DHS 107.09(4)(o)1.1. Before a recipient is admitted to an ICF or before authorization for payment in the case of a resident who applies for MA, an interdisciplinary team of health professionals shall make a comprehensive medical and social evaluation and, where appropriate, a psychological evaluation of the applicant's or recipient's need for care in the ICF within 48 hours following admission unless the evaluation was performed not more than 15 days before admission.
DHS 107.09(4)(o)2.
2. In an institution for individuals with intellectual disabilities or persons with related conditions, the team shall also make a psychological evaluation of need for care. The psychological evaluation shall be made before admission or authorization of payment, but may not be made more than 3 months before admission.
DHS 107.09(4)(o)3.
3. Each evaluation shall include: diagnosis; summary of present medical, social and, where appropriate, developmental findings; medical and social family history; documentation of mental and physical status and functional capacity; prognosis; kinds of services needed; evaluation by an agency worker of the resources available in the home, family and community; and a recommendation concerning admission to the ICF or continued care in the ICF.
DHS 107.09(4)(o)4.
4. If the comprehensive evaluation recommends ICF services for an applicant or recipient whose needs could be met by alternate services that are not then available, the facility shall enter this fact in the recipient's record and shall begin to look for alternative services.
DHS 107.09(4)(p)
(p) MA agency review of need for admission to an SNF or ICF. Medical and other professional personnel of the agency or its designees shall evaluate each applicant's or recipient's need for admission to an SNF or ICF by reviewing and assessing the evaluations required under pars.
(n) and
(o).
DHS 107.09(4)(q)1.1. The level of care and services to be received by a recipient from the SNF or ICF shall be documented in the physician's plan of care by the attending physician and approved by the department. The physician's plan of care shall be submitted to the department whenever the recipient's condition changes.
DHS 107.09(4)(q)2.
2. A physician's plan of care shall be required at the time of application by a nursing home resident for MA benefits. If a physician's plan of care is not submitted to the department by the nursing home at the time that a resident applies for MA benefits, the department shall not certify the level of care of the recipient until the physician's plan of care has been received. Authorization shall be covered only for the period of 2 weeks prior to the date of submission of the physician's plan of care.
DHS 107.09(4)(q)3.
3. The physician's plan of care shall include diagnosis, symptoms, complaints and complications indicating the need for admission; a description of the functional level of the individual; objectives; any orders for medications, treatments, restorative and rehabilitative services, activities, therapies, social services or diet, or special procedures recommended for the health and safety of the patient; plans for continuing care, including review and modification to the plan of care; and plans for discharge.
DHS 107.09(4)(q)4.
4. The attending or staff physician and a physician assistant and other personnel involved in the recipient's care shall review the physician's plan of care at least every 60 days for SNF recipients and at least every 90 days for ICF recipients.
DHS 107.09(4)(r)
(r) Reports of evaluations and plans of care - ICF and SNF. A written report of each evaluation and the physician's plan of care shall be made part of the applicant's or recipient's record:
DHS 107.09(4)(r)2.
2. If the individual is already in the facility, immediately upon completion of the evaluation or plan.
DHS 107.09(4)(s)
(s) Recovery of costs of services. All medicare-certified SNF facilities shall recover all medicare-allowable costs of services provided to recipients entitled to medicare benefits prior to billing MA. Refusal to recover these costs may result in a fine of not less than $10 nor more than $100 a day, as determined by the department.
DHS 107.09(4)(t)
(t) Prospective payment system. Provisions regarding services and reimbursement contained in this subsection are subject to s.
49.45 (6m), Stats.
DHS 107.09(4)(u)
(u) Active treatment. All developmentally disabled residents of SNF or ICF certified facilities who require active treatment shall receive active treatment subject to the requirements of s.
DHS 132.695.
DHS 107.09(5)
(5) Non-covered services. The following services are not covered services:
DHS 107.09(5)(a)
(a) Services of private duty nurses when provided in a nursing home;
DHS 107.09(5)(b)
(b) For Christian Science sanatoria, custodial care and rest and study;
DHS 107.09(5)(c)
(c) Inpatient nursing care for ICF personal care and ICF residential care to residents who entered a nursing home after September 30, 1981; form
DHS 107.09(5)(d)
(d) ICF-level services provided to a developmentally disabled person admitted after September 15, 1986, to an ICF facility other than to a facility certified under s.
DHS 105.12 as an intermediate care facility for individuals with intellectual disabilities unless the provisions of s.
DHS 132.51 (2) (d) 1. have been waived for that person; and
DHS 107.09(5)(e)
(e) Inpatient services for residents between the ages of 21 and 64 when provided by an institution for mental disease, except that services may be provided to a 21 year old resident of an IMD if the person was a resident of the IMD immediately prior to turning 21 and continues to be a resident after turning 21.
