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 proposes an order to: repeal DHS 107.36 (3) (j) and (k); amend DHS 105.53 (3) (a) 3. and 4., (c) 1., and (6) (b), 107.36 (1) (b) to (i), (2) (b) 2., and (3) (c); and create DHS 105.53 (1m), 107.36 (1) (j) to (L), relating to school-based services and school-based service providers under Medical Assistance.
FINDING OF EMERGENCY
Preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take to promulgate the permanent rule. The Centers for Medicare & Medicaid services (“CMS”) issued guidance related to implementation of the Bipartisan Safer Communities Act, Public Law 117-159, to encourage states to increase student access to school-based services (“SBS”). Under current policy, for a school to bill Wisconsin medical assistance (“MA”) for SBS and receive federal reimbursement, the MA-enrolled student receiving the SBS must have an individualized education plan (“IEP”), and the SBS must be included in the student’s IEP. The Department intends to implement these new flexibilities through a state plan amendment (“SPA”), which is expected to take effect before the start of the 2025-2026 school year. Provisions in Chapters DHS 105 and 107 currently require that any SBS be included in the MA-enrolled student’s IEP, and they conflict with the changes that will take effect under the SPA. Emergency rules are therefore necessary to ensure the SPA can take effect without issue before the start of the upcoming school year. Emergency rulemaking will further serve public health and welfare by ensuring that more Wisconsin students have access to medically necessary SBS at the start of the 2025 – 26 school year. These SBS include physical and occupational therapies, speech therapy, dental services, behavioral health services, physician and nursing services, and case management services. To date, 25 states have allowed MA coverage for some or all SBS outside of an IEP, including Florida, Tennessee, Georgia, and South Carolina. The Department estimates that expansion of these services could result in schools being able to bill Wisconsin MA for SBS provided to approximately 298,000 more children per school year than under current policy.
RULE SUMMARY
Statutes interpreted
Statutory authority
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), 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 MA benefits. Section 49.45 (2) (a) 1., Stats. • Cooperat(ing) with the division for learning support in the department of public instruction to carry out the provisions of Title XIX.” Section 49.45 (2) (a) 5. • Establish(ing) criteria for the certification of providers of medical assistance and promulgating rules to implement that authority. Section 49.45 (2) (a) 11, Stats. Section 49.45 (10), Stats., authorizes the department to “promulgate such rules as are consistent with its duties in administering medical assistance,” including its duties relating to reimbursement for services by certified providers. 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 49.45 (39), Stats., directs the department to submit an amendment to the federal department of health and human services requesting to allow MA coverage of SBS and, if approved, authorizes the department to reimburse for school medical services. Section 49.45 (39) (c) directs the department to promulgate rules establishing certification and reporting requirements with respect to these school medical services. 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) 14. Identifies school medical services (SBS) as MA reimbursable services. Related statute or rule
42 USC 1396a, specifically the note created in Pub. L. 117-159, div. A, title I, s. 110033 (June 25, 2022) Chapter PI 11, relating to children with disabilities. Plain language analysis
The Department is seeking to revise DHS chs. 105 and 107 to clarify what services are allowable SBS and which providers can be reimbursed by MA for these services. These changes are expected to expand access to medically-necessary services for kids in school. Under current administrative code, MA-covered SBS are limited to services specifically identified in a student’s IEP. IEPs are the only type of care plan that can document medical necessity under current admin code. These changes will allow MA to cover other medically-necessary services by allowing other types of care plans to document medical necessity. Based on requirements in the Pub. L. 117-159, div. A., title I, s. 11003, which required guidance from CMS on SBS, the Department has submitted a SPA to expand access to covered SBS consistent with that guidance. The SPA is expected to take effect July 1, 2025. The Department’s administrative rules must be updated to align with the state plan changes.
Specifically, the Department proposes to make the following changes:
• Revise ch. DHS 105 to clarify the record-keeping requirements for SBS providers and what types of treatment plans may be used to document medical necessity. • Revise ch. DHS 107 to clarify the types of SBS that will be reimbursed by MA. • Revise ch. DHS 107 to clarify the provider types who may be reimbursed for services provided in school-based settings. There are no reasonable alternatives to rulemaking. The department’s current administrative rules conflict with the state plan amendment that is expected to take effect before the start of the 2025-2026 school year.
These changes may impact school districts. School districts will be able to be reimbursed for services they already provide to MA-enrolled students. Under current administrative rules, these services cannot be reimbursed unless they are identified in a student’s IEP. The additional reimbursement is composed only of additional federal dollars, and does not impact general purpose revenue.
