See the “Statute interpreted" section.
Plain language analysis
Section
DHS 35.16 (4) (b) requires as a condition for MA reimbursement, a physician's prescription for psychotherapy services. Similarly, ss.
DHS 107.02 (2m) (a) 7. and
107.13 (2) (a) (intro.) and
2. and
(b) 4. b., require a physician's prescription for mental health services, alcohol and other drug abuse services, and psychotherapy services as a condition for MA reimbursement. Pursuant to ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats., the department is prohibited from requiring a prescription from a physician or other health care provider for psychotherapy services, medical day treatment services, or mental health and alcohol and other drug abuse services as a condition for MA reimbursement. Thus, the department proposes to conform ss.
DHS 35.16 (4) (b),
107.02 (2m) (a) 7., and
107.13 (2) (a) (intro.) and
2. and
(b) 4. b. to existing state law.
2013 Wisconsin Act 20 included funding to expand MA outpatient mental health coverage to in-home psychotherapy services for children. See,
LFB Budget Summary. To effectuate this, the department proposes to revise s.
DHS 107.13 (2) (a) 4. and
(d) 3. to permit in-home psychotherapy services as a covered service for children.
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 rules.
Comparison with rules in adjacent states
Illinois: In-home psychotherapy services as a MA covered service for children is implemented by Illinois statutes only. There are no administrative rules.
Iowa: The Iowa Administrative Code provides broad latitude as to the location of service. Iowa administrative code section 441 IAC 78.1 permits payments for all medically necessary services and supplies provided by the physician including services rendered in the physician's office or clinic, the home, in a hospital, nursing home or elsewhere.
Michigan: In-home psychotherapy services as a MA covered service for children is implemented by Michigan statutes only. There are no administrative rules.
Minnesota: In-home psychotherapy services as a MA covered service for children is implemented by Minnesota statutes only. There are no administrative rules.
Summary of factual data and analytical methodologies
The department reviewed ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats.;
2013 Wisconsin Act 20 relating to expansion of the MA outpatient mental health coverage to in-home psychotherapy services for children (see,
LFB Budget Summary); and the existing rules affected by this proposed rule to determine the changes required to conform the rules to statute and to effectuate the changes necessary to permit the provision of in-home psychotherapy services for children.
Analysis and supporting documents used to determine effect on small business
The proposed rules do not impose regulatory requirements on businesses, including small businesses.
Effect on Small Business
The proposed rules do not impose requirements on businesses, including small businesses.
Agency Contact Person
Statement on Quality of Agency Data
To prepare the text and analysis of the proposed rules, the department relied on the language in ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats.;
2013 Wisconsin Act 20 relating to expansion of the MA outpatient mental health coverage to include in-home psychotherapy services for children (see,
LFB Budget Summary); and the existing rules affected by this proposed rule to determine the changes required to conform the rules to statute and to effectuate the changes necessary to permit the provision of in-home psychotherapy services for children.
Initial Regulatory Flexibility Analysis
The proposed rule will not have an effect on small business.
Small Business Regulatory Review Coordinator
Rosie Greer
608-266-1279
Fiscal Estimate – Economic Impact Analysis
The department has found no fiscal effect from implementing the rule.
Agency Contact Person
Al Matano
Department of Health Services
1 West Wilson Street
Room 318
Madison, WI 53703.
(608) 267-6848
Text of Proposed Rule
SECTION 1. DHS 35.16 (4) (b) is repealed.
SECTION 2. DHS 107.02 (2m) (a) 7. is repealed.
SECTION 3. DHS 107.13 (2) (a) (intro.) is amended to read:
DHS 107.13 (2) OUTPATIENT PSYCHOTHERAPY SERVICES. (a)
Covered services. Except as provided in par. (b), outpatient psychotherapy services shall be covered services when
prescribed by a physician, when provided by a provider certified under s.
DHS 105.22, and when the following conditions are met:
SECTION 4. DHS 107.13 (2) (a) 2. and (b) 4. b. are repealed.
SECTION 5. DHS 107.13 (2) (a) 4. g. is created to read:
DHS 107.13 (2) (a) 4. g. The home.
SECTION 6. DHS 107.13 (2) (d) 1. to 4. are amended to read:
DHS 107.13 (2) (d)
Non-covered services. 1. Collateral interviews with persons not stipulated in par. (c) 1., and consultations, except as provided in s.
DHS 107.06 (4) (d);.
2. Psychotherapy for persons with the primary diagnosis of developmental disabilities, including mental retardation, except when they experience psychological problems that necessitate psychotherapeutic intervention;.