DHS 107.09 Note
Note: For more information about non-covered services, see s.
DHS 107.03.
DHS 107.09 History
History: Cr.
Register, February, 1986, No. 362, eff. 3-1-86; renum. (1) to (4) to be (2) to (5) and am. (4) (g) 2. and (5) (6) and (c), cr. (1) (4) (u), (5) (d) and (e),
Register, February, 1988, No. 386, eff. 3-1-88; emerg. cr. (4) (v), eff. 8-1-88; cr. (4) (v),
Register, December, 1988, No. 396, eff. 1-1-89; correction in (4) (a) 1. intro. made under s. 13.93 (2m) (b) 7., Stats.,
Register, April, 1999, No. 520; corrections in (4) (v) (intro.) made under s. 13.93 (2m) (b) 7., Stats.,
Register, October, 2000, No. 538; corrections in (4) (g) 1., 2., (j) 1. g., (k), (n) 2., (u) and (5) (d) made under s. 13.92 (4) (b) 7., Stats.,
Register December 2008 No. 636;
2019 Wis. Act 1: am. (4) (o) 2., (5) (d)
Register May 2019 No. 761, eff. 6-1-19;
CR 20-039: r. (4) (v)
Register October 2021 No. 790, eff. 11-1-21;
CR 23-046: r. (4) (L) Register April 2024 No. 820, eff. 5-1-24.
DHS 107.10(1)(1)
Covered services. Drugs and drug products covered by MA include legend and non-legend drugs and supplies listed in the Wisconsin medicaid drug index which are prescribed by a physician licensed under s.
448.04, Stats., by a dentist licensed under s.
447.05, Stats., by a podiatrist licensed under s.
448.04, Stats., by an optometrist licensed under ch.
449, Stats., by an advanced practice nurse prescriber licensed under s.
441.16, Stats., or when a physician delegates the prescribing of drugs to a nurse practitioner or to a physician's assistant certified under s.
448.04, Stats., and the requirements under s.
N 6.03 for nurse practitioners and under s.
Med 8.07 for physician assistants are met.
DHS 107.10 Note
Note: The Wisconsin medicaid drug index is available from the Division of Health Care Access and Accountability, P.O. Box 309, Madison, WI 53701.
DHS 107.10 Note
Note: Chapter Med 8 has been repealed.
DHS 107.10(2)
(2) Services requiring prior authorization. The following drugs and supplies require prior authorization:
DHS 107.10(2)(c)
(c) Medically necessary, specially formulated nutritional supplements and replacement products, including enteral and parenteral products used for the treatment of severe health conditions such as pathologies of the gastrointestinal tract or metabolic disorders, as described in the MA provider handbooks and bulletins, but not including enteral nutrition products administered through a tube.
DHS 107.10(2)(d)
(d) Drugs the department has determined entail substantial cost or utilization problems for the MA program. These drugs shall be noted in the Wisconsin medicaid drug index;
DHS 107.10(2)(e)
(e) Any drug produced by a manufacturer who has not entered into a rebate agreement with the federal secretary of health and human services, as required by
42 USC 1396r-8, if the prescribing provider under sub.
(1) demonstrates to the department's satisfaction that no other drug sold by a manufacturer who complies with
42 USC 1396r-8 is medically appropriate and cost-effective in treating the recipient's condition;
DHS 107.10(2)(f)
(f) Drugs identified by the department that are sometimes used to enhance the prospects of fertility in males or females, when proposed to be used for treatment of a condition not related to fertility; and
DHS 107.10(2)(g)
(g) Drugs identified by the department that are sometimes used to treat impotence, when proposed to be used for the treatment of a condition not related to impotence.
DHS 107.10 Note
Note: For more information on prior authorization, see s.
DHS 107.02 (3).
DHS 107.10(3)(a)
(a) Dispensing of schedule III, IV and V drugs shall be limited to the original dispensing plus 5 refills, or 6 months from the date of the original prescription, whichever comes first.
DHS 107.10(3)(b)
(b) Dispensing of non-scheduled drugs shall be limited to the original dispensing plus 11 refills, or 12 months from the date of the original prescription, whichever comes first.
DHS 107.10(3)(c)
(c) Generically-written prescriptions for drugs listed in the federal food and drug administration approved drug products publication shall be filled with a generic drug included in that list. Prescription orders written for brand name drugs which have a lower cost commonly available generic drug equivalent shall be filled with the lower cost drug product equivalent, unless the prescribing provider under sub.
(1) writes “brand medically necessary" on the face of the prescription.
DHS 107.10(3)(d)
(d) Except as provided in par.
(e), legend drugs shall be dispensed in the full amounts prescribed, not to exceed a 34-day supply.