Summary of, and comparison with, existing or proposed federal regulations
The Individuals with Disabilities Education Act (IDEA)… makes available “a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children, supports early intervention services for infants and toddlers and their families, and awards competitive discretionary grants.” 34 CFR 300.154 describes the role of MA in providing for these services, including MA reimbursement of SBS. The 2014 State Medicaid Director Letter #14-006, Medicaid Payment for Services Provided without Charge, pertains to “free care,” or MA covered services that are available without charge to the community at large. SMDL #14-006 withdrew prior guidance on free care policy, noting that “Medicaid reimbursement is available for covered services under the approved state plan that are provided to Medicaid beneficiaries, regardless of whether there is any charge for the service to the beneficiary or the community at large.” As a result, MA payment is available for MA-covered services that are provided to MA beneficiaries, regardless of whether there is any charge for the service to the beneficiary or the community at large. This expands the population of students eligible to receive SBS from only students with IEPs to all MA enrolled students.
In 2023, the Centers for Medicare & Medicaid services (“CMS”) issued guidance related to implementation of the Bipartisan Safer Communities Act, Public Law 117-159 s. 11003, to encourage states to increase student access to school-based services (“SBS”). To date, 25 states have allowed MA coverage for some or all SBS outside of an IEP, including Florida, Tennessee, Georgia, and South Carolina.
CMS specifies that if states that have language in their state plans tying coverage of services to an IEP, these states would need to submit a State Plan Amendment to CMS to remove this requirement. Wisconsin has submitted a State Plan Amendment to this effect, and anticipates an effective date of July 1, 2025.
The Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) benefit provides a comprehensive array of prevention, diagnostic, and treatment services for low-income infants, children, and adolescents under age 21, as specified in Section 1905(r) of the Social Security Act. The EPSDT benefit encompasses any medically necessary services for eligible MA-enrolled members, including in a school-based setting. EPSDT benefits are described in the Wisconsin MA State Plan.
Comparison with rules in adjacent states
Illinois: Illinois MA covers SBS provided outside of an IEP. Illinois administrative rules do not reference coverage of SBS. Illinois further details requirements for MA SBS in the Illinois MA State Plan. Illinois State Plan Amendment # 21-0008-CP gave Illinois the authority to expand coverage of SBS outside of an IEP/IFSP where medical necessity has been established. Iowa: Iowa MA only covers SBS when provided for in a student’s IEP. Section 441.78.50 of the of Iowa administrative code speaks to MA coverage of SBS and does not refer to IEP/IFSP. The Iowa state website outlines that SBS may be covered when provided to students within an approved IEP or IFSP. Michigan: Michigan MA covers SBS provided outside of an IEP. Michigan administrative rules speak to SBS, but do not reference requirements related to IEPs. Michigan further details requirements for SBS in the Medicaid Provider Manual section 6.25. The handbook explains that evaluations, testing, and other services not related to a student IEP/IFSP may be covered by MA. Minnesota: Minnesota MA covers SBS provided outside of an IEP. Minnesota administrative rules do not speak to these SBS.
Minnesota Stat. s. 256B.0625 Subd. 26 allows for SBS when provided for in an IEP/IFSP. Minnesota Stat. s. 145.903 directs the commissioner of health to “administer a program to provide grants to school districts and school-based health centers to support existing centers and facilitate the growth of school-based health centers in Minnesota.” Minnesota further details requirements for Medicaid SBS in the MA Provider Manual, where the School-Based Community Services benefit is described. These services are covered as part of the MA benefit and coverage applies for students who are not receiving SBS though an IEP/IFSP. Summary of factual data and analytical methodologies
In accordance with s. 227.13, Stats., the department conducted informal consultation and gathered feedback from the Department of Public Instruction, Madison Metropolitan School District, and the Wisconsin Association of School Nurses. The Department also attended several industry conferences to socialize potential SBS changes with impacted parties, and distributed two surveys to all Wisconsin school districts to better understand barriers to providing SBS and potential approaches to address these barriers. All feedback has been incorporated into the proposed rule changes.
Analysis and supporting documents used to determine effect on small business
The proposed rules are unlikely to affect small businesses.
Effect on small business
The proposed rules are unlikely to affect small businesses. It is possible that a school could contract with a small business to offer some SBS, and the proposed rules would allow for more services to be provided and reimbursed. However, no school district in Wisconsin currently contracts for services in this manner, and its likelihood is too remote to accurately quantify.
Agency contact person
Allie Merfeld
Division of Medicaid Services
608-267-4029
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
