility provides a quality environment and quality care services.

e. The county department or aging unit determines that placement in the community-based residential facility is cost-effective compared to other options, including home care and nursing home care.

5. The services are provided to the person in an adult family home, as defined in s. 50.01 (1) .

(ck)

1. Subject to the approval of the department, a county may establish and implement more restrictive conditions than those imposed under par. (cj) on the use of funds received under par. (b) for the provision of services to a person in a community-based residential facility. A county that establishes more restrictive conditions under this subdivision shall include the conditions in its community options plan under sub. (3) (cm) .

2. If the department determines that a county has engaged in a pattern of inappropriate use of funds received under par. (b) , the department may revoke its approval of the county's conditions established under subd. 1. , if any, and may prohibit the county from using funds received under par. (b) to provide services under par. (cj) 3.

(cm)

1. Beginning on January 1, 1996, no county, private nonprofit agency or aging unit may use funds received under par. (b) to provide services in any community-based residential facility that has more than 20 beds, unless one of the following applies:

a. The department approves the provision of services in a community-based residential facility that is licensed on July 29, 1995, and that meets standards established under subd. 2.

b. The department approves the provision of services in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable entrance and exit and individual separate kitchen, bathroom, sleeping and living areas, to individuals who are provided services under sub. (5) (b) and are physically disabled or are at least 65 years of age.

c. The department approves the provision of services in a community-based residential facility that is initially licensed after July 29, 1995, that is licensed for more than 20 beds and that meets standards established under subd. 2.

2. By January 1, 1996, the department shall establish standards for approvals made under subd. 1. a. , including whether the proposed use of funds for residents at the community-based residential facility in question adequately provides for all of the following:

a. Sufficient responsiveness to individual resident needs.

b. Maintenance of approved levels of quality of care.

c. Cost effectiveness, in comparison with other feasible funding uses.

d. Sufficient consideration of care for facility residents with dementia or related conditions.

3. The department need not promulgate as rules under ch. 227 the standards required to be established under subd. 2.

4. This paragraph does not apply to individuals who are receiving services under this section that are funded under par. (b) and who are residing in community-based residential facilities with more than 8 beds on January 1, 1996.

(d) The department may release funds to counties acting jointly, if the counties sign a contract approved by the secretary that explains the plans for joint sponsorship.

(e) No county may use funds received under this section to purchase land or construct buildings.

(f) If the department determines that a county demonstrates a pattern of failure to serve clients whose cost of care significantly exceeds the average cost of care for long-term community support services provided under this section, the department may require that county to reserve a portion of funds allocated under this subsection for provision of service to those clients.

(fm) The department shall, at the request of a county, carry forward up to 5 percent of the amount allocated under this subsection to the county for a calendar year if up to 5 percent of the amount so allocated has not been spent or encumbered by the county by December 31 of that year, for use by the county in the following calendar year, except that the amount carried forward shall be reduced by the amount of funds that the county has notified the department that the county wishes to place in a risk reserve under par. (fr) . The department may transfer funds within s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph does not affect a county's base allocation under this subsection and shall lapse to the general fund unless expended within the calendar year to which the funds are carried forward. A county may not expend funds carried forward under this paragraph for administrative or staff costs, except administrative or staff costs that are associated with implementation of the waiver under sub. (11) and approved by the department.

(fr)

1. Notwithstanding s. 46.036 (3) and (5m) , a county may place in a risk reserve funds that are allocated under par. (am) or (b) or sub. (11) (c) 3. and are not expended or encumbered for services under this subsection or sub. (11) . The county shall notify the department of this decision and of the amount to be placed in the risk reserve. The county shall maintain the risk reserve in an interest-bearing escrow account with a financial institution, as defined in s. 69.30 (1) (b) , if the department has approved the terms of the escrow. All interest from the principal shall be reinvested in the escrow account.

