DepartmenT of Health Services Office of Legal Counsel | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
_Hlk146617275The Wisconsin Department of Health Services proposes an order to: repeal DHS 36.03 (15) (Note), 36.19 (1) (c), 61.021 (5) (a), 62.07 (5) (d) 1., 62.07 (5) (d) 3., 92.04 (2) (e) (Note) 96, 103.06 (4) (b) 1., (7) (a) 4., 103.063, 103.065, 107.10 (1) (Note 2), 107.113 (5) (e), 118 Appendix A rows 2. (m) and 11. (z), 124.06, 129.04 (3) (a) 1. to 3., 133.05 (2), 163.10 (8) (c) 5. and (Note), 252.02 (13), (25) (Note), 252.04 (1) (Note), 252.09 (2) (d) (Note), 252.10 (1), 252.11(1) (a) (Note) 252.25 (2); renumber DHS 60.01 (10) (a), 75.14 (6) (b) 1. to 7.; renumber and amend DHS 103.06 (7) (a) 1. to 3., 107.13 (1) (b) 8. b., 109.31 (1), 129.04 (3) (a) (intro.), 252.02 (15), 252.11 (1) (b); consolidate, renumber, and amend DHS 61.021 (5) (intro.) and (b), 75.14 (6) (a) and (b) (intro.), 103.06 (4) (b) (intro.) and 2., (7) (title) and (a) (intro.), 107.13 (1) (b) 8. (title) and (a); amend DHS 34.02 (14), 34.03 (2) (b) 2., 34.21 (3) (b) 18., 35.03 (1m) and (Note), 35.03 (5) (a), 36.03 (8), 36.03 (15), 36.03 (30) and (31), 36.10 (2) (g) 8. a., 9., DHS 36.14 (intro.) and (3) (b) (Note), 36.16 (3) (b), 36.18 (3) (f) 7m., 40.03 (38), 61.11, 61.12, 62.03 (1), (12) (a), (17), (21), (22), and (24), 62.05 (2) (a) 1. a. and b., 62.06 (1), (2), and (4), 62.07 (1) (h), (5) (a) 1. c., 2. c., and (b) 1. to 3., (5) (d) 2., (6) (c) 2. (intro.) and a., 63.06 (2) (c) and (4) (a) 9., 75.03 (33), 75.07 (2) (e), 75.14 (4) 75.14 (4) (a) 3. b. and (b), 75.15 (5) (b), 75.24 (11) (d) 6. (intro.), 75.48 (2) (table) row (j), 75.60 (6) (b), 90.11 (6) (a) 7., 92.01 (1), 92.02 (7), (13) and (16), 92.03 (1) (g), 92.04 (11) (b) and (d), and (15) (b) 1., 92.05 (1) (c)., 92.06 (2) and (Note), 92.07 (Note), 94.01 (1) and (2) (a), 94.02 (24) and (45), 94.03 (1) (intro.), 94.04 (5) (Note), 94.05 (4) (b) (Note), 94.40 (1), 94.42 (5) (a), 94.43 (1) (b), 94.44 (6) (b) 1. a. and b., 97.01, 97.04 (2) (a) and (b), 105.05 (2), 105.16 (1), 105.22 (3), 107.02 (2m) (tile) and (a) (intro.), 107.08 (4) (a) 6., 107.09 (2) (intro.) and (4) (a) 1. a. to c. and 2. a. to e., (4) (e) 1. to 3., (f) 2. a. and b., (g) 1. a., 2. (intro.) and a. and b., 3. (intro.) and a. to e., and 4., (j) 1. a. to f., (m) (title), 1., 2. (intro). and a. and b., (n) 1. (intro.), a., and 3., (q) (title) and 1. to 4., (r) (intro.) and 1., 107.10 (3) (e), 107.11 (2m) (b) and (d), and (4) (e), (6) (a) and (b) 1, 2., 3. (intro.) and a. to d., 4., and 5. a., 107.112 (1) (a), (3) (b) (intro.), 1. to 3., and (c), 107.113 (1) (a), 107.122 (1) (intro.), 107.13 (1) (a), (b) 1. and 2. (intro.) and a., 3. a. and b., 5. d., 6. a., 7. (title) and a., (f) 5., (3) (title), (a) 1. to 6., and (c) 1. and 3., (4) (a) (intro.), (b) 1. a. to d., and (d) 1. to 7., (6) (a) (intro.), 107.16 (1) (a), (3) (a) (intro.) and 1. and 2., 107.17 (1) (intro.), (3) (a) (intro.) and 1. and 2., 107.18 (1) (a), (3) (a) (intro.), 1. and 2., 107.19 (1) (intro.), (3) (a) (intro.), 1. and 2., 107.21 (1) (a), DHS 107.24 (2) (a) 1. and 2., (b), (3) (h) 1. (intro.), and (4) (c) 2. (intro.), 107.25 (1) and (2) (a), 118 Appendix A rows 6. (c) (1), 7. (e) 1., 8. (i) (l), 9. (i) (l), 10. (b) (18), 11. (xm), 127.02 (3), 129.03 (30) (a) 2. and (30m), DHS 129.04 (3) (intro.), 129.08 (4), 133.02 (9m), 133.07 (1), 134.83 (7) (b) (intro.), (8) (b), 163.12 (3) (a) 1. e., 252.01, 252.02 (1), (3), (5), (6), (8), (9), (11) (12), (17), (18), (20), 252.03, 252.04 (1), 252.06, 252.07, 252.08 (1), 252.11 (intro.), (1) (a) and (b), (3), 252.12 (1) and (2) (a), 253.13 (1) and (2), 252.15 (2) (d), 252.16 (1) (Note) and (2), 252.19 (1) (a) and (b), and (2), 252.20, 252.23, 252.25 (intro.) and (1), (3) and (4), 254.04 (1) (d) 2., 254.07 (1); repeal and recreate DHS 36.10 (2) (g) 7. and 20., 36.17 (5) (am) 3., 107.24 (1), 252.02 (10); create DHS 36.03 (10g), 60.01 (1) (a), 101.03 (137m, 104.01 (12) (a) 1. dm., 107.13 (1) (b) 8. a. to f., 107.16 (1) (b) 40., 109.31 (1) (a) to (g), (1m), 252.02 (15) (a) and (b), (24m), 252.11 (1) (b) 1. to 3., (c); relating to the 2023 biennial review of rules under s. 227.29, Stats. RULE SUMMARY
Statutes interpreted
Statutory authority
In accordance with s. 227.11(2), Stats., the following rule chapters are expressly authorized by the applicable statutes cited therein: Explanation of agency authority
