DepartmenT of Health Services Office of Legal Counsel | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services proposes an order to amend DHS 13.03 (11) (Note); and create DHS 31, 105.529, and 107.13 (9), related to crisis urgent care and observation facilities.
RULE SUMMARY
Statutes interpreted
Statutory authority
Explanation of agency authority
Section 51.036 (4) authorizes the Department to promulgate rules to implement s. 51.036, Stats. Broadly, s. 51.036, Stats., relates to crisis urgent care and observation facilities (“CCFs”), which are a new type of treatment facility that admits an individual to prevent, de-escalate, or treat an individual in crisis due to behavioral health, mental health, or substance use issues. _Hlk188965462Subsection (4) of the statutes specifically directs the Department to establish rules regarding all of the following: 1(1) A grant program in accordance with s. 51.036 (2), Stats. (2) Requirements for a CCFs awarded a grant under 51.036 (2) to match those funds with a non-state, federal, or third-party revenue source. See also s. 51.036 (2) (c) 10., Stats. (3) Requirements for admitting, holding, and discharging individuals held on emergency detentions under s. 51.15, Stats. (4) Minimum security requirements for CCFs.
(5) The range of beds allowed in a CCF.
(6) Policies and criteria that a CCF must have regarding emergency detentions, including when law enforcement or a person authorized to transport may drop an individual off at a CCF.
(7) Policies for interfacility transfers initiated at a CCF.
(8) Procedures for communicating bed availability at a CCF before an individual is transported there.
(9) Policies for coordination between a CCF and a facility established or operated with settlement funds from the national opiate litigation under s. 165.12, Stats. (10) Procedures for coordinating continuity of care between a CCF and a hub-and-spoke home health pilot program or any other appropriate transition facility for any patient treated at a CCF for 5 or fewer days.
(11) Policies and procedures for admitting adults and, if applicable, youth at a CCF, including requirements that youth be treated in a separate part of the facility from adults.
(12) Staffing level requirements at a CCF.
(13) Requirements to define the population served at a specific CCF, including minimum age requirements.
When certified in accordance with s. 51.036, Stats., these facilities meet the definition of a “crisis intervention service” under s. 49.45 (41) (a) 1., Stats., and certain services provided in a certified CCF are reimbursable under Medical Assistance (“MA”). See s. 49.46 (2) (b) 15., Stats. As the single state agency for administering MA in Wisconsin, the Department is authorized under s. 49.45 (2) (a) 11. to create rules establishing criteria for certification of MA providers, setting conditions of participation and reimbursement, and promulgating rules “consistent with its duties in administering [MA].” Section 49.45 (10), Stats., further authorizes the Department to “promulgate such rules as are consistent with its duties in administering [MA]. In accordance with the grants of authority under ss. 51.036 (4), 49.45 (2) (a) 11. and (10), Stats., the Department has determined that rules in addition to the specific items listed under s. 51.036 (4) (a) to (m), Stats., rules are necessary to implement s. 51.036, Stats., and “establish a certification process for [CCFs],” under s. 51.036 (2) (a), Stats. Additionally, s. 51.04, Stats., provides that the Department “shall annually charge a certification fee for each certification [of a treatment facility].” A CCF meets the definition of a “treatment facility” under s. 51.01 (19), Stats. Finally, s. 51.036 (2) (a), Stats., provides that the Department may limit the number of CCFs certified and directs the Department to include statewide geographic consideration[s] in its evaluation of applications for CCF certifications. Section 51.036 (2) (c), Stats., includes specific items a CCF application must contain. Rules are required to codify these directives from the Legislature. Related statute or rule
Plain language analysis
The proposed rules seek to create a mechanism for regulating CCFs in accordance with s. 51.036, Stats. CCFs are a new facility type to serve adults and may serve youth who are experiencing a crisis related to behavioral, mental health, or substance use challenges. CCFs provide facility-based crisis intervention services 24 hours a day, seven days a week for both voluntary persons arriving as walk-ins and persons subject to emergency detention under s. 51.15, Stats. Crisis services provided at a CCF can be accessed voluntarily with or without a referral; involuntary crisis services under an emergency detention require county authorization prior to admission. Services are delivered by a multi-disciplinary team and are designed to identify and de-escalate the presenting crisis and reduce associated symptoms. A stay at a CCF is intended to be short term and not exceed five days. Crisis services available are provided to persons to the extent and duration they need them. CCFs collaborate with county emergency mental health programs, law enforcement, outpatient and inpatient providers, and other related partners to coordinate care for persons needing