2. The annual amount of a county's expenditure for a risk reserve, as specified in subd. 1. , may not exceed 10 percent of the county's most recent allocation under pars. (am) and (b) and sub. (11) (c) 3. or $750,000, whichever is less. The total amount of the risk reserve, including interest, may not exceed 15 percent of the county's most recent allocation under this subsection.

3. A county may expend funds maintained in a risk reserve, as specified in subd. 1. , for any of the following purposes:

a. To defray costs of long-term community support services under this section.

b. To meet requirements under any contract that the county has with the department to operate a care management organization under s. 46.284 .

c. If approved by a resolution of the county board of supervisors, to transfer funds to a long-term care district.

d. If approved by the department, for administrative or staff costs under this section.

4. A county that maintains a risk reserve, as specified in subd. 1. , shall annually, on a form prescribed by the department, submit to the department a record of the status of the risk reserve, including revenues and disbursements.

(g) The department may carry forward to the next state fiscal year funds allocated under this subsection and not encumbered by counties by December 31 or carried forward under par. (fm) . The department may transfer moneys within s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph shall not affect a county's base allocation for the program. The department may allocate these transferred moneys during the next fiscal year to counties for planning and implementation of resource centers under s. 46.283 or care management organizations under s. 46.284 and for the improvement or expansion of long-term community support services for clients whose cost of care significantly exceeds the average cost of care provided under this section, including any of the following:

1. Specialized training for providers of services under this section.

2. Start-up costs for developing needed services.

3. Home modifications.

4. Purchase of medical equipment or other specially adapted equipment.

(7g)   Recovery of costs of care .

(a) In this subsection:

1. “Client" means a person who receives or received long-term community support services that are funded under sub. (7) .

1m. “Decedent" means a deceased client or a deceased nonclient surviving spouse, whichever is applicable.

2. “Disabled" has the meaning given in s. 49.468 (1) (a) 1.

3. “Home" means property in which a person has an ownership interest consisting of the person's dwelling and the land used and operated in connection with the dwelling.

4. “Nonclient surviving spouse" means any person who was married to a client while the client was receiving services for which the cost may be recovered under par. (c) 1. and who survived the client.

5. “Property of a decedent" means all real and personal property to which the client held any legal title or in which the client had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.

(c)

1. Except as provided in subd. 4. , the department shall file a claim against the estate of a client, and against the estate of a nonclient surviving spouse, for the amount of long-term community support services funded under sub. (7) paid on behalf of the client after the client attained 55 years of age, unless already recovered by the department under this subsection.

2. The affidavit of a person designated by the secretary to administer this paragraph is evidence of the amount of the claim.

2m.

a. Property that is subject to the department's claim under subd. 1. in the estate of a client or in the estate of a nonclient surviving spouse is all property of a decedent that is included in the estate.

b. There is a presumption, consistent with s. 766.31 , which may be rebutted, that all property in the estate of the nonclient surviving spouse was marital property held with the client and that 100 percent of the property in the estate of the nonclient surviving spouse is subject to the department's claim under subd. 1.

3. The court shall reduce the amount of a claim under subd. 1. by up to the amount specified in s. 861.33 (2) if necessary to allow the decedent's heirs or the beneficiaries of the decedent's will to retain the following personal property:

a. The decedent's wearing apparel and jewelry held for personal use.

b. Household furniture, furnishings and appliances.

c. Other tangible personal property not used in trade, agriculture or other business, not to exceed in value the amount specified in s. 861.33 (1) (a) 4.

4. A claim under subd. 1. is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.

5.

a. If the department's claim is not allowable because of subd. 4. and the estate includes an interest in real property, including a home, the court exercising probate jurisdiction shall, in the final judgment or summary findings and order, assign the interest in the real property subject to a lien in favor of the department for the amount described in subd. 1. The personal representative or petitioner for summary settlement or summary assignment of the estate shall record the final judgment as provided in s. 863.29 , 867.01 (3) (h) , or 867.02 (2) (h) .

b. If the department's claim is not allowable because of subd. 4. , the estate includes an interest in real property, including a home, and the personal representative closes the estate by sworn statement under s. 865.16 , the personal representative shall stipulate in the statement that the real property is assigned subject to a lien in favor of the department for the amount described in subd. 1. The personal representative shall record the statement in the same manner as described in s. 863.29 , as if the statement were a final judgment.