Under s. 227.29 (1) (a) to (e), Stats., the Department is required to complete an agency review of rules and enactments on a biennial basis and make changes to: unauthorized rules, as defined in s. 227.26 (4) (a), together with a description of the legislation that eliminated the agency's authority to promulgate any such rule; rules for which the authority to promulgate has been restricted, together with a description of the legislation that restricted that authority; rules that are obsolete or that have been rendered unnecessary, together with a description of why those rules are obsolete or have been rendered unnecessary; rules that are duplicative of, superseded by, or in conflict with another rule, a state statute, a federal statute or regulation, or a ruling of a court of competent jurisdiction, together with a citation to or the text of any such statute, regulation, or ruling; or rules that the agency determines are economically burdensome. _Hlk104450241Explanation of agency authority for each rule chapter in the proposed rules is as follows: _Hlk174447270DHS 10: Sections 46.286 (4) to (7), 46.287 (2) (a) 1. (intro.), 46.288, 50.02 (2) (d) direct the Department to implement rules for the family care, which is a Medicaid long-term care program that helps families arrange for appropriate long-term care services for family members for adults with physical or developmental disabilities. The rules include financial eligibility criteria and cost sharing requirements DHS 34: Section 51.42 (7) (b), Stats., directs the Department to establish standards and procedures for certification of county and multi-county emergency mental health service programs. Section 51.42 (1) (b), Stats., requires every county to provide emergency mental health services to persons within the county in need of those services. The persons who need those services are persons who are experiencing a mental health crisis or are in a situation likely to turn into a mental health crisis if supportive services are not provided. A county may comply with s. 51.42 (1) (b), Stats., by operating or contracting for the operation of an emergency mental health program certified under this subchapter and either subch. II or III of ch. DHS 34. DHS 35: Sections 49.45 (2) (a) 11., 51.04, 51.42 (7) (b) 11., Stats., direct the Department to establish minimum standards for certification of outpatient mental health clinics that receive reimbursement for outpatient mental health services from the Wisconsin medical assistance and BadgerCare Plus programs or private insurance under s. 632.89 (2) (d), Stats., or that utilize federal community mental health services block grant funds or receive state community aids funds under s. 51.423 (2), Stats. DHS 36: Sections 49.45 (30e) (b) and 51.42 (7) (b), Stats., direct the Department to establish the scope of psychosocial service programs, standards for certification and criteria for determining the need for psychosocial rehabilitation services, and other conditions of coverage of community based psychosocial services under the medical assistance program pursuant to ss. 49.45 (30e) and 49.46 (2) (b) 6. Lm., Stats. Section 51.04, Stats., requires a treatment facility to apply for certification in order to be reimbursed under MA, and allows the Department to charge an annual fee for certification. DHS 40: Section 51.42 (7) (b), Stats., directs the Department to promulgate rules governing the provision of community mental health services. The Department determines and monitors standards and requirements to administer services for community mental health, developmental disabilities, alcoholism, and drug abuse. DHS 60: Sections 46.03(1) and (2), Stats., directs the Department to “maintain and govern” state treatment institution property, and to “[s]upervise, manage, preserve and care for the buildings, grounds and other property pertaining to said institutions.” In accordance with 227.11 (2), Stats., the Department determined that rules regarding traffic and conduct on statement institution property were necessary to effectuate ss. 46.03 (1) and (2), Stats. DHS 61: Section 51.437 (16), Stats., provides that rules promulgated under s. 51.42 (7) (b) apply to services provided through by boards established under s. 51.42, 51.437, or 46.23, Stats, and services provided by agencies under contract with the boards. In accordance with s. 227.11 (2), Stats., the department interpreted ss. 51.42, 51.437, and 51.45 to require rules to establish a basis to assure adequate services were provided. DHS 62: Sections 343.30 (1q) (c) 2. and 343.305 (10) (c) 2., Stats., direct the Department to establish rules containing standards for assessment and driver safety plans for persons who operate a motor vehicle while under the influence of intoxicants or other drugs and who voluntarily, or by court order or by order of the Wisconsin department of transportation undergo an intoxicated driver assessment and complete a driver safety plan. DHS 63: Sections 51.42 (7) (b) and 51.421 (3) (a) and (c) authorize the Department to establish rules for community support programs under s. 51.421, Stats., that are for chronically mentally ill persons living in the community. DHS 75: Section 51.42 (7) (b), Stats., directs the Department to promulgate rules which govern the structure and procedures to administer community alcoholism, substance use