Chapter DHS 109

DHS 109.31 DHS 109.31 Covered drugs and limitations on coverage.

DHS 109.31(1) (1) Covered services. Drugs and drug products covered under this chapter include prescription drugs and insulin listed in the Wisconsin medical assistance drug index that are prescribed by a physician licensed under s. 448.04, Stats., by a dentist licensed under s. 447.04, Stats., by a podiatrist licensed under s. 448.04, Stats., by an optometrist licensed under ch. 449, Stats., or by a nurse prescriber under ch. N 8, or when a physician delegates prescription of drugs to a nurse practitioner or to a physician’s assistant certified under s. 448.04, Stats., and the requirements under s. N 6.03 for nurse practitioners and under s. Med 8.07 for physician assistants are met. The limitations on coverage and services in this section apply to co-pay, spend-down and deductible.

DHS 109.31(2) (2) Prior authorization.

DHS 109.31(2)(a) (a) Drugs requiring prior authorization. The following drugs and supplies require prior authorization:

DHS 109.31(2)(a)1. 1. All schedule III and IV stimulant drugs.

DHS 109.31(2)(a)2. 2. Drugs that have been demonstrated to entail significant expense or overuse for the medical assistance program. These drugs shall be noted in the Wisconsin medical assistance drug index.

DHS 109.31(2)(a)3. 3. Drugs identified by the department that may be used to treat impotence, when proposed to be used for the treatment of a condition not related to impotence.

DHS 109.31(2)(b) (b) Request for prior authorization.

DHS 109.31(2)(b)1. 1. In considering a prior authorization request under this chapter made by a provider under sub. (1), the department shall require the information required in s. DHS 107.02 (3) (d) and apply the review criteria in s. DHS 107.02 (3) (e).

DHS 109.31(2)(b)2. 2.

DHS 109.31(2)(b)2.a. a. If a SeniorCare provider under sub. (1) does not request and obtain prior authorization before providing a prescription drug requiring prior authorization, the department may not provide reimbursement except in an emergency.

DHS 109.31(2)(b)2.b. b. Except in an emergency case as specified under subd. 2. a., the department may not cover a prescription drug or apply a participant’s purchase to the deductible or spend-down if the department has not prior authorized a drug requiring prior authorization. A certified provider may not hold a recipient liable for payment for a covered service requiring prior authorization by the department unless the department denies the prior authorization request and the provider informs the recipient of the recipient’s personal liability before provision of the service. If the department denies the recipient’s prior authorization request, the recipient may request a fair hearing under s. DHS 109.63. SeniorCare providers are required to request prior authorization for all SeniorCare participants.

DHS 109.31(3) (3) Other limitations.

DHS 109.31(3)(a) (a) SeniorCare providers shall limit dispensing of schedule III, IV and V drugs to the original dispensing plus 5 refills, or 6 months from the date of the original prescription, whichever comes first.

DHS 109.31(3)(b) (b) SeniorCare providers shall limit dispensing of non-scheduled legend drugs and insulin to the original dispensing plus 11 refills, or 12 months from the date of the original prescription, whichever comes first.

DHS 109.31(3)(c) (c) SeniorCare providers shall fill:

DHS 109.31(3)(c)1. 1. Generically-written prescriptions for drugs listed in the federal food and drug administration approved drug products publication with a generic drug included in that list.

DHS 109.31(3)(c)2. 2. Prescription orders written for brand name drugs that have a lower cost generically available drug with the lower cost drug product, unless the prescribing provider under sub. (1) writes “brand medically necessary” on the face of the prescription. The prescribing provider shall document in the patient’s record the reason why the drug is medically necessary.

DHS 109.31(3)(d) (d) Except as provided in par. (e), SeniorCare providers shall dispense prescription drugs in amounts not to exceed a 34-day supply.

DHS 109.31(3)(e) (e) SeniorCare providers may dispense certain maintenance drugs specified under s. DHS 107.10 (3) (e), in amounts up to but not to exceed a 100-day supply, as prescribed by a physician.

DHS 109.31 Note Note: The maintenance drugs listed in section DHS 107.10 (3) (e) are: digoxin, digitoxin, digitalis; hydrochlorothiazide and chlorothiazide; prenatal vitamins; fluoride; levothyroxine, liothyronine and thyroid extract; phenobarbital; phenytoin; and oral contraceptives.

DHS 109.31 Note Note: Par. (e) is amended by 2023 Wis. Act 71 as shown below, effective upon approval by the federal secretary of health and human services of a waiver or amendment to a waiver requested under Section (3) of 2023 Wis. Act 71. If the waiver or amendment to a waiver requested under Section 3 is denied, the amendment by 2023 Wis. Act 71, as shown below, is void.

DHS 109.31 Note (e) SeniorCare providers may dispense certain maintenance drugs specified under s. DHS 107.10 (3) (e) or any other drug, as determined by the department on the basis of clinical considerations, safety, costs, and other factors, in amounts up to but not to exceed a 100-day supply, as prescribed by a physician.

DHS 109.31(3)(f) (f) The only general category of over-the-counter drugs that shall be covered are the insulins.