6. The department may not enforce a lien under subd. 5. as long as any of the following survive the decedent:

a. A spouse.

b. A child who is under age 21 or disabled.

6m. All of the following apply to a lien under subd. 5. that the department may not enforce because of subd. 6. :

a. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.

b. The department shall release the lien in the circumstances described in s. 49.849 (4) (c) 2.

7. The department may enforce a lien under subd. 5. by foreclosure in the same manner as a mortgage on real property.

(d) The department may require the county department or aging unit selected to administer the program in each county to gather and provide the department with information needed to recover payment of long-term community support services under this subsection. The department shall pay to the county department or aging unit an amount equal to 5 percent of the recovery collected by the department relating to a beneficiary for whom the county department or aging unit made the last determination of eligibility for funding under sub. (7) . A county department or aging unit may use funds received under this paragraph only to pay costs incurred under this paragraph and shall remit the remainder, if any, to the department for deposit in the appropriation account under s. 20.435 (4) (im) . The department may withhold payments under this paragraph for failure to comply with the department's requirements under this paragraph. The department shall treat payments made under this paragraph as costs of administration of the program.

(e) From the appropriation under s. 20.435 (4) (im) , the department shall pay the amount of the payments under par. (d) and shall spend the remainder of the funds recovered under this subsection for long-term community support services funded under sub. (7) (b) .

(f)

1. The department may recover amounts under this subsection for the provision of long-term community support services paid on and after January 1, 1996.

2. The department may file a claim under par. (c) only with respect to a client who dies after February 15, 1996.

(g) The department shall promulgate rules establishing standards for determining whether the application of this subsection would work an undue hardship in individual cases. If the department determines that the application of this subsection would work an undue hardship in a particular case, the department shall waive application of this subsection in that case.

(h) The department may contract with or employ an attorney to probate estates to recover under this subsection the costs of care.

(7m)   Right to hearing. A person who is denied eligibility for services or whose services are reduced or terminated under this section may request a hearing from the department under s. 227.44 , except that lack of adequate funding or a denial under sub. (6r) (a) may not serve as the basis for a request under this subsection.

(8)   County participation. Every county shall participate in and implement the program.

(9)   Pilot project allocating the cost of nursing home utilization increases to counties.

(a) The department may select up to 5 counties that volunteer to participate in a pilot project under which they will receive certain funds allocated for long-term care. The department shall allocate a level of funds to these counties equal to the amount that would otherwise be paid under s. 20.435 (4) (b) , (gm) , or (w) to nursing homes for providing care because of increased utilization of nursing home services, as estimated by the department. In estimating these levels, the department shall exclude any increased utilization of services provided by state centers for the developmentally disabled. The department shall calculate these amounts on a calendar year basis under sub. (10) .

(b) The department may only select counties to participate in this pilot project and receive these funds that have been part of the long-term support community options program since January 1, 1983. County participation in this pilot project shall be for periods beginning either January 1, 1984, or January 1, 1985.

(c) All long-term community support services provided under this pilot project in lieu of nursing home care shall be consistent with those services described in the participating county's community options plan under sub. (4) (c) 1. and provided under sub. (5) (b) . Unless the department has contracted under s. 46.284 (2) with an entity other than the county department, each county participating in the pilot project shall assess persons under sub. (6) .

(10)   Funding the pilot project.

(a)

1. The department shall determine for each county participating in the pilot project under sub. (9) a funding level of state medical assistance expenditures to be received by the county. This level shall equal the amount that the department determines would otherwise be paid under s. 20.435 (4) (b) , (gm) , or (w) because of increased utilization of nursing home services, as estimated by the department.

