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.
DHS 107.10(5)(b)
(b) The pharmacist shall offer to discuss with each MA recipient, the recipient's legal representative or the recipient's caregiver who presents the prescription, matters which, in the exercise of the pharmacist's professional judgment and consistent with state statutes and rules governing provisions of this information, the pharmacist deems significant, including the following:
DHS 107.10(5)(b)2.
2. The route, dosage form, dosage, route of administration, and duration of drug therapy;
DHS 107.10(5)(b)3.
3. Specific directions and precautions for preparation, administration and use by the patient;
DHS 107.10(5)(b)4.
4. Common severe side effects or adverse effects or interactions and therapeutic contraindications that may be encountered, including how to avoid them, and the action required if they occur;
DHS 107.10(5)(c)
(c) The pharmacist shall make a reasonable effort to obtain, record and maintain at least the following information regarding each MA recipient for whom the pharmacist dispenses drugs under the MA program:
DHS 107.10(5)(c)1.
1. The individual's name, address, telephone number, date of birth or age and gender;
DHS 107.10(5)(c)2.
2. The individual's history where significant, including any disease state or states, known allergies and drug reactions, and a comprehensive list of medications and relevant devices; and
DHS 107.10(5)(c)3.
3. The pharmacist's comments relevant to the individual's drug therapy.
DHS 107.10(5)(d)
(d) Nothing in this subsection shall be construed as requiring a pharmacist to provide consultation when an MA recipient, the recipient's legal representative or the recipient's caregiver refuses the consultation.
DHS 107.10 History
History: Cr.
Register, February, 1986, No. 362, eff. 3-1-86; am. (3) (h),
Register, February, 1988, No. 386, eff. 3-1-88; emerg. am. (2) (e) and (f), (4) (k), cr. (2) (g), (3) (j) and (k), (4) (L), eff. 4-27-91; r. and recr.
Register, December, 1991, No. 432, eff. 1-1-92, r. and recr. (2) (c), am. (2) (d) and (e), cr. (2) (f) and (g), (3) (L) and (4) (n) to (t),
Register, January, 1997, No. 493, eff. 2-1-97;
CR 03-033: am. (1), (2) (d), (3) (b) to (d), (h) (intro.), (i), (4) (L) and (5) (a), r. (2) (a), cr. (3) (h) 8.
Register December 2003 No. 576, eff. 1-1-04; correction in (1) made under s.
13.92 (4) (b)7., Stats.,
Register February 2014 No. 698;
2021 Wis. Act 125: am. (2) (c)
Register February 2022 No. 794, eff. 2-6-22.
