Wisconsin Legislature: DHS 107.02(5)(a)

Alert! This chapter may be affected by an emergency rule:

EmR2421

7. The effective and appropriate use of available services;

8. The misutilization practices of providers and recipients;

9. The limitations imposed by pertinent federal or state statutes, rules, regulations or interpretations, including medicare, or private insurance guidelines;

10. The need to ensure that there is closer professional scrutiny for care which is of unacceptable quality;

11. The flagrant or continuing disregard of established state and federal policies, standards, fees or procedures; and

12. The professional acceptability of unproven or experimental care, as determined by consultants to the department.

(f) Professional consultants. The department or its fiscal agent may use the services of qualified professional consultants in determining whether requests for prior authorization meet the criteria in par. (e).

(g) Authorization not transferable. Prior authorization, once granted, may not be transferred to another recipient or to another provider. In certain cases the department may allow multiple services to be divided among non-billing providers certified under one billing provider. For example, prior authorization for 15 visits for occupational therapy may be performed by more than one therapist working for the billing provider for whom prior authorization was granted. In emergency circumstances the service may be provided by a different provider.

(h) Medical opinion reports. Medical evaluations and written medical opinions used in establishing a claim in a tort action against a third party may be covered services if they are prior-authorized. Prior authorization shall be issued only where:

1. A recipient has sustained personal injuries requiring medical or other health care services as a result of injury, damage or a wrongful act caused by another person;

2. Services for these injuries are covered under the MA program;

3. The recipient or the recipient’s representative has initiated or will initiate a claim or tort action against the negligent third party, joining the department in the action as provided under s. 49.89, Stats.; and

4. The recipient or the recipient’s representative agrees in writing to reimburse the program in whole for all payments made for the prior-authorized services from the proceeds of any judgment, award, determination or settlement on the recipient’s claim or action.

(i) Significance of prior authorization approval.

1. Approval or modification by the department or its fiscal agent of a prior authorization request, including any subsequent amendments, extensions, renewals, or reconsideration requests:

a. Shall not relieve the provider of responsibility to meet all requirements of federal and state statutes and regulations, provider handbooks and provider bulletins;

b. Shall not constitute a guarantee or promise of payment, in whole or in part, with respect to any claim submitted under the prior authorization; and

c. Shall not be construed to constitute, in whole or in part, a discretionary waiver or variance under s. DHS 106.13.

2. Subject to the applicable terms of reimbursement issued by the department, covered services provided consistent with a prior authorization, as approved or modified by the department or its fiscal agent, are reimbursable provided:

a. The provider’s approved or modified prior authorization request and supporting information, including all subsequent amendments, renewals and reconsideration requests, is truthful and accurate;

b. The provider’s approved or modified prior authorization request and supporting information, including all subsequent amendments, extensions, renewals and reconsideration requests, completely and accurately reveals all facts pertinent to the recipient’s case and to the review process and criteria provided under s. DHS 107.02 (3);

c. The provider complies with all requirements of applicable state and federal statutes, the terms and conditions of the applicable provider agreement pursuant to s. 49.45 (2) (a) 9., Stats., all applicable requirements of chs. DHS 101 to 108, including but not limited to the requirements of ss. DHS 106.02, 106.03, 107.02, and 107.03, and all applicable prior authorization procedural instructions issued by the department under s. DHS 108.02 (4);

d. The recipient is MA eligible on the date of service; and

e. The provider is MA certified and qualified to provide the service on the date of the service.

(4) Cost-sharing.

(a) General policy. The department shall establish cost-sharing provisions for MA recipients, pursuant to s. 49.45 (18), Stats. Cost-sharing requirements for providers are described under s. DHS 106.04 (2), and services and recipients exempted from cost-sharing requirements are listed under s. DHS 104.01 (12) (a).

(b) Notification of applicable services and rates. All services for which cost-sharing is applicable shall be identified by the department to all recipients and providers prior to enforcement of the provisions.

(d) Limitation on copayments for prescription drugs. Providers may not collect copayments in excess of $5 a month from a recipient for prescription drugs if the recipient uses one pharmacy or pharmacist as his or her sole provider of prescription drugs.