2. The department shall transfer or credit to the participating county the amount calculated under subd. 1. for 1984 or for the first 6 months of 1985, depending on the date the county begins participating in the pilot project. The county shall use these funds to provide long-term care to medical assistance recipients covered by its community options plan, either in the form of nursing home care financed under par. (b) or in the form of long-term community support services. The county may use extra funds available under this paragraph after it provides this long-term care for other long-term community support services under its community options plan.

(b) Each county participating in the pilot project is liable for the entire nonfederal share of medical assistance costs related to increased utilization of nursing homes that are located in the county.

(c) The department's method of determining each county's base level of funding, the transfer or credit of funds and the department's specification of county financial liability under the pilot project are subject to the approval of the joint committee on finance.

(11)   Medical assistance waiver.

(am) The department shall request a waiver from the secretary of the federal department of health and human services, under 42 USC 1396n (c), authorizing the department to provide as part of the medical assistance program home and community-based services for persons who are eligible for long-term support community options program services under sub. (5) (b) .

(b) The department shall include all assurances required under 42 USC 1396n (c) in the implementation of the waiver.

(c) The following conditions apply under the waiver:

1. At the end of the 3-year period during which the waiver remains in effect the department may request a 3-year extension of the waiver.

2. The department shall annually submit to the secretary of the federal department of health and human services information showing the effect of the program on the type and amount of medical assistance provided and on the health and welfare of program participants.

3. Medical assistance reimbursement for services a county, a private nonprofit agency or an aging unit with which the department contracts provides under this subsection shall be made from the appropriations under s. 20.435 (4) (bd) and (o) and (7) (b) .

4. The department may, from the appropriation under s. 20.435 (4) (o) , provide reimbursement for services provided under this subsection by counties that are in excess of the current average annual per person rate, as established by the department, and are less than or equal to the average amount approved in the waiver received under par. (am) .

5. The department may contract for services under this subsection with a county, a private nonprofit agency or, if a county board of supervisors by resolution so requests the department, an aging unit.

5m. No county may use funds received under this subsection to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under subds. 6. , 7. and 8. , one of the following applies:

a. The services are provided to the person in a community-based residential facility that entirely consists of independent apartments, each of which has an individual lockable independent entrance and exit and individual separate kitchen, bathroom, sleeping and living areas.

b. The person suffers from Alzheimer's disease or related dementia and the services are provided to the person in a community-based residential facility that has a dementia care program.

c. The services are provided to the person in a residential care apartment complex, as defined in s. 50.01 (6d) .

d. The services are provided to the individual in an adult family home, as defined in s. 50.01 (1) .

e. Subdivision 5n. applies.

5n. A county may also use funds received under this subsection, subject to the limitations under subds. 6. , 7. and 8. , to provide services to a person who does not live in his or her own home or apartment if the services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:

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.

c. The county department or aging unit determines that the community-based residential facility is the person's preferred place of residence or is the setting preferred by the person's guardian.

d. The county department or aging unit determines that the community-based residential facility provides a quality environment and quality care services.

e. The county department or aging unit determines that placement in the community-based residential facility is cost-effective compared to other options, including home care and nursing home care.

5p.

a. Subject to the approval of the department, a county may establish and implement more restrictive conditions than those imposed under subd. 5m. on the use of funds received under sub. (7) (b) for the provision of services to a person in a community-based residential facility. A county that establishes more restrictive conditions under this subd. 5p. a. shall include the conditions in its community options plan under sub. (3) (cm) .

b. If the department determines that a county has engaged in a pattern of inappropriate use of funds received under sub. (7) (b) , the department may revoke its approval of the county's conditions established under subd. 5p. a. , if any, and may prohibit the county from using funds received under sub. (7) (b) to provide services under subd. 5n.

