ORDER OF
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services proposes an order to repeal DHS 35.16 (4) (b), 107.02 (2m) (a) 7., and 107.13 (2) (a) 2. and (b) 4. b.; to amend 107.13 (2) (a) (intro.) and (d) (intro) and 1. to 4.; and to create 107.13 (2) (a) 4. g. and (d) 3. Note, relating to medical assistance (MA) coverage for outpatient mental health services.
RULE SUMMARY
Statute interpreted
Statutory authority
The department’s authority to revise the referenced rules is as follows:
Explanation of agency authority
The department’s authority to revise the proposed rules is as follows:
Section 49.45 (10), Stats., reads: Rule-making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. Section 227.11 (2) (a) 1. to 3., Stats. reads: Rule-making authority is expressly conferred as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related statute or rule
See the "Statute interpreted" section.
Plain language analysis
Section DHS 35.16 (4) (b) requires as a condition for MA reimbursement, a physician’s prescription for psychotherapy services. Similarly, ss. DHS 107.02 (2m) (a) 7. and 107.13 (2) (a) (intro.) and 2. and (b) 4. b., require a physician’s prescription for mental health services, alcohol and other drug abuse services, and psychotherapy services as a condition for MA reimbursement. Pursuant to ss. 49.45 (30f) and 49.46 (2) (b) 6. f., fm., k., and Lr., Stats., the department is prohibited from requiring a prescription from a physician or other health care provider for psychotherapy services, medical day treatment services, or mental health and alcohol and other drug abuse services as a condition for MA reimbursement. Thus, the department proposes to conform ss. DHS 35.16 (4) (b), 107.02 (2m) (a) 7., and 107.13 (2) (a) (intro.) and 2. and (b) 4. b. to existing state law. 2013 Wisconsin Act 20 included funding to expand MA outpatient mental health coverage to in-home psychotherapy services for children. See, LFB Budget Summary. To effectuate this, the department proposes to revise s. DHS 107.13 (2) (a) 4. and (d) 3. to permit in-home psychotherapy services as a covered service for children. Summary of, and comparison with, existing or proposed federal regulations
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the rules.
Comparison with rules in adjacent states
Illinois:
In-home psychotherapy services as a MA covered service for children is implemented by Illinois statutes only. There are no administrative rules.
Iowa:
The Iowa Administrative Code provides broad latitude as to the location of service. Iowa administrative code section 441 IAC 78.1 permits payments for all medically necessary services and supplies provided by the physician including services rendered in the physician’s office or clinic, the home, in a hospital, nursing home or elsewhere.
Michigan:
In-home psychotherapy services as a MA covered service for children is implemented by Michigan statutes only. There are no administrative rules.
Minnesota:
In-home psychotherapy services as a MA covered service for children is implemented by Minnesota statutes only. There are no administrative rules.
Summary of factual data and analytical methodologies
The department reviewed ss. 49.45 (30f) and 49.46 (2) (b) 6. f., fm., k., and Lr., Stats.; 2013 Wisconsin Act 20 relating to expansion of the MA outpatient mental health coverage to in-home psychotherapy services for children (see, LFB Budget Summary); and the existing rules affected by this proposed rule to determine the changes required to conform the rules to statute and to effectuate the changes necessary to permit the provision of in-home psychotherapy services for children.
