DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | 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 107.10 (1) (Note 2); amend DHS 107.08 (4) (d) (intro) and 1. to 14., 107.10 (1); and create DHS 105.155, 107.067, 107.08 (4) (d) 12m., relating to pharmacist certification and reimbursement for patient care services through Medical Assistance (MA).
RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
Section 49.46 (2) (bh), Stats., directs the department to “provide reimbursement for services that are reimbursable under this section and that are provided by a licensed pharmacist within the scope of his or her licensure or are services performed under s. 450.033.”
Section 49.45 (2) (a) 11., Stats., authorizes the department to (1) establish criteria for certification of providers of Medical Assistance, (2) certify providers who meet certification criteria, and (3) promulgate rules to implement that subdivision.
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. Related statute or rule
Plain language analysis
Section 49.46 (2) (bh), Stats., which was created by 2021 Wis. Act 98 (“Act 98”), directs the department to provide reimbursement for services that are reimbursable under s. 49.46 and provided by a licensed pharmacist within the scope of his or her license or performed under s. 450.033, Stats. Section 450.033, Stats., permits a pharmacist to “perform any patient care services delegated to the pharmacist by the physician . . . .”
The Department currently does not have any policies in place to certify pharmacists rendering delegated patient care services to an MA recipient, or to permit reimbursement for those services. In order to comply with Act 98, chs. DHS 105 and 107 therefore must be amended to permit certification of, and reimbursement to, pharmacists providing services that are reimbursable under MA and provided within the scope of his or her license or are services performed under s. 450.033. Section DHS 105.115 will be created to permit this certification of pharmacists as MA providers and identify applicable documentation regarding delegated services that are available for the department to review. Section DHS 107.067 will be created so the MA program will reimburse pharmacists for services rendered for MA recipients. The proposed rule will amend s. DHS 107.10 (1) to include licensed pharmacists prescribing in accordance with their license and s. 450.033, Stats., to the list of individuals who can prescribe drugs and drug products covered under MA. The proposed rule creates s. DHS 107.08 (4) (d) 12m. to identify pharmacist services as professional services that are not covered as part of a hospital inpatient claim but billed by an appropriately certified MA provider. Finally, the proposed rule will reformat the subunits in s. DHS 107.08 (4) (d) for consistency with the Administrative Rules Procedures Manual.
Summary of, and comparison with, existing or proposed federal regulations
42 CFR 440.60 (a) “Medical care or any other type remedial care provided by licensed practitioners” means any medical or remedial care or services, other than physicians' services, provided by licensed practitioners within the scope of practice as defined under State law.
42 CFR s. 482.25 (b) Standard: Delivery of services. In order to provide patient safety, drugs and biologicals must be controlled and distributed in accordance with applicable standards of practice, consistent with Federal and State law. Comparison with rules in adjacent states
Illinois:
As of August 25, 2022, the state has legislation related to pharmacy practices under Ch. 111, par. 4121 and 68 Ill. Admin. Code Part 330. Pharmacy practices are allowed to dispense medicines and drugs as prescribed as well as administer vaccines and the administration of injections. But, in Chapter I, Section 140.441 Subchapter d, the Medical Assistance program excludes vaccine and administration of injections as not reimbursable and excluded from coverage. Iowa:
As of August 25, 2022, the state has rules related to pharmacy services under IAC ch. 39, 657 IAC part 39.1 – 39.16. This includes 39.8(1) and 39.8 (2) Vaccine administration and Medication administration. In addition, in IAC ch. 78, IAC part 441—78.42(249A) the Medicaid program reimburses when the authorized pharmacist providing the vaccine meets all Iowa board of pharmacy expanded practice standards and Medicaid requirements, payment will be made for the following: Vaccines administered to children, Vaccines administered to adults. Michigan:
There do not appear to be regulations in Michigan relating to reimbursement of pharmacy services.
Minnesota:
As of August 25, 2022, under Minn. Admin. Code 9505.0340 payment limitations under pharmacy services are described. "Pharmacy service" means the dispensing of drugs under Minnesota Statutes, chapter 151 or by a physician under subpart 2, item B. Minnesota does not address services outside the dispensing of drugs for pharmacists. Summary of factual data and analytical methodologies
The department relied on requirements set forth in s. 49.46 (bh), Stats. Analysis and supporting documents used to determine effect on small business
The department published a solicitation in the Administrative Register from September 18, 2023 to October 16, 2023, in which it requested comments on the economic impact of the proposed rule.
Effect on small business
The proposed rule is anticipated to have moderate economic impact on small businesses.
Agency contact person
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
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 105.155 is created to read:
DHS 105.155 Pharmacists.
(1) For MA certification, a pharmacist must be licensed under s. 450.03, Stats. (2) When a pharmacist performs services under a delegation agreement in accordance with s. 450.033, Stats., all of the following shall be documented and available for review by the department: (a) The name and license number of any physician who is delegating services to the pharmacist.
(b) The name and license number of the pharmacist who is entering into the agreement.
(c) The specific timeframe, not to exceed three years, for which the agreement is in effect.
(d) The patient or groups of patients eligible to receive delegated services under the agreement, including any patient inclusion or exclusion criteria.
(e) The delegated services that the pharmacist may perform.
(f) The process for the physician or designee of the physician to monitor compliance with the delegation agreement by the pharmacist.
(g) The process for how the delegated services provided by the pharmacist will be documented or included in the patient’s health record.
(h) The signature and date of any physician delegating services.
(i) The signature and date of the pharmacist entering into the agreement.
SECTION 2. DHS 107.067 is created to read:
DHS 107.067 Pharmacist Services.
(1) Covered services. Pharmacist services covered by the MA program are any medically necessary services provided to a recipient, that are delivered by a licensed pharmacist when one of the following apply:
