DepartmenT of Health Services Office of Legal Counsel F-02318 (10/2021) | 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 create DHS 72, 105.259, and 107.13 (8), relating to peer recovery service providers and reimbursement under the Medical Assistance program.
RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
The Department is the single state agency for administering and supervising Wisconsin’s Medicaid (“MA”) program, per 42 CFR 431.10 and the MA State Plan. Under s. 49.45 (2) (a) 11., Stats., the Department’s obligation in administering MA includes establishing criteria for certification of MA providers, setting for the conditions of participation and reimbursement, and promulgating rules to implement those requirements. Section 49.45 (10), Stats., further authorizes the Department to “promulgate such rules as are consistent with its duties in administering [MA],” and s. 49.471 (12), Stats., relates to the BadgerCare Plus program and permits the Department to “promulgate any rules necessary for and consistent with its administrative responsibilities” in overseeing the MA program. 2019 Wis. Act 122 (hereinafter “Act 122”) created ss. 49.45 (30j) and 49.46 (2) (b) 14p., which collectively directed the Department to certify “peer recovery coaches” (hereinafter “PRC” or “PRCs”) and provide MA reimbursement to peer recovery coaches who do all of the following: (1) Provide services to recipients who are in treatment for recovery from mental illness or a substance use disorder.
(2) Provide services under the supervision of a competent mental health professional.
(3) Provide recovery services in accordance with the recipient’s individual treatment plan.
(4) Complete statutorily identified training requirements. See s. 49.45 (30j) (b) 4, Stats. Act 122 directed the Department to establish the training requirements under s. 49.45 (30j) (b) 4. “after consulting with members of the recovery community” and to request a waiver of any Federal Medicaid law or regulations in order to provide reimbursement for certified peer recovery support services. In addition to promulgating the training requirements provided in s. 49.45 (30j) (b) 4., Stats., the Department has determined, after consulting with members of the recovery community, that rulemaking establishing additional certification criteria for peer recovery coaches is necessary to secure Federal Medicaid reimbursement for PRC services. This interpretation is consistent with The Centers for Medicare & Medicaid Services’ (“CMS”) State Medicaid Director Letter #07-011 (SMDL 07-011 (hereinafter “SMDL #07-011”), which provides guidance on supervision, care coordination, and training and credentialing in the delivery of peer support services. The Department, in accordance with s. 227.11 (2) (a), Stats., has also interpreted s. 46.482, Stats. to require rulemaking to effectuate the intent to the statute. The Department has determined that rules are necessary to establish and maintain a program to facilitate overdose treatment providers to: (1) use PRCs to assist in the provision of treatment; (2) provide access to medications to reverse overdose; and (3) coordinate and continue care and treatment through an integrated model of care following an overdose—which includes assessment, follow-up services, transportation, and referrals to social services and community organizations. These rules are necessary because under s. 51.04, Stats., the Department does not certify or license individual professionals for reimbursement under MA; it certifies programs, facilities, and services. This includes treatment facilities as defined in s. 51.01 (19), Stats., which the department certifies for MA reimbursement under s. 51.04, Stats. Because PRCs are not separately licensed by the Department of Safety and Professional Services, they cannot operate as independent practitioners and must have connection to a certified program or agency to be eligible for Medicaid reimbursement. Guidance from CMS states that peer support services should be provided as a component of a comprehensive mental health or substance use service, and coordinated within the context of a comprehensive individualized plan of care. SMDL #07-011. Peer providers on the advisory committee for the proposed rule confirmed that they do not create comprehensive plans of care. Therefore, rules to certify and reimburse under MA treatment facilities that offer peer recovery coach services as a component of comprehensive mental health and substance use services are necessary and permitted under s. 51.04, Stats. Additionally, the Department has determined that the policies and procedures regarding the provision of medications and referral to evidence-based treatment services for patients with substance use disorder authorized under s. 46.482 (3), Stats., should be established as rules to affirm compliance with s. 51.61 (5) (a), Stats., which requires that the department shall establish procedures to assure protection of patients’ rights guaranteed under Chapter 51 of the Wisconsin Statutes. Related statute or rule
The following statutes or rules relate to certification of peer recovery coaches and overdose treatment providers and reimbursement of peer recovery support services:
Section 1905 (a) (13) and 1915(b) and (c) of the Social Security Act (both of which are interpreted by SMDL #07-011)
Section 51.04, Stats. Plain language analysis
Section 49.45 (30j), Stats., which created in Act 122, directs the Department to certify PRCs for reimbursement under MA. There are no existing rules related to certification standards for peer recovery coaches, so the department intends to promulgate rules to effectuate Act 122 by creating a new administrative rule chapter. The rules specify training requirements related to the provision of services by a PRC, supervision by a competent mental health professional, training requirements, and documentation to be certified for reimbursement under MA. Notably, and based on extensive consultation with the advisory committee, the proposed rules would provide for all of the following:
1. Specifying which services (as indicated in an individual’s treatment goals and service plan) a PRC may provide and seek reimbursement for.