DHS 109.31(3)(g) (g) The innovator of a multiple-source drug shall be a covered service only when the prescribing provider under sub. (1) certifies by writing the phrase “brand medically necessary” on the prescription.

DHS 109.31(3)(h) (h) SeniorCare shall only cover vaccines that are recommended for immunization to adults by the federal centers for disease control and prevention’s advisory committee on immunization practices and administered by a SeniorCare provider in an allowed place of service.

DHS 109.31(4) (4) Lock-in program.

DHS 109.31(4)(a) (a) Required when program is abused. If the department discovers that a participant is abusing the program, including the type of abuse under s. DHS 109.61 (1) and (5), the department may require the participant to designate one pharmacy as the SeniorCare lock-in provider of the participant’s choice.

DHS 109.31(4)(b) (b) Selection of lock-in provider. The department shall allow a participant to choose a lock-in provider from the department’s current list of certified SeniorCare providers. The participant’s choice shall become effective only with the concurrence of the designated lock-in provider.

DHS 109.31(4)(c) (c) Failure to cooperate. If the participant fails to designate a lock-in provider within 15 days after receiving a formal request from the department, the department shall designate a lock-in provider for the participant.

DHS 109.31(5) (5) Non–covered services. In addition to possible non-coverage without prior authorization of some drugs under sub. (2) (b) 2., the following drugs are not covered under this chapter:

DHS 109.31(5)(a) (a) A drug not covered under the medical assistance program under s. DHS 107.10 (4).

DHS 109.31(5)(b) (b) A drug produced by a manufacturer who has not entered into a rebate agreement with the department, as required by s. 49.688, Stats.

DHS 109.31(6) (6) Drug review, counseling and recordkeeping.

DHS 109.31(6)(a) (a) In addition to complying with ch. Phar 7, a SeniorCare provider shall do all of the following:

DHS 109.31(6)(a)1. 1. Provide for a review of drug therapy before each prescription is filled or delivered to a SeniorCare participant. The review shall include screening for potential drug therapy problems including therapeutic duplication, drug-disease contraindications, drug-drug interactions, incorrect drug dosage or duration of drug treatment, drug-allergy interactions and clinical abuse or misuse.

DHS 109.31(6)(a)2. 2. Offer to discuss with each SeniorCare participant, the participant’s legal representative or the participant’s caregiver who presents the prescription, matters which, in the exercise of the SeniorCare provider’s professional judgment and consistent with state statutes and rules governing provisions of this information, the SeniorCare provider deems significant, including the following:

DHS 109.31(6)(a)2.a. a. The name and description of the medication.

DHS 109.31(6)(a)2.b. b. The route, dosage form, dosage, route of administration, and duration of drug therapy.

DHS 109.31(6)(a)2.c. c. Specific directions and precautions for preparation, administration and use by the patient.

DHS 109.31(6)(a)2.d. d. Common severe side effects or adverse effects or interactions and therapeutic contraindications that may be encountered, including how to avoid them, and the action required if they occur.

DHS 109.31(6)(a)2.e. e. Techniques for self-monitoring drug therapy.

DHS 109.31(6)(a)2.f. f. Proper storage.

DHS 109.31(6)(a)2.g. g. Prescription refill information.

DHS 109.31(6)(a)2.h. h. Action to be taken in the event of a missed dose.

DHS 109.31(6)(a)3. 3. Make a reasonable effort to obtain, record and maintain at least the following information regarding each SeniorCare participant for whom the SeniorCare provider dispenses drugs under the SeniorCare program:

DHS 109.31(6)(a)3.a. a. The participant’s name, address, telephone number, date of birth or age and gender.

DHS 109.31(6)(a)3.b. b. The participant’s medical history where significant, including any disease state or states, known allergies and drug reactions, and a comprehensive list of medications and relevant devices.

DHS 109.31(6)(a)3.c. c. The SeniorCare provider’s comments related to the participant’s drug therapy.

DHS 109.31(6)(b) (b) Nothing in this subsection shall be construed as requiring a SeniorCare provider to provide consultation when a SeniorCare participant, the participant’s legal representative or the participant’s caregiver refuses the consultation.

DHS 109.31 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; corrections in (2) (b), (3) (e) and (5) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register February 2014 No. 698; CR 22-046: cr. (3) (h) Register June 2023 No. 810, eff. 7-1-23.

DHS 109.32 DHS 109.32 Coverage while out-of-state. Drugs shall be covered for a SeniorCare participant only if the participant is within the United States, Canada or Mexico. Drugs provided by a person in another state who is not certified as a border status provider shall be covered only under either of the following circumstances:

DHS 109.32(1) (1) As a result of an accident or sudden illness, the individual needs the drug to prevent the individual’s death or the serious impairment of the individual’s health.

DHS 109.32(2) (2) When the department has granted prior authorization for provision of a non-emergency service, except that prior authorization is not required for non-emergency services provided to Wisconsin participants by border status providers certified by the Wisconsin medical assistance program.

DHS 109.32 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

subch. IV of ch. DHS 109 Subchapter IV — Program Integrity

DHS 109.41 DHS 109.41 Annual report to legislature. The department shall monitor compliance with s. 49.688, Stats., and the provisions of this chapter by SeniorCare providers.

DHS 109.41 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

DHS 109.42 DHS 109.42 Prohibition on fraud.

DHS 109.42(1) (1) No person may do any of the following:

DHS 109.42(1)(a) (a) Knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for any SeniorCare benefit or payment.

DHS 109.42(1)(b) (b) Knowingly and willfully make or cause to be made any false statement or representation of a material fact for use in determining rights to any SeniorCare benefit or payment.

DHS 109.42(1)(c) (c) Have knowledge of the occurrence of any event affecting the initial or continued right to any SeniorCare benefit or payment, or the initial or continued right to any such benefit, or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, or conceal or fail to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

DHS 109.42(1)(d) (d) Having made application to receive any SeniorCare benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such benefit or payment or any part thereof to a use other than for the use and benefit of such other person.

DHS 109.42(2) (2) Violators of this section shall be subject to penalties under s. 49.688 (9), Stats.

DHS 109.42 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

subch. V of ch. DHS 109 Subchapter V — Provider Rights and Responsibilities

DHS 109.51 DHS 109.51 Provider responsibility.

DHS 109.51(1) (1) Audit and program monitoring.

DHS 109.51(1)(a) (a) Providers shall comply with the audit and program monitoring conditions under s. DHS 105.01 (3) (f) 1. to 3.

DHS 109.51(1)(b) (b) Nothing in this subsection shall be construed to limit the right of a provider to appeal a department recovery action brought under s. DHS 109.53 (4).

DHS 109.51(2) (2) Confidentiality of medical information. Information about participants shall be confidential in accordance with ss. 146.81 to 146.83, Stats. No privilege exists under the SeniorCare program regarding communications or disclosures of information requested by appropriate federal or state agencies or an authorized agent of such agencies concerning the extent or kind of services provided participants under the program. The disclosure by a SeniorCare provider of these communications or medical records, made in good faith under the requirements of this program, shall not create any civil liability or provide any basis for criminal actions for unprofessional conduct.

DHS 109.51(3) (3) Provider responsibility. At the request of a person authorized by the department and on presentation of that person’s credentials, a SeniorCare provider shall permit access to any requested records, whether in written, electronic, or micrographic form. Access for purposes of this subsection shall include the opportunity to inspect, review, audit and reproduce the records.

DHS 109.51(4) (4) Record retention. Termination of a SeniorCare provider’s program participation does not end the SeniorCare provider’s responsibility to retain and provide access to records unless an alternative arrangement for retention, maintenance and access has been established by the SeniorCare provider and approved in writing by the department.

DHS 109.51(5) (5) Submission of claims. A SeniorCare provider shall submit all claims for prescription drugs purchased by a participant during spend-down and deductible periods.

DHS 109.51(6) (6) Third party liability. A SeniorCare provider shall seek reimbursement from any third party insurer legally liable to contribute in whole or in part to the cost of prescription drugs prior to billing the SeniorCare program.

DHS 109.51(7) (7) Refunds to participants. A SeniorCare provider shall fully refund participant payments for drugs subsequently covered by SeniorCare. If either the deductible or copayment retroactively applies, the provider shall fully refund the participant the excess amount that the participant paid. The excess is the difference between the actual amount the participant paid and the amount the participant is responsible for under SeniorCare.

DHS 109.51(8) (8) Limitations on copayments and deductibles.

DHS 109.51(8)(a) (a) As a condition of participation by a SeniorCare provider in the program under s. 49.45, 49.46, or 49.47, Stats., the SeniorCare provider may not charge an eligible participant who presents a valid prescription order and a SeniorCare identification an amount for a prescription drug under the order that exceeds the following:

DHS 109.51(8)(a)1. 1. For a deductible benefit, as specified in s. DHS 109.13 (3), the program payment rate.

DHS 109.51(8)(a)2. 2. For a prescription benefit, the copayment amount, as applicable, that is specified in s. DHS 109.13 (2) (b). No dispensing fee may be charged to a person under this paragraph.

DHS 109.51(8)(a)3. 3. For persons receiving spend-down services, as specified in s. DHS 109.13 (4), the retail price.

DHS 109.51(8)(b) (b) The department shall calculate and transmit amounts that may be used in calculating charges under par. (a) to SeniorCare providers.

DHS 109.51 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; correction in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 22-046: am. (5) Register June 2023 No. 810, eff. 7-1-23.

DHS 109.52 DHS 109.52 Provider certification.

DHS 109.52(1) (1) General. This section identifies the terms and conditions under which SeniorCare providers of drugs are certified for participation in the program.

DHS 109.52(2) (2) Pharmacies.

DHS 109.52(2)(a) (a) For SeniorCare certification, pharmacies located in Wisconsin shall meet the requirements for registration and practice under ch. 450, Stats., and chs. Phar 1 to 17. Pharmacies certified to serve patients under the medical assistance program under ch. DHS 105 are required to serve SeniorCare participants.

DHS 109.52(2)(b) (b) Pharmacies located outside of Wisconsin are exempt from the requirement under par. (a), but shall be registered or licensed by the appropriate agency in the state in which they are located.