DepartmenT of Health Services Office of Legal Counsel | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT EMERGENCY RULES |
The Wisconsin Department of Health Services (“the department”) proposes an order to: create DHS 105.525 and 107.345, relating to child care coordination services.
FINDING OF EMERGENCY
Preservation of the public peace, health, safety, or welfare necessitates adoption of an emergency rule. The office of the inspector general (“OIG”) and the division of medicaid services (“DMS”) found evidence of fraud in the child care coordination ("CCC") benefit and determined that existing benefit requirements have allowed providers to enter the marketplace who are not offering appropriate services. Due to those findings, the Centers for Medicare and Medicaid Services issued a temporary moratorium restricting new enrollments in prenatal care coordination (“PNCC”) agencies, which also provide CCC services. Restricting enrollments through the moratorium gives the department time to mitigate the potential for fraud in provider enrollment. The moratorium is set to expire on December 6, 2024, without the possibility of further extension. New administrative rules are necessary to mitigate the risk of further fraud in the CCC benefit. Efforts are underway to revise the CCC and PNCC benefits via Statement of Scope SS 037-24, but it will not be possible to promulgate permanent rules for CCC under SS 037-24 before the federal moratorium expires. Emergency rules are also necessary to ensure eligible members begin receiving high-quality CCC services sooner than when permanent rules under SS 037-24 could take effect. CCC services are an important early intervention strategy to identify and support children at high risk of child abuse and neglect in Milwaukee County and the City of Racine. CCC services include care planning and care coordination for these high-risk children to promote positive parenting, improve health outcomes, and prevent abuse and neglect. Based on department enrollment records, prior to the temporary moratorium, these services were provided to an estimated 3,187 children annually. From March 1, 2024 to May 31, 2024, the number of members receiving services with paid claims was approximately 21, due to the enrollment moratorium and pre-payment integrity reviews conducted by OIG. It is expected that the number of individuals receiving the benefit will increase upon benefit redesign; however, it is not expected to reach pre-moratorium levels due to the estimated number of fraudulent claims submitted prior to the start of the moratorium. RULE SUMMARY
Statutes interpreted
Section 49.45 (2) (a) 1., 2., 11,, and 12., (3) (f) 2., and (44), Stats.
Section 49.46 (1) (a) lm., (j), and (2) (b) 12. and 12m., Stats.
Section 49.47 (4) (ag) 2., Stats.
Section 49.471 (6) (b), (7) (b) 1. and 2., Stats. Statutory authority
The department is authorized to promulgate the emergency rule based upon the following statutory sections ss. 49.45 (10), 49.471 (12), and 227.11 (2), Stats. Explanation of agency authority
The department’s authority to administer medical assistance (“MA”) is provided in s. 49.45, Stats. Section 49.45 (2) (a) s. 49.45, Stats., lists the department’s duties in administering the state MA program, including all of the following relevant obligations:
Exercising responsibility relating to fiscal matters and eligibility for benefits under ss. 49.46 to 49.471, Stats. Section 49.45 (2) (a) 1., Stats.
“[C]ooperat[ing] with federal authorities for the purpose of providing assistance and services under Title XIX to obtain the best financial reimbursement available to the state from federal funds.” Section 49.45 (2) (a) 2., Stats.
Establishing criteria for the certification of providers of medical assistance and promulgating rules to implement that authority. Section 49.45 (2) (a) 11, Stats.
Decertifying or restricting providers from participating in MA if, after providing appropriate due process, the provider has violated relevant laws and regulations, and promulgating rules to implement this authority. Section 49.45 (2) (a) 11. Subsection (3) of s. 49.45, Stats., relating to payment, requires that providers of MA maintain records as required by the department for verification of provider claims for reimbursement, and further authorizes the department to deny claims for reimbursement that cannot be verified, and to recover “the full value of any claim” if an audit determines that the actual provision of services cannot be verified or that the service was not covered. Section 49.45 (3) (f) 2., Stats. Subsection (10) of s. 49.45, Stats., further authorizes the department to “promulgate such rules as are consistent with its duties in administering medical assistance” as detailed in the above-cited provisions of s. 49.45, Stats. Section 49.46 (2). Stats., lists benefits for which “the department shall audit and pay allowable charges to certified providers for medical assistance on behalf of recipients.” Section 49.46 (2) (b) 12. and 12m. identify PNCC and CCC as MA reimbursable services. Sections 49.46 (1) (a) lm., 49.46(1) (j), Sections 49.46 (2) (b) 12m, and 49.471 (7) (b) 1-2., describe eligibility criteria for care coordination services for prenatal and postpartum women and children. Subsection (44) of s. 49.45, Stats., states that certain individuals certified to provide PNCC services who are located in Milwaukee County or the city of Racine may be certified to provide CCC services. Certified CCC providers in Milwaukee County may provide services to children under age 7. Certified CCC providers in the city of Racine may provide services to children under age 2. Section 49.471, Stats., includes provisions for BadgerCare Plus related to eligibility criteria. Subsection (12) of the statute authorizes the “department to promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.” Section 227.24 (1) (a), Stats., authorizes an agency to “promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.” Related statute or rule
The following federal statutes and rules directly relate to or address Prenatal Care Coordination (PNCC) and Child Care Coordination (CCC): 42 CFR § 440.169, 42 CFR § 441.18. Plain language analysis
In accordance with ss. 49.45 (2) (a) 11. and 12., and 49.46 (2) (b) 12. Stats., the department established certification criteria for PNCC providers in s. DHS 105.52, and identified covered PNCC services in s. DHS 107.34. Previously, certified PNCC providers in Milwaukee County and the City of Racine were automatically certified to provide CCC services, and rules did not specify which specific services were covered under the CCC benefit.
