SS 129-20

CHAPTER:

DHS 107

RELATING TO:

Provider Certification and Covered Services

RULE TYPE:

Permanent

SCOPE TYPE:

Original

FINDINGS OF EMERGENCY:

Not applicable

SUMMARY

2019 Wis. Act 105 (“Act 105”), which took effect on March 1, 2020, establishes Medicaid reimbursement for certain third-party emergency detention transportations of Medical Assistance recipients, and further directs the department to establish criteria for third-party transporters that must be met in order to obtain reimbursement In accordance with s. 227.29 (4), the department has determined that Act 105 necessitates rulemaking.

Chapter DHS 107, relating to covered services.

The department of health services (“the department”) intends to promulgate administrative rules necessary to effectuate the purpose of Act 105, namely that the department establish criteria for Medicaid reimbursement to counties for third-party vendor emergency detention transportations of Medical Assistance recipients.

There are no reasonable alternatives to the proposed rulemaking. The Wisconsin Legislature has directed the department to establish criteria for Medicaid reimbursement to counties for third-party vendor emergency detention transportation. In order to ensure that the established criteria are enforceable, the department must promulgate administrative rules.

The department’s authority to promulgate the proposed rules is provided in ss. 49.45 (29x) (a) and 227.11 (2), Stats.

Section 49.45 (29x) (a), Stats., reads: Subject to par. (b), the department shall provide reimbursement as provided under s. 49.46 (2) (b) 3. to counties for transport of individuals who are recipients of medical assistance for purposes of emergency detention under s. 51.15 (2) as provided under s. 51.15 (2) (e). The department shall establish criteria that any 3rd−party vendor that is not a law enforcement agency or ambulance service provider must meet in order for the county to obtain reimbursement for transport provided by that 3rd−party vendor under the Medical Assistance program. Section 227.11 (2), Stats., reads: Rule−making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency: 1. A statutory or non-statutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule−making authority on the agency or augment the agency’s rule−making authority beyond the rule−making authority that is explicitly conferred on the agency by the legislature. 2. A statutory provision describing the agency’s general powers or duties does not confer rule−making authority on the agency or augment the agency’s rule−making authority beyond the rule− making authority that is explicitly conferred on the agency by the legislature. 3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision. (b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure. (c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule. (d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute’s effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets. (e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information.

Chapter DHS 107 relating to covered services.

The estimated time for state employees to develop the rule is 2,080 hours.

Members receiving Medical Assistance services. The department. County health departments. Vendors providing emergency detention transportation services.

42 C.F.R. p. 431.53 Assurance of transportation. A State plan must— (a) Specify that the Medicaid agency will ensure necessary transportation for beneficiaries to and from providers; and (b) Describe the methods that the agency will use to meet this requirement.

The proposed rule may have a moderate economic impact.

Laura Brauer Division of Medicaid Services [phone] [e-mail]