disorder, and mental health services, and to “prescribe any such other standards and requirements as may be necessary to carry out the purposes of this section,” and provide “a continuum of treatment” to Wisconsin residents in accordance with s. 51.45 (1) and (3), Stats. Section 51.4224, Stats., requires that the Department, through the state methadone authority, approve and certify opioid treatment facilities, and the Department determined that rules were necessary to effectuate that section. Section 51.45 (8) and (9), Stats., require the Department to establish minimum health and modes of treatment standards for treatment facilities to be approved as a public or private treatment facility, and to “promulgate rules for acceptance of persons into the treatment program, considering available treatment resources and facilities, for the purpose of early and effective treatment of alcoholics, persons who are drug dependent, and intoxicated persons.” The Department interpreted s. 46.973 (2) (c), Stats., which directs the Department to develop “standards and provision of consultation for local drug dependence and drug abuse programs” to require rules. DHS 90: Section 51.44 (5), Stats., requires that the Department promulgate rules to implement a statewide birth-to-3 program for children with significant delays in physical development, cognition, communication, social and emotional development, adaptive behavior and self-help skills. DHS 92: Section 51.30 (12), Stats., directs the Department to promulgate rules to implement s. 51.30, Stats., relating to records of persons who are receiving, or have received, treatment at any time r for mental illness, developmental disabilities, or behavioral health from the Department, a board established under s. 46.23, 51.42 or 51.437, Stats., or treatment facilities and persons providing services under contract with the Department. DHS 94: Section 51.61 (5) (b) and (9), Stats., direct the Department to establish, by rule, standards for grievances and rights for individuals receiving services for mental illness, developmental disabilities, behavioral health, including any individual who is: (1) admitted to a treatment facility in accordance with ch. 48, 51 or 55, Stats.; (2) detained, committed or placed under ch. 48, 51, 55, 971, 975 or 980, Stats.; (3) transferred to a treatment facility under s. 51.35 (3) or 51.37; or (4) receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437, Stats., or in a private treatment facility. DHS 96: Section 302.11 (8), Stats., authorizes the Department to promulgate rules establishing guidelines and criteria relating to waiver by forensic patients of good time or entitlement to mandatory release for individuals committed under ch. 975, Stats. DHS 97: Section 46.056 Stats., authorizes the Department to establish the Wisconsin Resource Center (“WRC”) and to administer WRC as a correctional institution. In accordance with s. 227.11 (2) (a), Stats., the Department promulgated rules for complaint procedures for inmates at WRC in order to effectuate the purpose of a statute. DHS 101–108: Section 49.45 (10) Stats., permits the Department to establish rules for the purpose of administering medical assistance in Wisconsin. Eligibility for BadgerCare under s. 49.665, Stats., was superseded by BadgerCare Plus under s. 49.471(3) (a), Stats. Section 49.471, Stats., includes requirements for implementing BadgerCare Plus, and s. (12) (a) 1., Stats., permits the Department to “promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.” DHS 109: Section 49.688, Stats., directs the Department to implement the SeniorCare program that is designed to provide prescription drug assistance for Wisconsinites aged 65 years or older. Subsections (3m), (4), and (9) direct the Department to create rules for administering the SeniorCare program. Subsections (7) and (10m) allow the Department to apply the same utilization and cost control procedures that apply under rules promulgated by the department for MA under subch. IV of ch. 49, Stats. DHS 118: Section 256.25 (2), Stats., directs the Department to promulgate rules to develop and implement a statewide trauma care system. DHS 124: Section 50.36 (1), Stats., requires that the Department use and enforce the conditions for Medicare participation for hospitals as the minimum standards that apply to hospitals, and permits the Department to promulgate, adopt, amend, and enforce additional rules and standards for the construction, maintenance, and operation of hospitals that are necessary to provide safe and adequate care and treatment of hospital patients and to protect the health and safety of patients and employees. DHS 127: Section 50.51 (2), Stats., directs the Department to establish rules for the construction, maintenance, and operation of rural medical centers.
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