SS 070-24 Scope Statement

DEPARTMENT OF HEALTH SERVICES Office of Legal Counsel F-02315 (10/2021)

STATE OF WISCONSIN

STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES

CHAPTER:

DHS 31, 105, and 107

RELATING TO:

Crisis urgent care and observation facilities

RULE TYPE:

Permanent and emergency

SCOPE TYPE:

Original

FINDING OF EMERGENCY:

An emergency rule is necessary to protect the public peace, safety, and welfare. Wisconsin currently has a behavioral health crisis. The suicide rate among Wisconsin residents increased by 38% from 2000 to 2022 and the number of unique individuals receiving crisis services has increased 71% from 2013 to 2021. Yet 44% of Wisconsin adults do not have access to an adult crisis stabilization facility, 36% do not have access to 24/7 mobile crisis services, and 66% of county crisis programs report staffing shortages. Specific to emergency detentions, an analysis by the Department of Health Services’ Office of Policy Initiatives and Budget found that while overall emergency detentions decreased 21% from 2013 to 2021, the number of emergency detentions at Winnebago Mental Health Institute (WMHI) increased 133% over that same time. WMHI estimates that in 2023, 38% of their admissions were hospitalized for 72 hours or less. Based on a 2019 Wisconsin Department of Justice survey, the average officer time spent responding to a mental health incident—which, notably, includes transporting the individual to WMHI—is nine hours. This data suggests that there is a shortage of accessible, facility-based crisis services and WMHI is serving as a default placement in lieu of more effective and less restrictive options. Creating crisis urgent care and observation facilities through this administrative rule project will increase access to less restrictive crisis intervention services and promote the best practice of integrated crisis care to treat co-occurring mental health and substance use related needs. This critical component of crisis services is a proactive step to attempt to reduce unnecessary inpatient hospital admissions and decrease law enforcement time spent on crisis response. Providing persons experiencing a crisis prompt access the right care at the right time is essential in improving the overall health of the populace and reducing more restrictive, costly, and time-consuming interventions. If approved in accordance with Ch. 227, Stats., the proposed emergency rule will be replaced by a corresponding permanent rule, and the rulemaking process will be concurrent.

SUMMARY

1. Description of rule objective/s

In accordance with 2023 Wis. Act 249, the Wisconsin Department of Health Services (“the Department”) proposes to create an emergency and permanent rule for the certification and operation of crisis urgent care and observation facilities (CUCOFs). CUCOFs are intended to fill a gap in crisis services by offering persons in crisis a no-wrong door option to receive immediate crisis intervention services. A CUCOF is defined as a treatment facility that admits an individual to prevent, de-escalate, or treat the individual’s mental health or substance use disorder and includes the necessary structure and staff to support the individual’s needs relating to the mental health or substance use disorder. A CUCOF will be able to accept voluntary and involuntary admissions to minimize the involvement of law enforcement and medical emergency services, including wait times in hospital emergency rooms, and avoid unnecessary inpatient hospitalizations. Specific to the directives in s. 51.036, which was created by Act 249, the administrative rule regulating CUCFOs will include the following: — Certification requirements, including: exemptions, such as for hospitals licensed under Ch. 50; program requirements including those listed under s. 51.036 (2) (c) (1) to (10), Stats.; and certification and reporting requirements to the joint committee on finance as specified in s. 51.036 (2) (d) and (f), Stats. — Admissions requirements as outlined in s. 51.036 (3), Stats.; and — Rule provisions as outlined in 51.036 (4), including but not limited to policies for emergency detentions, facility security, number of beds, law enforcement, interfacility transfers and communications, staffing, and populations served. Section 49.45 (41) (d), Stats., created by Act 249, directs the Medical Assistance program to request a waiver or State Plan Amendment to reimburse the CUCFOs certified under s. 51.036. In accordance with ss. 49.45 (10) and 227.29 (4), Stats., s. 49.45 (41) (d) necessitates rulemaking by the Medicaid program.

2. Existing policies relevant to the rule

Crisis urgent care and observation facilities are a new type of facility created by Act 249. As such, there is currently no policy for these facilities. All Wisconsin counties are required to provide emergency mental health services to persons within the county in need of such services per S. 51.42 (1) (b), Stats. The state needs additional facilities to provide crisis services and to address gaps within the crisis system and, allowing for Medicaid enrollment and reimbursement for non-county-based crisis services would help ensure there are more providers. Chapters DHS 105 and 107, respectively, relate to provider certification and covered services under Medical Assistance (MA). Because CUCOFs are an entirely new type of facility, these MA rules to not reference any MA certification or covered service requirements for CUCOFs.