3. Psychotherapy For individuals age 21 and over, psychotherapy provided in a person's home;.
4. Self-referrals. For purposes of this paragraph, "self-referral" means that a provider refers a recipient to an agency in which the provider has a direct financial interest, or to himself or herself acting as a practitioner in private practice; and.
SECTION 7. DHS 107.13 (2) (d) 3. Note is created to read:
DHS 107.13 (2) (d) 3. Note: Section
49.45 (45), Stats., provides for in-home community mental health and alcohol and other drug abuse (AODA) services for individuals age 21 and over. However, these services are available to an individual only if the county, city, town or village in which the individual resides elects to make the services available and agrees to pay the non-federal share of the cost of those services.
SECTION 8. EFFECTIVE DATE. This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register, as provided in s.
227.22 (2), Stats.
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA-2049 (R03/2012)
|
Division of Executive Budget and Finance
101 East Wilson Street, 10th Floor
P.O. Box 7864
Madison, WI 53707-7864
FAX: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
|
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1. Type of Estimate and Analysis
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X Original
⍽ Updated
⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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Chapters DHS 35, Outpatient Mental Health Clinics and 107, Covered Services (Medical Assistance).
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3. Subject
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Outpatient psychotherapy services
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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X GPR X FED
⍽ PRO
⍽ PRS
⍽ SEG
⍽ SEG-S
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No fiscal impact.
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6. Fiscal Effect of Implementing the Rule
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X No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
⍽ Local Government Units
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⍽ Specific Businesses/Sectors
⍽ Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes
X No
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9. Policy Problem Addressed by the Rule
|
Section DHS 35.16 (4) (b) requires as a condition for MA reimbursement, a physician's prescription for psychotherapy services. Similarly, ss. DHS 107.02 (2m) (a) 7. and 107.13 (2) (a) (intro.) and 2. and (b) 4. b., require a physician's prescription for mental health services, alcohol and other drug abuse services, and psychotherapy services as a condition for MA reimbursement. Pursuant to ss. 49.45 (30f) and 49.46 (2) (b) 6. f., fm., k., and Lr., Stats., the department is prohibited from requiring a prescription from a physician or other health care provider for psychotherapy services, medical day treatment services, or mental health and alcohol and other drug abuse services as a condition for MA reimbursement. Thus, the department proposes to conform ss. DHS 35.16 (4) (b), 107.02 (2m) (a) 7., and 107.13 (2) (a) (intro.) and 2. and (b) 4. b. to existing state law.
2013 Wisconsin Act 20 included funding to expand MA outpatient mental health coverage to in-home psychotherapy services for children. See, LFB Budget Summary. To effectuate this, the department proposes to revise s. DHS 107.13 (2) (a) 4. and (d) 3. to permit in-home psychotherapy services as a covered service for children.
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10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
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A request for comments was sent to approximately 200 persons or organizations, including mental health consumers, various department staff, representatives of mental health advocacy agencies, county departments of human services, and provider organizations, such as the Wisconsin Hospital Association, and other interested parties. In addition, those contacted include county staff who work in the areas of human services and mental health, and who are involved with the department in learning and applying a system change process.
The Wisconsin Association of Family and Children's Agencies (WAFCA) represents many of the larger organizations that own and operate outpatient mental health clinics. Among these are Lutheran Social Services, Catholic Charities, and others.
The Wisconsin Coalition of Behavioral Health Providers represents a number of smaller outpatient mental health clinics.
The Wisconsin Association of Marriage and Family Therapy was also contacted.
One comment was received from a private mental health services provider. Don Rosenberg, a licensed psychologist, is the President of Shorehaven Behavioral Health, Inc. Mr. Rosenberg had no concerns with the economic impact of the rule.
Another comment was received from a representative of a local governmental unit, as described in the next item.
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11. Identify the local governmental units that participated in the development of this EIA.
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The Western Region Recovery & Wellness Consortium (WRRWC) provided a comment on this EIA. The Western Region Recovery & Wellness Consortium (WRRWC) is a consortium of counties working together to improve the mental health and substance abuse service delivery system for public sector recipients. A staffer with Chippewa County, Jill Chaffee, was the author of the comment. Ms. Chaffee had no concerns with the economic impact of the rule.
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12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
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The proposed rules do not impose requirements on businesses, including small businesses.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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The department's proposal would conform the department's administrative code to the Wisconsin statutes, which prohibit the department from requiring a prescription from a physician or other health care provider for psychotherapy services, medical day treatment services, or mental health and alcohol and other drug abuse services as a condition for MA reimbursement. In addition, the department would expand MA outpatient mental health coverage to in-home psychotherapy services for children. The Legislature provided funding to do so in 2013 Wisconsin Act 20, the biennial budget act.
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14. Long Range Implications of Implementing the Rule
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There are no known long range implications of implementing the rule.
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15. Compare With Approaches Being Used by Federal Government
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There appear to be no existing or proposed federal regulations that address the activities to be regulated by the rules.
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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Illinois:
In-home psychotherapy services as a MA covered service for children is implemented by Illinois statutes only. There are no administrative rules.
Iowa:
The Iowa Administrative Code provides broad latitude as to the location of service. Iowa administrative code section 441 IAC 78.1 permits payments for all medically necessary services and supplies provided by the physician including services rendered in the physician's office or clinic, the home, in a hospital, nursing home or elsewhere.
Michigan:
In-home psychotherapy services as a MA covered service for children is implemented by Michigan statutes only. There are no administrative rules.
Minnesota:
In-home psychotherapy services as a MA covered service for children is implemented by Minnesota statutes only. There are no administrative rules.
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17. Contact Name
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18. Contact Phone Number
|
Al Matano
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(608) 267-6848
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Notice of Hearings
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 Chapters
Ins 16 and
40, Wis. Adm. Code, relating to holding company reporting requirements for insurers and affecting small business.
Hearing Information
Date: Wednesday, January 14, 2015
Time: 10:00 a.m., or as soon thereafter as the
matter may be reached
Location: Office of the Commissioner of Insurance
Room 227
125 South Webster St., 2nd Floor
Madison, Wisconsin
Submission of Written Comments
Written comments can be mailed to:
Richard B. Wicka
Legal Unit — OCI Rule Comment for Rule Ins 40
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
Richard B. Wicka
Legal Unit — OCI Rule Comment for Rule Ins 40
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
Richard B. Wicka
The deadline for submitting comments is 4:00 p.m. on January 21, 2015.
Copies of Rule
A copy of the proposed rule may be obtained from the Web site at:
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Public Information and Communications, Office of the Commissioner of Insurance, at (608) 264-8110. For additional information, please contact Richard B. Wicka at (608) 261-6018 or e-mail at
richard.wicka@wisconsin.gov in the OCI Legal Unit.
Analysis Prepared by the Office of the Commissioner of Insurance
Statutes interpreted
Statutory authority
Sections
227.11 (2) (a),
601.41 (3),
601.45,
601.48 (1) and
(2),
617.11 (1),
617.12 (2),
617.21 (1) (d),
(2) (a),
(b), and
617.215 (3), Stats.
Explanation of OCI's authority to promulgate the proposed rule under these statutes
The statutory authority for these rules are ss.
227.11 (2) (a) and
601.41 (3), Wis. Stats., which provide for the commissioner's rule making authority in general, and specifically, ss.
617.11 (1),
617.21 (1) (d),
(2) (a),
(b),
617.215 (3),
601.48 (1),
(2), and
601.45 (1), Wis. Stats. Section
617.11 (1), Wis. Stats., provides that an insurer shall report “information concerning the insurer and its affiliates that the commissioner requires by rule" and “the commissioner may promulgate rules prescribing the timing of reports under this subsection, including, but not limited to, requiring periodic reporting and the form and procedure for filing reports." Section
617.21 (1) (d), Wis. Stats., provides that regarding transactions with affiliates, the transaction must comply “with any other standard that the commissioner prescribes by rule." Section
617.21 (2) (a), Wis. Stats., provides that “the commissioner may promulgate rules requiring a domestic insurer, a person attempting to acquire or having control of a domestic insurer and affiliates of a domestic insurer to report a transaction or a group or series of transactions" that are material and involve a domestic insurer or an affiliate. Section
617.21 (2) (b), Wis. Stats., provides that transactions with affiliates may not be entered into unless the transaction is reported “to the commissioner in the form and by the date before the effective date of the transaction that are prescribed by the commissioner by rule." Section
601.48, Wis. Stats., states that the commissioner may participate in the activities and affairs of “organizations so far as it will, in the judgment of the commissioner, enhance the purposes of chs.
600 to
655" and the commissioner “may exchange information and data and consult with other persons in order to improve and carry out insurance regulation." Section
601.45 (1), Wis. Stats., provides that the reasonable costs of examination “shall be paid by examinees . . . either on the basis of a system of billing for actual salaries and expenses of examiners and other apportionable expenses, including office overhead, or by a system of regular annual billings to cover the costs relating to a group of companies, or a combination of such systems, as the commissioner may by rule prescribe." Section
617.215 (3), Wis. Stats., states that insurers that are the subject of a supervisory college “
shall pay the reasonable expenses related to the commissioner's participation in supervisory colleges, including reasonable travel expenses. The commissioner may impose a regular assessment on insurers to cover the expenses."
Related statutes or rules
None