6.

a. No county, private nonprofit agency or aging unit may use funds received under this subsection to provide residential services in a group home, as defined in s. 48.02 (7) , that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.

b. No county, private nonprofit agency, or aging unit may use funds received under this subsection to provide residential services in a community-based residential facility, as defined in s. 50.01 (1g) , that has more than 20 beds, unless the requirements of sub. (7) (cm) 1. a. , b. , or c. are met.

7. A county may use funds received under this subsection to provide supportive, personal or nursing services, as defined in rules promulgated under s. 49.45 (2) (a) 23. , to a person who resides in a certified residential care apartment complex, as defined in s. 50.01 (6d) . Funding of the services may not exceed 85 percent of the statewide medical assistance daily cost of nursing home care, as determined by the department.

8. No county, private nonprofit agency or aging unit may use funds received under this subsection to provide services in any community-based residential facility unless the county, agency or aging unit uses as a service contract the approved model contract developed under sub. (2) (j) or a contract that includes all of the provisions of the approved model contract.

(d) Section 49.45 (37) applies to this subsection.

(11g)   Report. Beginning January 1, 1997, and every January 1 thereafter, the department shall submit a report to the joint committee on finance and to the appropriate standing committees under s. 13.172 (3) , summarizing the data collected for the state and for individual counties under the program in the calendar year ending immediately before the preceding calendar year.

(12)   Rules. The department shall promulgate rules establishing the following:

(a) Fiscal management procedures required to be implemented by counties in administering the program under this section, as follows:

1. A simple contract between the community options program client and the service provider for that client.

2. A method for documenting the amount of service provided to enable verification of the appropriateness of payment.

3. Guidelines for determining whether a potential community options program client is competent to receive community options program funds directly or if an action should be brought for a determination of competency and the appointment of a guardian.

4. Supervisory review of community options program client payment decisions.

(b) Standards to ensure that only a single payment is made by the department for an initial community options case plan conducted by a county.

(c) A sliding scale formula for a fee chargeable for conduct of an assessment under sub. (6) (a) or for development of a case plan under sub. (6) (b) that is based on the person's ability to pay, unless prohibited from payment under 42 USC 1396 to 1396v or under regulations under 42 USC 1396 to 1396v .

(13)   Program termination. Notwithstanding subs. (5) , (6) , (6g) , (6u) , (7) , (7m) , (8) , and (11) , after the date the family care benefit, as defined in s. 46.2805 (4) , is available to eligible residents of a county, the department may discontinue the program under this section in that county.

1981 c. 20 ; 1983 a. 27 ; 1983 a. 189 s. 329 (5) ; 1983 a. 192 , 239 ; 1985 a. 29 ss. 876s to 896am , 3200 (56) ; 1985 a. 120 , 176 ; 1987 a. 27 , 399 ; 1989 a. 31 , 77 , 336 , 359 ; 1991 a. 32 , 39 , 235 , 274 ; 1993 a. 16 , 27 , 437 ; 1995 a. 27 ; 1997 a. 13 , 27 , 39 , 79 , 237 ; 1999 a. 9 , 63 ; 2001 a. 16 , 103 ; 2003 a. 33 ; 2005 a. 22 , 25 , 264 , 386 , 387 ; 2007 a. 20 ss. 904 to 921 , 9121 (6) (a) ; 2007 a. 141 ; 2009 a. 2 ; 2011 a. 32 ; 2013 a. 20 , 92 ; 2013 a. 165 s. 114 ; 2015 a. 55 , 180 .

Note

The correct word is shown in brackets. Corrective legislation is pending. Microsoft Windows NT 6.1.7601 Service Pack 1 Cross-reference: See also ch. DHS 73 , Wis. adm. code. Microsoft Windows NT 6.1.7601 Service Pack 1 The county was found to be the employer, for worker's compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under sub. (11). County of Barron v. Labor and Industry Review Commission, 2010 WI App 149 , 330 Wis. 2d 203 , 792 N.W.2d 584 , 09-1845 . Microsoft Windows NT 6.1.7601 Service Pack 1