3. Policies proposed to be included in the rule

The proposed rules will effectuate Act 249, which created s. 51.036, Stats., by creating standards for certification and operation of CUCOFs. These facilities will fill a gap in the state’s system of crisis care by providing a place for voluntary and involuntary persons in crisis to receive immediate, crisis intervention services from professionals trained in responding to mental health and substance use crisis. Facilities subject to the proposed rule will be specifically designed for the provision of crisis services by meeting the following requirements: — Staffed 24 hours a day 7 days a week by a multi-disciplinary team, including via telehealth. — Providing an array of supports ranging from screening, assessments for physical health, mental health, and substance use, coordination of basic needs, medication management, therapeutic counseling, ongoing evaluation, discharge planning, follow-up, and transfer to other care providers when appropriate. — Having the capacity to provide for the safety of patients and staff and be able to arrange for a higher level of care when necessary. The proposed rule will include provisions on program certification and reporting requirements which will address operations, policy and procedure requirements, assessments, bed availability and length of stay provisions, minimum security requirements, treatment, staffing, and staff training. The Department will include statewide geographic considerations for certification to ensure geographic diversity and may formalize these considerations in the proposed rule. Facilities subject to the proposed rule can accept walk-in patients and those escorted by law enforcement officers, medical responders, and county crisis personnel. Operating under a ‘no wrong door’ principle, services may be provided on a voluntary and involuntary status under s. 51.22 (3), Stats. Conversion to voluntary status within the facility would be allowable. Finally, the proposed rule will include requirements for admission and pre-admission, including the admission, holding, and discharge requirements for involuntary patients. The Department will include provisions related to clear standards and criteria set forth for law enforcement and other persons authorized to transport patients on an emergency detention. Criteria will address circumstances under which an individual may be escorted to a CUCOF, and how to determine which facility they may be taken to. The establishment of policies and procedures related to facility determination will include interfacility transfers independent of law enforcement, communication of bed availability prior to arrival, identification of alternative facility options and coordination between like facilities, especially facilities established or operated with funding received under s. 165.12, Stats., and hub-and-spoke programs. The rule will include admission provisions related to population to be served and minimum age requirements. For facilities intending to accept both youth and adults, requirements for the separation of these populations and policies to address youth specific treatment and staff training will be required.

4. Analysis of policy alternative

There are no reasonable alternatives to the proposed rulemaking. Through Act 249, the Legislature directed the Department to promulgate rules for development of crisis urgent care and observations facilities.

5. Statutory authority for the rule

a. Explanation of authority to promulgate the proposed rule

The Department is authorized to promulgate the rule based upon explicit statutory language in s. 51.036, Stats.

b. Statute/s that authorize/s the promulgation of the proposed rule

Section 51.036, Stats., reads, in relevant part: 51.036 Crisis urgent care and observation facilities. (2) Certification required; exemption; grants. (a) The department shall establish a certification process for crisis urgent care and observation facilities and a grant program to award grants to develop and support crisis urgent care and observation facilities. No person may operate a crisis urgent care and observation facility without a certification from the department. The department may make announced and unannounced inspections and complaint investigations of crisis urgent care and observation facilities as it deems necessary, at reasonable times and in a reasonable manner. The department may limit the number of certifications it grants to operate crisis urgent care and observation facilities. The department shall, using the department’s division of the state into regions by county, include statewide geographic consideration in its evaluation of applications for certification under this section to ensure geographic diversity among the regions in the location of crisis urgent care and observation facilities certified under this section. . . . (c) Subject to par. (d), the department may grant a certification to a crisis urgent care and observation facility that specifies in an application the level of care the facility can provide to patients and demonstrates in the application its ability to do all of the following: 1. Accept referrals for crisis services for adults and, if applicable, for youth, including any of the following: a. Involuntary patients brought under s. 51.15. b. Voluntary patients for services arriving as walk−ins or brought by law enforcement, emergency medical responders or emergency medical services practitioners, or county crisis personnel.   2. Abstain from having a requirement for medical clearance before admission assessment.   3. Provide assessments for physical health, substance use disorder, and mental health.   4. Provide screening for suicide and violence risk.   5. Provide medication management and therapeutic counseling.   6. Provide coordination of services for basic needs.   7. Provide for the safety and security of both the staff and the patients. 8. Have adequate staffing 24 hours a day, 7 days a week, including through use of telehealth, as described under s. 49.45 (61), with a multidisciplinary team that includes, as needed, psychiatrists or psychiatric nurse practitioners, physician assistants, nurses, licensed clinicians capable of completing assessments, peers with lived experience, and other appropriate staff. 9. Allow for voluntary and involuntary treatment of individuals in crisis as a means to avoid unnecessary placement of those individuals in hospital inpatient beds and allow for an effective conversion to voluntary stabilization when warranted in the same setting. 10. Contribute, from at least one nonstate, federal, or 3rd−party revenue source, an amount, as determined by the department, in addition to any grant awarded by the department under this section. . . . subd. (d) and (e)? (3) Admissions. (a) A crisis urgent care and observation facility certified under this section may accept individuals for any of the following services: 1. Voluntary stabilization.   2. Observation and treatment, including for assessments for mental health or substance use disorder. 3. Screening for suicide and violence risk. 4. Medication management and therapeutic counseling. (b) A crisis urgent care and observation facility certified under this section shall accept an adult individual for emergency detention under s. 51.15 and may accept a youth for emergency detention under s. 51.15. If the facility does not have capacity to accept an adult individual for purposes of emergency detention or if the facility does not accept a youth for purposes of emergency detention, that individual shall be transported to another appropriate facility in accordance with rules established by the department under sub. (4). A county crisis assessment under s. 51.15 (2) (c) is required prior to admission to a crisis urgent care and observation facility for purposes of emergency detention, but the medical clearance requirement under s. 51.15 (2) (b) does not apply to crisis urgent care and observation facility admissions for purposes of emergency detention. (c) The department shall encourage each crisis urgent care and observation facility certified under this section to operate with the intent to admit individuals for no longer than 5 days, except in exceptional circumstances. (4) Rules. The department shall promulgate rules to implement this section, including all of the following: (a) Establishment of the grant program described under sub. (2), including procedures for administration and establishment of criteria for awarding grants. (b) Establishment of requirements for crisis urgent care and observation facilities to match a portion of any grant awarded by the department under this section, as set forth under sub. (2) (c) (10)., and for determining what types of contributions may count toward the matching requirement. The matching requirement established by the department under this paragraph may be fulfilled through in-kind contributions. (c) Requirements for admitting, holding, and discharging individuals for purposes of emergency detention. (d) Minimum securing requirements for crisis urgent care and observation facilities certified under this section. (e) Establishment of a target range for the number of beds in a crisis urgent care and observation facility certified under this section. (f) Establishment of policies and criteria to ensure that law enforcement and other persons authorized to transport or cause transportation of an individual for purposes of emergency detention have clear standards and procedures regarding all of the following: 1. The circumstances under which law enforcement and other persons may bring an individual to a crisis urgent care and observation facility under this section. 2. The determination as to which facility law enforcement and other persons authorized to transport or cause transportation of an individual for purposes of emergency detention may take an individual. (g) Establishment of policies relating to interfacility transfers initiated at a crisis urgent care and observation facility, including how such transfers should occur and who should be involved in such transfers. Barring exigent circumstances that necessitate law enforcement involvement, law enforcement may not transport an individual for purposes of an interfacility transfer from a crisis urgent care and observation facility. (h) Establishment of procedures to coordinate communication regarding bed availability in a crisis urgent care and observation facility before the arrival of a patient and establishment of a process for determining where to take an individual in need of crisis services if a crisis urgent care and observation facility does not have capacity or otherwise does not accept an individual. (i) Establishment of policies for coordination between crisis urgent care and observation facilities certified under this section and any facility established or operated with funding received under s. 165.12 from settlement proceeds from the opiate litigation, as defined in s. 165.12 (1), as well as policies to encourage awareness of and communication and coordination with other facilities that provide services similar to those provided by crisis urgent care and observation facilities. (j) Establishment of procedures to require a crisis urgent care and observation facility to coordinate continuity of care with, when appropriate, a hub-and-spoke health home pilot program for any patient treated at a crisis urgent care and observation facility for a period of 5 or fewer days. The department shall establish procedures for follow-up with other transition facilities in the event that a hub-and-spoke health home pilot program is appropriate but not available. (k) Establishment of policies and procedures for crisis urgent care and observation facilities that intend to accept both youths and adults, including requirements that youths be treated in a separate part of the facility from adults, policies to address youth-related treatment issues, including parental input, and staff training for youth-specific issues. (L) Establishment of appropriate staffing level requirements, including policies to ensure the availability of adequate in-person care and on-site care. (m) Establishment of requirements to define the population to be served at a given crisis urgent care and observation facility, including establishment of any minimum age requirements.

Statute/s or rule/s that will affect the proposed rule or be affected by it

— Section 51.15, Stats., relating to involuntary emergency detentions. — Section 51.42, Stats., relating to community mental health, developmental disabilities, alcoholism and drug abuse services. — Section 51.45, Stats., relating to prevention of alcoholism and drug dependence. — Chapter DHS 105, relating to Medicaid provider certification. — Chapter DHS 107, relating to Medicaid covered services.

Estimates of the amount of time that state employees will spend to develop the rule and other necessary resources

Department staff estimate devoting 2,000 hours promulgating the rule. Pursuant to s. 227.13, Stats., the Department’s Division of Care and Treatment Services will establish an advisory committee comprised of statewide partners who are knowledgeable about the crisis services system.

Description of all the entities that may be affected by the rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the rule — County emergency mental health and substance use services programs which serve individuals experiencing a mental health crisis or substance use crisis. — Individuals experiencing a mental health crisis. — Inpatient psychiatric facilities and hospitals. — Winnebago Mental Health Institute and Mendota Mental Health Institute. — Community-based behavioral health providers. — Locales and communities in which the facilities are located, emergency departments, medical responders, and law enforcement.

Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule

There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.

Anticipated economic impact, locally or statewide

The proposed rule may have a moderate economic impact if promulgated. This rule will create small business opportunities for treatment providers.

Agency contacts

Sarah Coyle 608-266-2715 [e-mail] Laurie Hintz 608-261-7654 [e-mail] Cheryl Jatczak-Glenn 608-267-7118 [e-mail] Joanette Robertson 608-266-0907 [e-mail] Brianne Zaborowske Phone: [phone] [e-mail]