Health and Family Services
(Medical Assistance, Chs.
100-]
NOTICE IS HEREBY GIVEN that pursuant to ss.
49.45 (2) (a) 11. b., and
(10) and
227.11 (2), Stats., interpreting ss.
49.45 (2) (a) 11. a., and
(10),
49.46 (2) (a) 2., and
(b) 1., Stats., the Department of Health and Family Services will hold public hearings to consider the repeal of s.
HFS 107.07 (2) (c); the renumbering of s.
HFS 105.06; the amendment of ss.
HFS 105.01 (5) (a) 1.,
105.06 (title),
107.07 (2) (a) (intro.) 1. to
4. and
(b); the repeal and recreation of s.
HFS 107.07 (1),
(3) and
(4); and the creation of ss.
HFS 105.06 (1) (title) and
(2),
107.07 (1m),
(2) (a) 5. to
8. and
(4m), relating to coverage of dental services under the Medical Assistance program, and affecting small businesses.
Hearing Information
The public hearings will be held:
Wednesday, July 13, 2005, 10:00 a.m. to 12:00 noon
1300 W. Clairemont Ave., Rooms 158/185
Eau Claire, WI
Thursday, July 14, 2005, 10:00 a.m. to 12:00 noon
1 West Wilson Street, Room B-145
Madison, WI
Friday, July 15, 2005, 10:00 a.m. to 12:00 noon
141 NW Barstow, Room 15
Waukesha, WI
Tuesday, July 19, 2005, 10:00 a.m. to 12:00 noon
2894 Shawano Ave.
Lake Michigan Community Conference Room
Green Bay, WI
The hearing sites are fully accessible to people with disabilities. If you are hearing or visually impaired, do not speak English, or have circumstances that might make communication at a hearing difficult and if you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number given above at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Written comments may be submitted at the public hearing, or in lieu of attending a public hearing written comments can be submitted by regular mail or email to the contact person listed below. Written comments may also be submitted to the Department using the Wisconsin Administrative Rules Internet website at the web address listed below.
Deadline for Comment Submission
The deadline for submitting comments is 4:30 p.m., on Friday, July 29, 2005.
Analysis Prepared by the Department of Health and Family Services
The proposed order revises the Department's rules for coverage of dental services by the MA program to update dental terminology, accommodate the current national dental procedure codeset, improve the organization of s.
HFS 107.07, substantially reduce the number of services requiring prior authorization, and change the coverage status of several services, including for sealants, and alveoplasty and osteoplasty (2 types of oral surgery).
The removal of alveoplasty and osteoplasty from the non-covered services category to the category of services covered with prior authorization will permit reimbursement of dentists for these services. Currently, only physicians are allowed reimbursement for these surgeries.
In addition, the proposed order revises ss.
HFS 105.01 (5) and
(6), to allow for the individual certification of dental hygienists and describes services that may be reimbursed by Medicaid when provided by Medicaid certified dental hygienists.
Effect on Small Business (Initial Regulatory Flexibility Analysis)
The proposed rules will affect dental hygienists who perform services as independent contractors, and dentists. The Department believes that the proposed rules will have a positive effect on dental hygienists performing services as independent contractors, and dentists. Dental hygienists will enjoy increased opportunities to independently contract their services. Dentists will experience a reduction in paperwork and administrative staff time associated with participation in Wisconsin Medicaid and BadgerCare. The proposed rules do not impose reporting requirements or schedules.
Fiscal Estimate
The Department does not anticipate that the proposed rules will affect local government or private sector costs. The Department does, however, anticipate that the proposed rules will increase costs to the Department. The GPR share of increased costs was calculated at the SFY 2004 blended rate of 36.4%, and based on the following assumptions that have been updated since April 14, 2005, when the original fiscal estimate was submitted, with proposed rules, to the Legislative Council Clearinghouse. The updated fiscal estimate is attached to this notice of hearing.