Due to substantiated concerns about fraud, waste, and abuse among providers of the CCC benefit, the department ceased certifying CCC providers in accordance with a federal moratorium restricting PNCC and CCC enrollments. Enrollments ceased on November 10, 2023.
In order to mitigate the risk of future fraud, waste, and abuse within future CCC provider enrollment and reimbursement for services, the department proposes to create rules to effectuate the intent of ss. 49.45 (44) and 49.46 (2) (b) (12m), Stats. — namely to establish CCC certification criteria and identify covered CCC services. The proposed rules apply in addition to PNCC certification criteria. Summary of, and comparison with, existing or proposed federal regulations
The Social Security Act, § 1915(g)(1), authorizes Medical Assistance program coverage of case management services. § 1915(g)(2) defines case management services as those assisting individuals eligible under the State plan in gaining access to needed medical, social, educational, and other services.
42 CFR § 440.169 and 42 CFR § 441.18 include requirements for covered case management services and providers.
42 CFR 440.210(a)(2) requires that state medical assistance programs provide, for the categorically needy, pregnancy-related services and services for other conditions that might complicate the pregnancy, including prenatal and postpartum care. 42 CFR § 435.170 extends the eligibility for pregnant women under the MA program. Comparison with rules in adjacent states
Illinois:
As of August 2023, the state has rules related to Family Case Management for comprehensive service coordination for pregnant women and infants until 12 months of age. Rules are outlined under Title 77 Illinois Administrative Code Part 630 (Maternal and Child Health Services), 325 ILCS 5 (Abused and Neglected Child Reporting Act), 405 ILCS 95 (Perinatal Mental Health Disorders Prevention and Treatment Act), and 410 ILCS 212 (Illinois Family Case Management Act). Iowa:
As of August 2023, the state has rules under chapter 441 Iowa Administrative Code Chapter 24 for targeted case management provider accreditation. Case Management services are defined under Iowa Administrative Code 441- 90. Michigan:
As of August 2023, there is no Administrative Code found regarding Michigan’s coverage of Maternal Infant Health Program, but it is found in their Medicaid Provider Manual that outlines their provision of the program which is similar to PNCC. Minnesota:
Pregnant women are eligible for services under MA under Minn. Stat. ss. 256B.055 subd. 6. and 256B.057 subd. 1. until 12 months postpartum. Minnesota does not appear to have a special program targeted to specific parts of the state like CCC, but “child welfare targeted case management services” are identified in Minn. Stat. s. 256B.094.
Summary of factual data and analytical methodologies
In accordance with s. 227.13, Stats., the department conducted informal consultation and gathered feedback from providers working with a variety of partner organizations. These included federally qualified health centers, county health organizations, and private case management providers, representing a mix of private and public providers. All feedback from the informal consultations was considered by the department and incorporated, as appropriate. Further, the department referenced current federal benefit coverage practice outlined in the Social Security Act under § 1915(g)(2). Analysis and supporting documents used to determine effect on small business
The most notable effect on small businesses will primarily relate to new administrative rule requirements for background checks for all staff, compliance with fit and qualified criteria for owners and principals, and the need for ongoing training and documentation. During informal consultations with the department, providers indicated that they already conduct background checks on staff and would therefore not expect a significant financial impact resulting from these requirements, but anticipate some limited administrative impact with respect to background check requirements for all staff, compliance with fit and qualified criteria, and the need for ongoing training and documentation. Furthermore, there is no change in the reimbursement amount paid to providers and there is no expected change in utilization as this benefit is simply going from fee-for-service ("FFS") responsibility to the responsibility of both FFS and MA health maintenance organizations. Therefore, there is no expected increase or decrease in Medicaid expenditures.
Effect on small business
Based on the foregoing, the emergency rules are expected to have minimal economic impact on small businesses.
Agency contact person
Statement on quality of agency data
The data used by the Department to prepare these proposed rules and analysis comply with s. 227.14 (2m), Stats. Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 105.525 is created to read:
DHS 105.525 Child care coordination providers.
(1) Prerequisites. For MA certification, an agency that provides child care coordination services under s. DHS 107.345 (1) shall: (a) Be an agency under s. DHS 105.52 (1) (a) to (d) or (f) to (o) that is certified to provide prenatal care coordination services. An agency providing services to residents of the city of Racine shall also participate in a program to reduce fetal and infant mortality and morbidity under s. 253.16, Stats. (b) Render services to one of the following groups:
1. Members who are residents of Milwaukee County.
2. Members who are residents of the city of Racine.
(2) Qualified professionals.
(a) Qualifications. In this section, “qualified professional" means any of the following:
