STATE OF WISCONSINDepartment of Justice
PROPOSED ORDER adopting PERMANENT RULES
Introductory Clause
The State of Wisconsin Department of Justice (“DOJ”) proposes to create a new subchapter in Jus 11 relating to awards made to health care providers from the Sexual Assault Forensic Exam (“SAFE”) Fund for the costs in performing sexual assault forensic examinations. Currently, DOJ pays awards from the SAFE Fund on a case-by-case basis without regulations that determine the services which are eligible for an award, requirements for billing in order to receive an award, or setting a maximum amount for an award. The proposed subchapter would delineate the services which are eligible for an award, establish procedures under which health care providers seek an award from the SAFE Fund, and set a maximum amount of an award for an examination. The proposed subchapter would also serve to notify victims of sexual assault the specific services that will be covered by the SAFE Fund.
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Analysis by the Department of Justice
The scope of the proposed rules was described in a scope statement that was approved by the Governor on September 25, 2014, published in the Administrative Register on October 15, 2014, and approved by the Attorney General on October 27, 2014.
Statutory authority: s. 949.22, Stats. Explanation of Statutory Authority: Section 949.22, Stats., provides that DOJ “shall promulgate rules for the implementation and operation of this subchapter. The rules shall include procedures to ensure that any limitation of an award is calculated in a fair and equitable manner.” Related statutes or rules: None.
Plain language analysis: The proposed rule adds a new subchapter II to Jus 11, titled Sexual Assault Forensic Examination Compensation. The existing Jus 11 will become subchapter I, titled Crime Victim Compensation. The proposed rule therefore changes all references to “this chapter” in the existing sections of Jus 11 to “this subchapter.” Otherwise, the existing Jus 11 remains unchanged. The new rules establish the services that are “examination costs” eligible for payments from the SAFE Fund, set billing requirements for health care providers seeking an award of examination costs from the SAFE Fund, and set a maximum amount of an award for each examination. The new subchapter II contains three sections.
Proposed s. Jus 11.14 contains the statutory authority for the rules, the scope of the rules’ applicability, details regarding the administration of the subchapter, and definitions of terms used in the subchapter. Proposed s. Jus 11.15 specifies that health care providers are to follow the statutory requirements contained in Subchapter II of chapter 949, Stats., and Section 50.375, Stats. Proposed s. Jus 11.15 also lists the specific procedures that qualify as “examination costs” eligible for an award from the SAFE Fund. The proposed rule’s intent is to limit awards to services that meet the definition of “examination costs” in Section 949.20(3), Stats, defined as “the costs of an examination that is done to gather evidence regarding a sex offense” as well as procedures that test for sexually transmitted diseases and medications that treat or prevent sexually transmitted diseases. The proposed rule lists seven services for which an award is available: collection of the victim’s medical history; collection of a forensic history of the events of the assault; physical examination of the victim for evidence of the assault; photographs of the physical evidence of the sex offense, if the health care provider conducting the examination has been trained to take photographs for use as evidence; evaluation, testing, and prophylaxis for sexually transmitted diseases; evaluation of the risk of pregnancy; and collection of blood and urine using the collection kit provided by law enforcement. The department determined that these services would be eligible for an award by consulting the National Protocol for Sexual Assault Forensic Examinations (SAFE Protocol, 2d Edition) issued by the United States Department of Justice’s Office on Violence Against Women, which is a best practices guide for conducting sexual assault medical forensic examinations. Proposed s. Jus 11.16 specifies procedures for health care providers to follow when seeking an award from the SAFE Fund and limits the total amount that can be awarded for an examination. The proposed rule requires an itemized bill listing each charge for which an award is sought and provides that payments will be made directly to the health care provider. The proposed rule limits awards to two-thirds of the amount billed, up to $1200 per examination. The $1200 amount is an aggregate limit that applies even if multiple health care providers seek awards for the same examination. The $1200 limit may be exceeded in exceptional circumstances if the limit would be unfair and unreasonable in that particular instance. Beginning in 2017, the maximum amount will be increased annually for inflation. Summary of, and comparison with, existing or proposed federal regulation: There are no federal regulations that define the precise scope of services that must be paid for a sexual assault forensic examination or set a maximum amount for an award. Federal law requires that victims receive examinations free of charge, that victims not be required to seek reimbursement from their insurers for the cost of the examination, and that payment not be contingent on the victim participating in the criminal justice system or cooperating with law enforcement. See 42 U.S.C. § 3796gg-4. Subchapter II of Chapter 949, Stats., complies with these requirements of federal law and the proposed regulations likewise comply by incorporating the requirements of Subchapter II of Chapter 949, Stats., into the proposed rule. In addition, DOJ has relied on the National Protocol for Sexual Assault Forensic Examinations (SAFE Protocol, 2d Edition) issued by the United States Department of Justice’s Office on Violence Against Women in drafting the proposed rules. While not a binding federal regulation, the SAFE Protocol is a best practices guide to conducting sexual assault medical forensic examinations produced by the U.S. Department of Justice. The proposed rules were drafted to follow the best practices outlined by the SAFE Protocol.
Comparison with rules in adjacent states:
A. Illinois
Illinois provides a list of minimum requirements for hospitals providing emergency and forensic services to sexual assault survivors, Ill. Code 410 § 70/5, and for follow-up health care provided to sexual assault survivors, Ill. Code 410 § 70/5.5.