Assumptions used in Arriving at Fiscal Estimate
Certifying Dental Hygienists as MA Providers
(1)
10 hygienists employed by local health departments, or other allowable practice settings, would certify as Medicaid providers in first year of biennium; 10 additional would begin in second year. (Some additional hygienists currently billing under HealthCheck nursing agency provider numbers could shift to individual certification, but this shift would have no net fiscal effect.)
(2)
Hygienists would treat an average of 16 MA enrolled children per month and 10 MA enrolled adults per month.
(3)
Hygienists would provide an average of 1 evaluation, 2 fluorides, and 4 sealants per MA-enrolled child per year, and an average of 1 evaluation, 4 cleanings, and 4 fluorides per MA-enrolled adult per year.
Revising Prior Authorization for Dental MA Program
(1)
Services where PA was denied, or returned and not resubmitted (estimated to be 50% of returned details) under old rules would be paid under new rules.
(2)
Quantity of services requested on denied or returned and not resubmitted requests is equal to the weighted average of quantity of services requested on approved requests. Services that are requested for multiple years are performed at the maximum allowable number of times per year.
(3)
This estimate does not assume an increase in the number of Medicaid-certified dentists due to the rule change. However, to the extent that this rule change increases the number of dentists participating in Medicaid, the cost of the change would increase.
Long Range Fiscal Implications
Dental Hygienists
(1)
Increased cost of approximately $938,000 AF ($341,000 GPR) in the 2005-2007 biennium, assuming a March 2006 effective date.
(2)
Long-term costs may decline as future disease burden declines due to increased provision of early preventive treatment.
Prior Authorization
(1) Increased cost of approximately $460,000 AF ($168,000 GPR) in the 2005-2007 biennium, assuming a March 2006 effective date.
For More Information
A copy of the full text of the rules and the updated fiscal estimate, and other documents associated with this rulemaking may be obtained, at no charge, from the Wisconsin Administrative Rules website at
http://adminrules.wisconsin.gov. At this website you can also register to receive email notification whenever the Department posts new information about this rulemaking and, during the public comment period, you can submit comments on the rulemaking order electronically and view comments that others have submitted about the rule.
A copy of the full text of the rule and the updated fiscal estimate may also be obtained by contacting the Department's representative listed below:
Andrew Snyder, Dental Policy Analyst
Division of Health Care Financing
Bureau of Fee-for-Service Health Care Benefits
1 West Wilson Street
P.O. Box 309
Madison, WI 53701-0309
(608) 266-9749
snydea@dhfs.state.wi.us
Small Business Regulatory Coordinator:
Rosie Greer
608-266-1279
Notice of Hearing
Insurance
Notice is hereby given that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting ch.
Ins 9, Wis. Adm. Code, relating to defined network and preferred provider plans and may affect small businesses.
Date: July 27, 2005
Time: 1:00 p.m., or as soon thereafter as the matter may be reached
Place: OCI, Room 227, 125 South Webster St 2nd Floor, Madison, WI
Written comments or comments submitted through the Wisconsin Administrative Rule website at:
https://adminrules.wisconsin.gov on the proposed rule will be considered. The deadline for submitting comments is 4:00 p.m. on the 14
th day after the date for the hearing stated in this Notice of Hearing.
Written comments should be sent to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 9
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Analysis Prepared by the Office of the Commissioner of Insurance (OCI)
3. Explanation of the OCI's authority to promulgate the proposed rule under these statutes: The Commissioner of Insurance is authorized to promulgate rules under s.
601.41 and
609.20, Stats. Section
609.20, Stats., permits the Commissioner to promulgate rules relating to preferred provider plans and defined network plans in order to ensure enrollee access to health care services and ensure continuity of health care while recognizing the differences between preferred provider plans and defined network plans.
4. Related Statutes or rules: There are no related statutes or rules.
5. The plain language analysis and summary of the proposed rule: Many of the proposed revisions to sections within s.
Ins 3.67, ch.
Ins 9 and s. Ins 18 are due to a change in terminology. The term “managed care plan" has been replaced with “defined network plan" in Ch.
609, Stats., established by
2001 Wisconsin Act 16, therefore, necessitating change within the insurance administrative code. In addition many revisions have been made to Ch.
Ins 9 to reflect the changes enacted by
2001 Wisconsin Act 16 including modifications reflecting the unique nature of preferred provider plans and changes in the market place since 2001 including regulatory changes that enhance consumer protection enacted by surrounding states.
Finally, the proposed rule reflects numerous modifications arising from a cooperative effort of the Commissioner and representatives from the insurance industry. Since November 2004, four public working meetings have been held to discuss each section of the proposed rule. Each public meeting was attended by the Commissioner and his staff and representatives from the Wisconsin Association of Life and Health Insurers (WALHI), Council for Affordable Healthcare and Wisconsin Association of Provider Networks (WAPN) as well as representatives from no less than seven (7) domestic and non-domestic health insurers. Additional work groups comprised of representatives from industry and the Office met two additional times to work on the ancillary provider language and criteria for preferred provider plans. Participants at the open meetings were invited to comment and make recommendations or specific modifications to the proposed rule. Candid discussion provided both the Commissioner and the industry opportunity to voice support or concerns over each section of the rule. The public working meetings also gave both industry and the Commissioner the opportunity to share its respective views of the marketplace. Discussion often focused on how proposed and revised language affects the industry and its ability to function in the marketplace with the guiding statutory requirements and consumer concerns as reflected in complaints received by the OCI to maintain the proper balance in the proposed regulations. At each meeting revisions that had previously been discussed were reviewed, comment invited with extensive dialogue from both industry and OCI. At the end of the last working public meeting held May 9, 2005, the Commissioner invited written comment on the entire proposed rule. The comment period was intended to provide industry with time to reflect on the proposed rule and offer specific thoughtful revisions or recommendations and then permit the Commissioner time to review the suggested revisions and recommendations prior to issuing the Notice of Hearing for the rule. The culmination of those meeting, including written comments received throughout the last year, is reflected in this proposed rule.
The proposed rule defines preferred provider plans starting with the definition at s.
609.01, Wis. Stats., and clarifies and interprets the statutory requirements. Insurers offering preferred provider plans cannot require a referral to obtain coverage for care from either a participating or nonparticipating provider. If the preferred provider uses utilization management, including preauthorization or similar methods, for denying access to or coverage of the services of nonparticipating providers without just cause and with such frequency as to indicate a general business practice, such methods shall result in the plan being treated by the Commissioner as a defined network plan and subject to all requirements of a defined network plan. The Commissioner recognizes that the utilization management and preauthorization as appropriate tools for controlling costs of the insurer and may protect enrollees from incurring additional costs for care. Therefore the proposed rule does not prohibit or limit the proper use of utilization management or preauthorization. OCI will, however, track insurers' use of these tools through complaints and market conduct examination to determine if the insurer has developed a pattern, without just cause, for denying coverage. If such a pattern is uncovered then the insurer would be subject to regulation as a defined network plan.
The proposed rule reflects the amendments within Ch.
609, Stats., by delineating unique reporting and other regulatory requirements between insurers that offer preferred provider plans versus other types of defined network plans. Significant provisions that demonstrate the unique regulatory treatment between defined network and preferred provider plans include: defined network plans are required to have quality assurance plans containing standards relating to access to care and continuity and quality of care while preferred provider plans are required to conduct remedial action plans and to develop procedures for remedial action to address quality problems; defined network plans must notify affected enrollees upon the termination of the provider from the plan and preferred providers may contract with another entity or providers to notify the enrollees of the termination, although the preferred provider does remain ultimately responsible for ensuring notifications are sent; defined network plans must report data similar to HEDIS for consumer information and preferred provider plans do not; both defined network plans and preferred provider plans are required to have sufficient number and type of providers within the network to adequately deliver all covered services, however, defined network plans must comply with all access standards while preferred provider plans need to have at least one participating primary care provider and one participating provider that has an expertise in obstetrics and gynecology that is accepting patients but the preferred provider plan need not offer a choice of participating providers.
In order for preferred provider plans to be regulated under the less rigorous regulatory requirements, the preferred provider plan must comply with the proposed regulatory requirements. Preferred provider plans must provide covered benefits without requiring the enrollee to obtain a referral or directing provider selection through the use of incentives including financial. The Commissioner recognizes that certain covered services may appropriately be best provided through contracted providers, for example the use of “Centers of Excellence" for transplants or cancer treatment. Further the mandated benefit for immunizations requires the insurer to offer as a covered benefit immunizations but the insurer need only cover the benefit when the immunization is given by a participating provider. Finally, some insurers offer services beyond the mandated limits as covered benefits with a greater disparity in coverage and may limit the expanded benefits to services received from participating providers. Therefore, the proposed rule creates a narrow exception to permit specific, limited services to be covered by participating providers with a greater disparity in coverage than when the services are provided by nonparticipating providers including the possibility of coverage only when the services are performed by a participating provider (i.e. immunizations).
As recognized by both the industry and by the Commissioner, deductibles and coinsurance are appropriate tools to steer enrollees towards participating providers. Although an appropriate tool, the differences between the deductible and coinsurance that an enrollee is required to pay when services are performed by a participating provider as compared nonparticipating providers should only be enough to create the incentive to utilize preferred providers. The Commissioner over the past year has received and reviewed numerous comments on where the line should be drawn to create the proper balance between the insurers desire to steer enrollees towards participating providers yet not so great that as a result enrollees are exposed to potentially significant financial penalties.
Therefore, the proposed rule requires the insurers offering preferred provider plans that desire to be subject only to the lesser regulatory requirements of preferred provider plans to comply with the following: coverage of the same benefits, unless specifically excepted, with the insurer paying not less than 60% coinsurance and the enrollee paying not more than 40% coinsurance for services performed by a nonparticipating provider. As an alternate, the insurer may pay not less than 50% coinsurance and the enrollee pay not more than 50% coinsurance for the services performed by a nonparticipating provider when the insurer provides the enrollee with a disclosure of limited coverage. Failure of the insurer to offer 60% coinsurance coverage without a disclosure notice or 50% coinsurance coverage with the disclosure notice will result in the insurer being treated as a defined network plan and not eligible for the lesser regulatory standards.
Additionally, the insurer offering a preferred provider plan that applies a coinsurance percentage when services are performed by nonparticipating providers at a different percentage than the coinsurance percentage that is applied when the services are performed by participating providers shall have the difference be no greater than 30%. If the percent difference is greater than 30% the insurer is required to provide the enrollee with a disclosure notice. If an insurer offering a preferred provider plan applies a deductible that is different for participating providers than for nonparticipating providers, the deductible for the same services when performed by a nonparticipating provider must be no more than 2 times greater or no more than $2000 more than the deductible that is applied when performed by a participating provider. If the insurer applies a deductible for services performed by a nonparticipating provider that is greater than 2 times or is more than $2000 different than the deductible that is applied when performed by participating providers, the insurer is required to provide the enrollee with a disclosure notice. The disclosure notice that is required to be given is contained within the rule and is similar to the notice provided in the state of Illinois.
A preferred provider plan must apply material exclusions, maximum limits or conditions to services regardless if the services are performed by either participating or nonparticipating providers and offers or uses no other incentives than the financial incentives of coinsurance and deductibles described above to encourage its enrollees to use participating providers. The exception to this requirement is for the steering of enrollees to Centers of Excellence for transplants and specified disease treatment services and immunizations pursuant to s.
632.895 (14), Stats., when insurer comply with disclosure requirements at the time the product is marketed, purchased and within the policy form in a prominent location.
Preferred provider plans shall include within the participating provider contracts a provision requiring the participating provider that schedules an elective procedure or other scheduled non-emergent care to fully disclose to the enrollee at the time of scheduling the name of each provider that will or may participate in the delivery of care and whether each provider is a participating or nonparticipating provider. The insurer shall include a disclosure, in a form consistent with the language contained in Appendix D, which informs enrollees of potential financial implications of using nonparticipating providers and to encourage the enrollee to contact the insurer for assistance in locating an appropriate participating provider. The intent of this requirement is to address the frequent complaint from Wisconsin consumers alleging that although the enrollee sought care from a participating surgeon at a participating hospital, the ancillary providers including anesthesiology or other specialist was nonparticipating and as a result the enrollee incurred large, unexpected medical bills. It is expected that with additional information in advance of the needed service, enrollees will be able to work with insurers and providers to make the best informed medical and financial decisions.
Preferred provider plans are not required to have a quality assurance program and are instead subject to remedial action plans as mentioned earlier. The remedial action plan requires the insurer offering the preferred provider plan to develop procedures for taking effective and timely remedial actions to address issues arising from access to and continuity of care. The proposed rule requires the remedial action plan to contain at least all of the following: designation of a senior-level staff person responsible for oversight of the plan, a written plan for the oversight of any function that is delegated to other contracted entities, a procedure for periodic review of the insurer's performance or the performance of a contracted entity, periodic and regular review of grievances, complaints and OCI complaints, a written plan for maintaining the confidentiality of protected information, documentation of timely correction of access to and continuity of care issues identified in the plan to include the date the insurer was aware of the issue, the type of issue, the person responsible for the development and management of the plan, the remedial action plan utilized in each situation, the outcome of the action plan, and the established time frame for reevaluation of the issue to ensure resolution and compliance with the remedial action plan
Emergency medical care treatment coverage was identified by the Commissioner as another specific type of service for which the Office frequently receives complaints from Wisconsin consumers. This form of regulation is found in the surrounding states and is most similar to the regulation in Iowa. To further clarify the prudent person mandate for coverage of emergency medical care, the proposed rule contains requirements for both insurers offering defined network plans and preferred provider plans that provide emergency medical care treatment as a covered benefit. These insurers shall provide that treatment as though the provider was a participating provider when the enrollee cannot reasonably reach a preferred provider or is admitted for inpatient care even if the care is provided by a nonparticipating provider. The plans must reimburse the provider at the nonparticipating provider rate and apply any deductibles, coinsurance or other costsharing provisions, if applicable, at the participating provider rate.
Defined network plans and preferred provider plans are both required to annually certify compliance with applicable access standards. Defined network plans and preferred providers plans must both provide covered benefits by plan providers with reasonable promptness with respect to geographic location, hours of operation waiting times for appointments in provider offices and after hour's care reflecting the usual practice in the local area with geographic availability reflecting the usual medical travel times within the community. This requirement is not new and does not require insurers to mandate to participating providers the provider's hours of operation. Rather when the insurer is required to reply to the Office, the insurer must demonstrate that the hours of operation waiting time for appointments and after hours care of the participating providers is reasonable based upon the geographic location and usual medical travel times within that community.
The Commissioner finds that the circumstances of insurers offering group or blanket health insurance policy require that the insurer offering the policy otherwise exempt from Chs.
600 to
646, Stats., under s.
600.01 (1) (b) 3., Stats., in order to provide adequate protection to Wisconsin enrollees and the public those insurers shall comply with s.
Ins 9.34 (2) and s.
609.22 (2), Stats., when it covers 100 or more residents of this state under a policy that is otherwise exempt under s.
600.01 (1) (b) 3., Stats.
Finally, the proposed rule includes several new definitions of terms that were requested by the industry to assist in clarifying relationships between insurers and providers and to clarify what entities are subject to specific requirements.
The proposed rule would be enforced under ss.
601.41,
601.64,
601.65, Stats., or ch.
645, Stats., or any other enforcement provision of chs.
600 to
646, Stats. This proposed rule includes a significantly delayed applicability date to give insurers amply time to comply with the various provisions including sufficient time to submit to the OCI forms for approval prior to use.