DHS 107.10(3)(e)
(e) The following drugs may be dispensed in amounts up to but not to exceed a 100-day supply, as prescribed by a physician:
DHS 107.10(3)(g)
(g) Provision of special dietary supplements used for tube feeding or oral feeding of nursing home recipients shall be included in the nursing home daily rate pursuant to s.
DHS 107.09 (2) (b).
DHS 107.10(3)(h)
(h) To be included as a covered service, a non-legend drug shall be used in the treatment of a diagnosable medical condition and be a rational part of an accepted medical treatment plan. The following general categories of non-legend drugs are covered:
DHS 107.10(3)(h)8.
8. Non-legend drugs not within one of the categories described under subds.
1. to
7. that previously had legend drug status and that the department has determined to be cost effective in treating the condition for which the drugs are prescribed.
DHS 107.10(3)(i)
(i) Any innovator multiple–source drug is a covered service only if the prescribing provider under sub.
(1) certifies by writing the phrase “brand medically necessary" on the prescription to the pharmacist that the innovator brand drug, rather than a generic drug, is medically necessary. The prescribing provider shall document in the patient's record the reason why the innovator brand drug is medically necessary. The innovators of multiple source drug are identified in the Wisconsin medicaid drug index.
DHS 107.10(3)(j)
(j) A drug produced by a manufacturer who does not meet the requirements of
42 USC 1396r-8 may be a covered service if the department determines that the drug is medically necessary and cost-effective in treating the condition for which it is prescribed.
DHS 107.10(3)(k)
(k) The department may determine whether or not a drug judged by the U.S. food and drug administration to be “less than effective"shall be reimbursed under the program based on the medical appropriateness and cost-effectiveness of the drug.
DHS 107.10(3)(L)
(L) Services, including drugs, directly related to non-surgical abortions shall comply with s.
20.927, Stats., may only be prescribed by a physician, and shall comply with MA policy and procedures as described in MA provider handbooks and bulletins.
DHS 107.10(4)
(4) Non-covered services. The department may create a list of drugs or drug categories to be excluded from coverage, known as the medicaid negative drug list. These non-covered drugs may include drugs determined “less than effective" by the U.S. food and drug administration, drugs not covered by
42 USC 1396r-8, drugs restricted under
42 USC 1396r-8 (d) (2) and experimental or other drugs which have no medically accepted indications. In addition, the following are not covered services:
DHS 107.10(4)(a)
(a) Claims of a pharmacy provider for reimbursement for drugs and medical supplies included in the daily rate for nursing home recipients;
DHS 107.10(4)(e)
(e) Cosmetics such as non-therapeutic skin lotions and sun screens;
DHS 107.10(4)(f)
(f) Common medicine chest items such as antiseptics and band-aids;
DHS 107.10(4)(g)
(g) Personal hygiene items such as tooth paste and cotton balls;
DHS 107.10(4)(h)
(h) “Patent" medicines such as drugs or other medical preparations that can be bought without a prescription;
DHS 107.10(4)(k)
(k) Drugs not listed in the medicaid index, including over-the-counter drugs not included in sub.
(3) (h) and legend drugs;
DHS 107.10(4)(L)
(L) Drugs included in the medicaid negative drug formulary maintained by the department; and
DHS 107.10(4)(n)
(n) Drugs provided for the treatment of males or females for infertility or to enhance the prospects of fertility;
DHS 107.10(4)(p)
(p) Drugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics;
DHS 107.10 Note
Note: In
Flack v. Wisconsin Dep't of Health Servs,
395 F. Supp. 3d 1001 (W.D. Wis. 2019), the United States District Court for the Western District of Wisconsin held that ss.
DHS 107.03 (23) and
(24) and
107.10 (4) (p) violated the Equal Protection Clause of the Fourteenth Amendment, s. 1557 of the Affordable Care Act, and the federal Medicaid Act. The court in
Flack permanently enjoined the department from enforcing those provisions.
DHS 107.10(4)(s)
(s) Infant formula, except when the product and recipient's health condition meet the criteria established by the department under sub.
(2) (c) to verify medical need; and
DHS 107.10(4)(t)
(t) Enteral nutritional products that do not meet the criteria established by the department under sub.
(2) (c) to verify medical need, when an alternative nutrition source is available, or that are solely for the convenience of the caregiver or the recipient.
DHS 107.10(5)
(5) Drug review, counseling and recordkeeping. In addition to complying with ch.
Phar 7, a pharmacist shall fulfill the requirements of
42 USC 1396r-8 (g) (2) (A) as follows:
DHS 107.10(5)(a)
(a) The pharmacist shall review the drug therapy before each prescription is filled or delivered to an MA recipient. The review shall include screening for potential drug therapy problems including therapeutic duplication, drug–disease contraindications, drug–drug interactions, including serious interactions with non-legend drugs, incorrect drug dosage or duration of drug treatment, drug–allergy interactions and clinical abuse or misuse.