(5) Services provided via telehealth. The department shall reimburse providers for medically necessary and appropriate health care services listed in this chapter and ss. 49.46 (2) and 49.47 (6) (a), Stats., when provided to currently eligible MA recipients via telehealth. Services provided via telehealth are subject to the same restrictions as services provided in an in-person setting unless otherwise specified in chs. DHS 101 to 109. Providers shall ensure that the locations from which they provide services via telehealth ensure privacy and confidentiality of recipient information and communications in a functionally equivalent manner to services provided in person. Benefits or services that may not be delivered via telehealth include any of the following:

(a) Services that are not covered when provided in person.

(b) Services that do not meet applicable laws, regulations, licensure requirements, or procedure code definitions if delivered via telehealth.

(d) Services the provider declines to deliver via telehealth.

(e) Services the recipient declines to receive via telehealth.

(f) Services provided by personal care workers, home health aides, private duty nurses, or school based service care attendants.

(g) Transportation.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; r. and recr. (1) and am. (14) (c) 12. and 13., Register, February, 1988, No. 386, eff. 3-1-88; cr. (4) (c) 14., Register, April, 1988, No. 388, eff. 7-1-88; r. and recr. (4) (c), Register, December, 1988, No. 396, eff. 1-1-89; emerg. am. (4) (a), r. (4) (c), eff. 1-1-90; am. (4) (a) r. (4) (c), Register, September, 1990, No. 417, eff. 10-1-90; am. (2) (b), r. (2) (c), renum. (2) (d) and (e) to be (2) (c) and (d), cr. (2m), Register, September, 1991, No. 429, eff. 10-1-91; emerg. cr. (3) (i), eff. 7-1-92; am. (2) (c) and (d), cr. (2) (e) to (j) and (3) (i), Register, February, 1993, No. 446, eff. 3-1-93; r. (2m) (a) 17., Register, November, 1994, No. 467, eff. 12-1-94; am. (2) (a), Register, January, 1997, No. 493, eff. 2-1-97; correction in (4) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1999, No. 520; correction in (3) (h) 3. made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; CR 03-033: am. (2m) (a) 10. and (c) Register December 2003 No. 576, eff. 1-1-04; corrections in (2) (e) to (j), (3) (d) (intro.), (i) 1. c., 2. c., and (4) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 14-066: r. (2m) (a) 7. Register August 2015 No. 716, eff. 9-1-15; CR 21-050: am. (3) (a) Register April 2022 No. 796, eff. 5-1-22; CR 22-043: cr. (5) Register May 2023 No. 809, eff. 6-1-23; EmR2306: emerg. cr. (1) (am), eff. 5-1-23; CR 23-045: cr. (1) (am) Register January 2024 No. 817, eff. 2-1-24.

DHS 107.03 Services not covered. The following services are not covered services under MA:

(1) Service charges for telephone calls;

(2) Charges for missed appointments;

(3) Sales tax on items for resale;

(4) Services provided by a particular provider that are considered experimental in nature;

(5) Procedures considered by the department to be obsolete, inaccurate, unreliable, ineffectual, unnecessary, imprudent or superfluous;

(6) Personal comfort items, such as radios, television sets and telephones, which do not contribute meaningfully to the treatment of an illness;

(7) Alcoholic beverages, even if prescribed for remedial or therapeutic reasons;

(8) Autopsies;

(9) Any service requiring prior authorization for which prior authorization is denied, or for which prior authorization was not obtained prior to the provision of the service except in emergency circumstances;

(10) Services subject to review and approval pursuant to s. 150.21, Stats., but which have not yet received approval;

(11) Psychiatric examinations and evaluations ordered by a court following a person’s conviction of a crime, pursuant to s. 972.15, Stats.;

(12) Consultations between or among providers, except as specified in s. 49.45 (29y), Stats.;

(13) Medical services for adult inmates of the correctional institutions listed in s. 302.01, Stats.;

(14) Medical services for a child placed in a detention facility;

(15) Expenditures for any service to an individual who is an inmate of a public institution or for any service to a person 21 to 64 years of age who is a resident of an institution for mental diseases (IMD), unless the person is 21 years of age, was a resident of the IMD immediately prior to turning 21 and has been continuously a resident since then, except that expenditures for a service to an individual on convalescent leave from an IMD may be reimbursed by MA.

(16) Services provided to recipients when outside the United States, except Canada or Mexico;

(17) Separate charges for the time involved in completing necessary forms, claims or reports;

(18) Services provided by a hospital or professional services provided to a hospital inpatient are not covered services unless billed separately as hospital services under s. DHS 107.08 or 107.13 (1) or as professional services under the appropriate provider type. No recipient may be billed for these services as non-covered;

(19) Services, drugs and items that are provided for the purpose of enhancing the prospects of fertility in males or females, including but not limited to the following:

(a) Artificial insemination, including but not limited to intra-cervical and intra-uterine insemination;

(b) Infertility counseling;

(d) Reversal of female sterilization, including but not limited to tubouterine implantation, tubotubal anastomoses or fimbrioplasty;

(e) Fertility-enhancing drugs used for the treatment of infertility;

(f) Reversal of vasectomies;

(g) Office visits, consultations and other encounters to enhance the prospects of fertility; and

(h) Other fertility-enhancing services and items;

(20) Surrogate parenting and related services, including but not limited to artificial insemination and subsequent obstetrical care;

(21) Ear lobe repair;

(22) Tattoo removal;

(23) Drugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics;

Note: In Flack v. Wisconsin Dep’t of Health Servs, 395 F. Supp. 3d 1001 (W.D. Wis. 2019), the United States District Court for the Western District of Wisconsin held that ss. DHS 107.03 (23) and (24) and 107.10 (4) (p) violated the Equal Protection Clause of the Fourteenth Amendment, s. 1557 of the Affordable Care Act, and the federal Medicaid Act. The court in Flack permanently enjoined the department from enforcing those provisions.

(24) Transsexual surgery;

(25) Impotence devices and services, including but not limited to penile prostheses and external devices and to insertion surgery and other related services; and

(26) Testicular prosthesis.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; emerg. r. and recr. (15), eff. 8-1-88; r. and recr. (15), Register, December, 1988, No. 396, eff. 1-1-89; emerg. am. (15), eff. 6-1-89; am. (15), Register, February, 1990, No. 410, eff. 3-1-90; am. (10), (12), (16) and (17), cr. (18), Register, September, 1991, No. 429, eff. 10-1-91; am. (17) and (18), cr. (19) to (26), Register, January, 1997, No. 493, eff. 2-1-97; correction in (13) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 2000, No. 538; CR 20-039: am. (12) Register October 2021 No. 790, eff. 11-1-21; CR 22-043: am. (1) Register May 2023 No. 809, eff. 6-1-23.

DHS 107.035 Definition and identification of experimental services.

(1) Definition. “Experimental in nature,” as used in s. DHS 107.03 (4) and this section, means a service, procedure or treatment provided by a particular provider which the department has determined under sub. (2) not to be a proven and effective treatment for the condition for which it is intended or used.

(2) Departmental review. In assessing whether a service provided by a particular provider is experimental in nature, the department shall consider whether the service is a proven and effective treatment for the condition which it is intended or used, as evidenced by:

(a) The current and historical judgment of the medical community as evidenced by medical research, studies, journals or treatises;

(b) The extent to which medicare and private health insurers recognize and provide coverage for the service;

(c) The current judgment of experts and specialists in the medical specialty area or areas in which the service is applicable or used; and

(d) The judgment of the MA medical audit committee of the state medical society of Wisconsin or the judgment of any other committee which may be under contract with the department to perform health care services review within the meaning of s. 146.37, Stats.

(3) Exclusion of coverage. If on the basis of its review the department determines that a particular service provided by a particular provider is experimental in nature and should therefore be denied MA coverage in whole or in part, the department shall send written notice to physicians or other affected certified providers who have requested reimbursement for the provision of the experimental service. The notice shall identify the service, the basis for its exclusion from MA coverage and the specific circumstances, if any, under which coverage will or may be provided.

(4) Review of exclusion from coverage. At least once a year following a determination under sub. (3), the department shall reassess services previously designated as experimental to ascertain whether the services have advanced through the research and experimental stage to become established as proven and effective means of treatment for the particular condition or conditions for which they are designed. If the department concludes that a service should no longer be considered experimental, written notice of that determination shall be given to the affected providers. That notice shall identify the extent to which MA coverage will be recognized.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86.

DHS 107.04 Coverage of out-of-state services. All non-emergency out-of-state services require prior authorization, except where the provider has been granted border status pursuant to s. DHS 105.48.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1999, No. 520.

DHS 107.05 Coverage of emergency services provided by a person not a certified provider. Emergency services necessary to prevent the death or serious impairment of the health of a recipient shall be covered services even if provided by a person not a certified provider. A person who is not a certified provider shall submit documentation to the department to justify provision of emergency services, according to the procedures outlined in s. DHS 105.03. The appropriate consultant to the department shall determine whether a service was an emergency service.

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; correction made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.