services. A CCF is not regulated as a hospital, except to the extent the facility is otherwise required due to the facility's licensure or certification for other services or purposes. Section 51.036, Stats. does not prohibit, limit, or otherwise interfere with services provided by a county or a hospital or other facility consistent with the facility's existing licensure or certification, whether the facility is publicly or privately funded. Section 51.036, Stats., was created by 2023 Wis. Act 249 to help address a statewide lack of accessible and urgent facility-based care for persons experiencing a crisis related to behavioral, mental health, or substance use. Due to the shortage, many individuals in crisis either do not receive adequate care, or they are transported to WMHI, where they may receive more restrictive care than necessary. Adding CCFs as an available facility to accept involuntary and voluntary admissions will help decrease time and resources spent by law enforcement and other emergency personnel who coordinate placement and care for persons in crisis. Act 249 was supported by mental health providers and related community partners as an appropriate and additional option to address gaps in the current crisis continuum. As a newly created facility type, there are no existing rules for CCFs. The proposed rules seek to create ch. DHS 31, will include all of the following in relation to CCFs: (1) general certification requirements.
(2) ongoing certification compliance requirements, including annual treatment facility certification fees under s. 51.04, Stats. (3) program requirements related to staffing, admissions, transfers, services, and client rights.
(4) physical building requirements.
(5) grant program requirements.
_Hlk190684003In accordance with s. 51.036 (2) (a), Stats., the Department initially expects to certify 1 or 2 CCFs across the state. The geographic location of initial applicants will be considered as it relates to statewide need and resource availability. Certifications will be prioritized for applicants located at least 100 miles from WMHI and those in the state defined western region. Because services rendered at a certified CCF may be reimbursed under MA, the proposed rules would also create s. DHS 105.529 to require that a facility be certified under ch. DHS 31 as a CCF in order to be reimbursed under MA. Additionally, the proposed rules seek to create s. DHS 107.13 (9) to identify covered services provided in a certified CCF. 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 proposed rule.
Comparison with rules in adjacent states
Illinois:
Illinois certifies triage centers and crisis stabilization units through Ill. Admin. Code tit. 77 p. 380. Under section 380.300 of these rules, “triage centers shall provide an immediate assessment of consumers who present in psychiatric distress, as an alternative to emergency room treatment or hospitalization, and shall connect the consumer with community-based services and treatment when considered necessary”. Under section 380.310 of these rules, crisis stabilization units “shall provide safety, structure and the support necessary, including peer support, to help a consumer to stabilize a psychiatric episode”. Triage centers are similar in that they are intended to provide immediate assessment of clients in crisis as an alternative to an emergency room or hospitalization and provide connections and referrals to other community-based treatment services. Triage centers are different in that they do not accept law enforcement referrals or involuntary admissions and have a maximum length of stay of 23 hours. Crisis stabilization units are similar to CCFS in that they are intended to assist in stabilizing persons with acute psychiatric symptoms. Crisis stabilization units are different from CCFs in that they do not accept involuntary persons and have a maximum length of stay of 21 days. Iowa:
Iowa certifies crisis stabilization residential services through Iowa Admin. Code r. 441-24.39 (225C). Under these rules, crisis stabilization residential services are short-term services provided in facility-based settings of no more than 16 beds. The goal of these facilities is to stabilize and reintegrate the individual back into the community. Crisis stabilization residential services are similar in that the intended length of stay is less than five days. Crisis stabilization residential services are different from CCFs because that they do not admit involuntary individuals.
Michigan:
Michigan certifies crisis stabilization units under their mental health code, specifically Mich. Admin. Code r. 330.1971. Under these rules, crisis stabilization units are crisis receiving and stabilization facilities that provide an alternative to emergency departments for individuals who can be stabilized typically within several hours but in no longer than 72 hours. Crisis stabilization units are similar to CCFs in that they accept all referrals and do not require medical clearance prior to admission, having the capacity to carry out limited medical evaluative functions. Crisis stabilization units are different from CCFs in that services may be provided for a period of up to 72 hours, after which the individual must be provided with the clinically appropriate level of care.