2. Specifying that, in addition to the 40 hours of training required under s. 49.45 (30j) (b) 4., a PRC should complete 24 hours of paid or volunteer experience related to advocacy, mentoring and education, recovery and wellness support, or ethical responsibility.
3. Co-supervision by a PRC supervisor (who is an experienced PRC with additional training specified in the rule) working under the direction of a competent mental health professional. Doing so will increase access to PRCs statewide by reducing the administrative strain on supervising competent mental health professionals while still providing the requisite oversight of the competent mental health professional to ensure PRC services are coordinated within the context of a comprehensive, individualized plan of care. The proposed rules prescribe the minimum amount of time that a competent mental health professional working with a co- supervisor must provide supervision to a PRC directly in order to meet the supervision requirements in the rule.
The proposed rules also establish a new class of overdose treatment and peer recovery service provider in which PRC services may be provided. These providers are treatment facilities under s. 51.04, Stats., and must be certified for reimbursement under MA. The proposed rule seeks to establish all of the following:
1. Certification application requirements, including durational and biennial renewal requirements.
2. Program statement requirements.
3. Required policies and procedures.
4. General qualification requirements.
5. Orientation, training, and continuing education requirements.
6. Participant rights.
7. Service records and discharge summary requirements.
Finally, the Department proposes to add provisions to chapter DHS 105 to include providers certified under ch. DHS 72 as appropriate for MA reimbursement, and to amend ch. DHS 107 to identify covered services provided under ch. DHS 72. Summary of, and comparison with, existing or proposed federal regulations
Section 1905(a)(13) of the Social Security Act provides for Medical Assistance program coverage of “other diagnostic, screening, preventive, and rehabilitative services,” such as overdose treatment services. Additionally, CMS has identified mental health and substance use peer support providers, such as peer recovery coach providers, as allowable providers in SMDL #07-011.
Comparison with rules in adjacent states
Illinois:
Illinois certifies peer recovery support specialists through the Illinois Certification Board, Inc., a professional organization that includes the Illinois Alcohol and Other Drug Abuse Professional Certification Association, Inc. While they have training and certification requirements, these are not based on statute or administrative rule. Instead, the certified peer recovery specialist competencies include the knowledge and skill base which is defined in the “Peer Recovery Credential, Role Delineation Study, and Final Report,” for IC&RC, dated January 2013 and completed by the Schroeder Measurement Technologies, Inc.
The International Certification and Reciprocity Consortium (“IC&RC”) is an international non-profit organization that promotes public protection by developing internationally recognized credentials and examinations for prevention, substance use disorder treatment, and recovery professionals, including peer recovery specialists.
Iowa:
Iowa certifies peer recovery specialists through the Iowa Board of Certification, which is very similar to the Illinois system. The Iowa Board of Certification (IBC) credentials prevention and treatment professionals in addictions and other behavioral health fields by promoting adherence to competency and ethical standards. These standards are based on professional standards based on IC&RC and not by any statute or administrative rule.
Michigan:
Michigan certifies recovery coaches through their Department of Health and Human Services, based on the IC&RC Peer Recovery Credentials and the MDHHS Peer Recovery Coach training requirements. Requirements are not based on statute or administrative rule.
Minnesota:
Like the above states, Minnesota certifies its peer recovery specialists through its MN state board responsible for alcohol and other drug certifications. Its policies and tests are based on IC&RC standards mentioned above, and they even have a state reciprocity certification. Requirements are not based in statute or administrative rule.
Summary of factual data and analytical methodologies
Information about other states was found in the State-by-State Directory of Peer Recovery Coaching Training and Certification Programs published by the Substance Abuse and Mental Health Services Administration (SAMHSA), along with each state’s certification board website.
Analysis and supporting documents used to determine effect on small business
According to the U.S. Small Business Administration, a small business is defined as a for-profit business of any legal structure. Section 227.114 (1) defines a small business as “a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales or less than $5,000,000.” Based on information gathered from peer providers during meetings of the advisory committee organizations conducting this work are not-for-profit or have more than 25 employees and would not meet the definition of a small business as defined by the U.S. Small Business Administration or in s.227.114 (1), Stats. It is therefore anticipated that the proposed rules will have minimal impact on small businesses. Effect on small business
Based on the foregoing analysis, the proposed rules are anticipated to have little to no economic impact on small businesses.
Agency contact person
Sarah Coyle, Dept. of Health Services, Division of Care and Treatment Services, 1 W. Wilson St., Room 850, Madison, WI 53716
Statement on quality of agency data
See summary of factual data and analytical methodologies.
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 72 is created to read:
OVERDOSE TREATMENT PROVIDER CERTIFICATION AND COVERED SERVICES
Subchapter I – General Provisions
DHS 72.01 Authority and purpose.
