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: repeal DHS 75.56 (3) (b) 3., 75.60 (4) (a) and (b), 75.60 (7) (a) 10. and 11., 75.60 (8) (a) and (b), 105.23 (2) (a) 2. (Note), (a), (b) and (Note) 105.25 (2) (c), 107.13 (3m) (c) 2., 107.13 (3m) (d) 2.; renumber DHS 75.60 (4) (c) 1. to 6., and 101.13 (12m); renumber and amend DHS 75.60 (8) (intro.), 101.03 (13) and (Note), and 105.23 (3) (intro.); consolidate, renumber, and amend DHS 75.60 (4) (intro.) and (c); amend DHS 75.24 (11) (L) and (13) (m), 75.48 (1) (table) row (f), (2) (Table) first row and row (m), 75.51 (1), 75.52, 75.56 (title), (1), (2) (a) and (c), (3) (a) and (b) (intro.), 75.59 (6) (e) 1. and (19) (c), 101.03 (144), 104.01 (1) (a) 1. o., 105.07 (2) and (5), 105.21 (1) (a) to (e), 105.23 (title), (1) (intro) and (a) to (c), (2) (title), (a) (intro.) 2. and (b), (3) (title), 105.25 (title) and (1), 105.25 (2) (b), 105.52 (4) (c) 1. to 10., 107.08 (4) (d) 2., 107.11 (5) (a) to (u), 107.112 (4) (a) to (d), 107.13 (1) (a) and (b) 1. and 2. (intro.), (f) 1. to 7., and (2) (d) 3. (Note), (3) (title), (a) (intro.) and 1. to 6., and (c) 1. and 3., (3m) (title), (a) (intro.) and 1. to 4., (b) 1. and 3., (c) 1., (c) 3., 107.13 (3m) (d) 1., 3. to 6., 107.13 (4) (b) 1. a. to d., and (d) 1. to 7., 107.23 (2) (d), and 107.32 (1) (b); repeal and recreate DHS 105.25 (2) (a) and 107.13 (3m) (c) 4.; and create DHS 75.49 (3), 75.50 (4), 101.03 (172q), 105.235, and 107.13 (8), relating to community substance use services standards and medical assistance certification and reimbursement for certain substance use services.
FINDING OF EMERGENCY
An emergency rule is necessary to protect the public peace, safety, and welfare as the proposed changes are critical to providing access to substance use disorder treatment services. The nation’s drug overdose epidemic continues to worsen: there were more than 107,000 deaths from overdose reported in the United States between January 2021 to January 2022—up from 72,000 between January 2019 and January 2020. Synthetic opioids, primarily fentanyl, have been identified in most opioid overdose deaths. Provisional data shows the number of fentanyl overdose deaths in Wisconsin grew by 97 percent from 2019 (651) to 2021 (1,280). The sharp increase in overdose deaths is not only impacting those who use opioids, as cocaine deaths involving synthetic opioids increased by 134 percent from 2019 (182) to 2021 (426). Additionally, Wisconsin has the third-highest percentage of adults who drink alcohol, and it ranks third in the nation for binge drinking. Accordingly, substance use disorder treatment is in high demand but access is limited, creating waiting lists for those in need of care. One barrier to timely treatment access is a limited behavioral health workforce in comparison to the need. In addition, many program certifications separate mental health and substance use treatment, which does not align with the high prevalence of co-occurring needs for the individuals we serve.
The proposed emergency rules will remove barriers for providers to offer integrated care for patients with co-occurring mental health and substance use needs at the outpatient, intensive outpatient and day treatment levels of care. The proposed rules will also expand access to integrated crisis stabilization services to include community-based settings and to individuals experiencing suicidal ideation. Finally, the proposed rule will align our standards to changes in the federal regulations that allow prescribing Schedule III Buprenorphine medication for opioid use disorders to more than 30 individuals, while also removing hepatitis testing requirements. These proactive steps will reduce waitlists, increase access to care, and promote the best practice of integrated care to treat cooccurring mental health and substance use disorders—all of which are important steps to attempt to reduce overdose and death. The ability for citizens in Wisconsin to access appropriate treatment and community recovery resources is critical to improving the overall health of our citizens and reducing the impact of substance use disorders on individuals, families, and communities.
RULE SUMMARY
Statutes interpreted
Statutory authority
Explanation of agency authority
Section 46.973 (2), Stats., authorizes the department to establish a drug dependence and drug abuse program. The secretary may develop and carry out programs concerned with education about and prevention of drug dependence and drug abuse, and programs concerned with treatment and rehabilitation of drug dependent persons and persons who abuse drugs. The secretary shall appoint a drug dependence program coordinator to handle liaison with other departments and agencies, including the state council on alcohol and other drug abuse. These programs may include, but are not limited to: (c) Development of standards and provision of consultation for local drug dependence and drug abuse programs.
Section 51.42 (7) (b), Stats., authorizes the department to promulgate rules governing the provision of community substance use disorder (“SUD”) services. The department determines and monitors standards and requirements to administer services for community mental health, developmental disabilities, and substance use. Section 51.4224, Stats., provides that the department shall promulgate rules establishing standards for certification of community support programs by county departments. Section 51.45 (8) directs the department to establish minimum health and treatment standards for approval as a public or private treatment facility, and to set fees to be charged for the department to inspect those facilities. Subsection (9) requires that the department promulgate rules for accepting individuals into substance use treatment programs, with guidance to prioritize voluntary treatment on an outpatient basis, with individualized treatment plans for each patient and a continuum of services provided. 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. Additionally, s. 49.45 (10), Stats., authorizes the department “to promulgate such rules as are consistent with its duties in administering medical assistance.” Section 49.45 (30e) (b), Stats., requires that the Department promulgate rules for community-based psychosocial services programs with respect to eligibility, the scope of services provided, certification, and any other conditions of coverage. 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 recipient,” including all of the following, identified in pars. (a) 1., and (b) 6.f., h., k. Lr. and (15) : • “Physicians’ services, excluding services provided under par. (b) 6. f.”
• “Medical day treatment services, mental health services and alcohol and other drug abuse services, including services provided by a psychiatrist” when prescribed or ordered by a provider acting within the scope of their practice.
• “Legend drugs, as listed in the Wisconsin medical assistance drug index.”
• “Alcohol and other drug abuse day treatment services.”
• “Psychotherapy and alcohol and other drug abuse services, as specified under s. 49.45 (30f).” • Crisis intervention services under s. 49.45 (41), Stats. Related statute or rule
Plain language analysis
Since Chapter DHS 75 was repealed and recreated in October 2022 via Clearinghouse Rule CR 20-047, there has been extensive consultation with stakeholders regarding the implementation of these community substance use standards and needed revisions to ch. DHS 75 and related medical assistance (“MA”) rules. The proposed rules seek to remove regulatory barriers and increase access to treatment services by doing all of the following: • Amending language in ch. DHS 75 to align with updated federal requirements and allowances regarding prescribing Schedule III Buprenorphine medication for opioid use disorders to more than 30 individuals. • Amending the outpatient applicability standards in ch. DHS 75 to include exemptions for ch. DHS 35 certified outpatient mental health clinics and licensed rural health clinics to expand the eligible provider pool for treatment services. • Amending ss. DHS 75.51 and 75.52 to expand integrated treatment for mental health and substance use disorders to the intensive outpatient and day treatment/partial hospitalization levels of care respectively. • Amending ss. DHS 75.56 to allow for the provision of integrated crisis stabilization services in community-based settings. • Amending DHS 75.56 to allow individuals experiencing suicidal ideation admission into crisis stabilization services.
• Removing all references in ch. DHS 75 requiring hepatitis testing in various settings. In addition, the department proposes to revise chs. 101, 104, 105, and 107 to align MA program coverage with the program updates for intensive outpatient and day treatment/partial hospitalization services. The proposed rules also identify the staff who are qualified to provide and be reimbursed for substance use disorder (SUD). The proposed rules also include the following revisions: • Creating s. DHS 105.235 to outline provider certification requirements for integrated intensive outpatient services providers to enroll in Wisconsin Medicaid.
