DepartmenT of Health Services Office of Legal Counsel | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT 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.
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. _Hlk196896567Section 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. •• Creating s. DHS 107.13 (8) to outline the integrated intensive outpatient program services that will be covered by Wisconsin Medicaid. •• Amending s. DHS 105.25 to align provider certification requirements for DHS 75.52 integrated day treatment/partial hospitalization services to enroll in Wisconsin Medicaid. •• Amending s. DHS 107.13 (3m) to align the covered services for integrated day treatment/partial hospitalization services by Wisconsin Medicaid. •• Amending s. DHS 105.23 to include additional qualified staff of substance use disorders, including qualified treatment trainees. •• Amending DHS s. 107.13 (2) (a) 3. to clarify allowable psychotherapy providers, including qualified treatment trainees. •• Replacing “alcohol or drug abuse” or “AODA” in various provisions in chs. DHS 101, 104, 105, and 107 with “substance use disorder” or “SUD.” The existing AODA and related terminology is outdated and has been replaced by SUD in federal regulations and ch. DHS 75. •• When one of the above edits is made to a subunit and that subunit does not match the formatting conventions in the Administrative Rules Procedures Manual (namely s. 1.11 (3), regarding subunits ending with periods instead of semicolons), revising all accompanying subunits to align with the Rules Manual. Summary of, and comparison with, existing or proposed federal regulations
Federal regulations outline expectations with regard to substance use patient confidentiality protections in 42 CFR Part 2, the administration of opioid treatment programs by the state opioid treatment authority in 42 CFR Part 8, federal Medicaid coverage policies for behavioral health services in 42 CFR Part 440, and requirements for recipients of substance abuse prevention and treatment block grant funds in 45 CFR Part 96. The federal regulations and requirements are incorporated into the proposed rule and updated for any recent changes in federally required standards of practice. Comparison with rules in adjacent states
Illinois:
Illinois rules for substance use treatment align with ASAM levels of care, although they do not appear to include specific requirements related to hepatitis testing, crisis stabilization, or integrated co-occurring treatment services for individuals with mental health and substance use disorders. Ill. Admin. Code tit. 77, p. 2060. As of October 2024, Illinois Medicaid rules reference the certification requirements noted above. There are no additional Medicaid details for comparison.
Iowa:
Iowa rules for substance use disorder treatment align with ASAM levels of care, although they do not appear to include specific requirements related to of hepatitis testing, crisis stabilization, or integrated co-occurring treatment services for individuals with mental health and substance use disorders. I.C.A. ch. 155. As of October 2024, Iowa Medicaid rules reference the certification requirements noted above. There are no additional Medicaid details for comparison. Michigan:
Michigan rules were revised in 2023 in the following areas: branch locations; mobile units; naloxone access; staff development and training; outpatient counseling providers; medication assisted treatment; prevention, residential and inpatient programs. The rule does not address the provision of hepatitis testing, crisis stabilization, or integrated co-occurring treatment services for individuals with mental health and substance use disorders. Mich. Admin. Code, R. 325.1301 to 235.1399. As of October 2024, Michigan Medicaid rules reference the certification requirements noted above. There are no additional Medicaid details for comparison.
Minnesota:
Minnesota rules utilize their statewide placement tool that is consistent with ASAM levels of care. Minnesota has provisions for integrated care of co-occurring treatment services for individuals with mental health and substance use disorders. Minnesota’s rules and statutes also incorporate language related to behavioral health crisis facilities grants. The statute does not address the provision of hepatitis testing. Minn. Stat. ch. 245G; Minn. Stat. s. 245.4863. As of October 2024, Minnesota Medicaid rules reference the certification requirements noted above. There are no additional Medicaid details for comparison. Summary of factual data and analytical methodologies
During the 2022 implementation of ch. DHS 75, the department created a resource website for substance use providers that included frequently asked questions, network meetings, presentations, and an email account for inquiries. The department’s internal ch. DHS 75 workgroup utilized the feedback obtained from this outreach in the identification of possible revisions to the rule. This workgroup consisted of subject-matter experts from the Division of Care and Treatment Services and the Division of Medicaid Services, as well as consultation with our partners from the Division of Quality Assurance. The department formed an advisory committee to advise on changes to chs. DHS 75, 105, and 107 related to the Statement of Scope for these proposed rules. The committee included representatives of Tribal Affairs Office; Wisconsin County Human Services Association; Wisconsin Hospital Association; Wisconsin Primary Health Care Association; Dewey Center at Aurora Psychiatric Hospital; Safe Communities; Addiction Medical Solutions; Wisconsin Society of Addiction Medicine; National; Association of Social Workers-Wisconsin Chapter; National Association for Alcoholism and Drug Abuse Counselors; Tellurian, Wisconsin Association of Family and Children’s Agencies; and Clean Slate. Advisory committee members were provided a copy of draft language of the proposed rules and asked to provide comments.