With respect to reimbursement rates, as of July 1, 2012, Illinois “reduce[d] any rate of reimbursement for services or other payments in accordance with Section 5-5e of the Illinois Public Aid Code,” Illinois’s reimbursement rate for Medicaid. Ill. Code 410 § 70/7.
B. Iowa
Iowa will pay an examiner’s fee for collection of patient’s medical history, physical examination, collection of laboratory specimens, return visits to test for sexually transmitted diseases, and treatment for prevention of sexually transmitted diseases. Iowa Admin. Code. r. 61-9.83(1). Iowa also pays a fee for the examination facility, including emergency room, clinic room or office room fee and pelvic tray and medically required supplies. Id. In addition, Iowa pays for laboratory collection and processing of specimens for criminal evidence, sexually transmitted diseases, and pregnancy testing. Id.
With respect to reimbursement rates, Iowa pays only charges determined by the department to be reasonable and fair. Iowa Admin. Code r. 61-9.82(2). Health care providers must submit an itemized bill listing the fee for each service. 61-9.82(2). Iowa limits payment to $300 for the examination facility, $200 for the examiner fee, and also pays the reasonable cost of laboratory collecting and processing for criminal evidence, sexually transmitted diseases, and pregnancy testing. Id. Any amounts in excess of the limits require additional documentation. Id.
C. Michigan
For each forensic examination, Michigan law requires the collection of a medical history, a general medical examination including use of laboratory services and dispensing prescribed pharmaceutical items, and a detailed examination of the bodily area where the assault occurred. Mich. Comp. Laws § 18.355a(1). Michigan limits reimbursement for examination costs to $600 total, including a limit of $400 for facilities, $125 for laboratory services, and $75 for pharmaceuticals. Mich. Comp. Laws § 18.355a(7). D. Minnesota
Minnesota law provides that the costs incurred by a health care provider in “the examination of a victim of criminal sexual conduct when the examination is performed for the purpose of gathering evidence shall be paid by the county in which the criminal sexual conduct occurred.” Minn. Stat. § 609.35(a). It provides that “[t]hese costs include, but are not limited to, full cost of the rape kit examination, associated tests relating to the complainant’s sexually transmitted disease status, and pregnancy status.” Id. Thus, there is no state-wide rule in Minnesota and examination costs are handled on a county-by-county basis. Summary of factual data and analytical methodologies: With respect to the scope of services eligible for an award, the proposed rules are based on (1) analysis by DOJ crime victim services unit staff of the best practices for conducting sexual assault forensic examinations and (2) analysis by DOJ legal staff of the definition of “examination costs” in s. 949.20(3), Stats. With respect to the services that are covered, DOJ consulted the federal SAFE Protocol discussed above in determining the services that would be eligible for an award. With respect to the level of reimbursement, the proposed rules are based on analysis by DOJ crime victim services staff of the amounts health care providers are currently billing the SAFE Fund for sexual assault forensic examinations as well as an analysis of the limits approved by other states. In fiscal year 2012, the SAFE Fund paid $321,506 in examination costs for 340 exams (an average of $945.61 per exam). In fiscal year 2013, the SAFE Fund paid $433,567 in examination costs for 460 exams (an average of $942.54 per exam). In fiscal year 2014, the SAFE Fund paid $686,878 in examination costs for 720 exams (an average of $954.00 per exam). DOJ chose the $1200 maximum because it should allow all SAFE examination centers to be able to continue to provide services for the victims of sexual assault.
In determining the appropriate maximum amount of reimbursement, DOJ also examined the levels of reimbursement used by other states, including the neighboring states discussed above.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: DOJ does not anticipate any economic or fiscal impact on specific businesses, business sectors, public utility ratepayers, local governments, or the State’s economy as awhile. The regulations will only affect health care providers that perform sexual assault sexual forensic examinations. Those providers which are small businesses should be able to comply with the regulation without the need for special accommodation. The costs of compliance should be minimal because the rules only require submitting an itemized bill, something which small businesses already do in the ordinary course of business to secure payment for their services.
The economic impact on the economy as a whole and the health care sector in particular will be minimal. The SAFE Fund paid $686,878 in awards of examination costs in fiscal year 2014, which is not enough to impact the economy of the entire state or a particular sector of business. Further, the regulations would have no economic impact effect in many instances. Only health care providers that submit claims in excess of $1200 will be affected negatively and these providers will have their awards reduced rather than eliminated completely. The regulation should not affect a substantial amount of claims, however, because the current average award is $954.00. Health care providers also will not be paid for services which are not “examination costs” as defined in the statute, but these providers will be able to seek payment of these costs from other sources..
Effect on small business: Based on agency staff analysis and the comment and review process discussed above and in the economic impact report that is being simultaneously submitted by DOJ, pursuant to s. 227.137, Stats., DOJ has concluded that the proposed rules will not have a significant effect on small businesses. Agency contact person: Assistant Attorney General Brian P. Keenan, Wisconsin Department of Justice, 17 West Main Street, P.O. Box 7857, Madison, Wisconsin 53707-7857; phone (608) 266-0020; email: keenanbp@doj.state.wi.us. Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person shown above no later than one week after the public hearing on the proposed rule is conducted. Information as to the time, date, and location of the public hearing will be published in the Wisconsin Administrative Register.
TEXT OF THE PROPOSED PERMANTENT RULES
SECTION 1. Jus 11 Subchapter I (title) (precedes Jus 11.01) is created to read:
SUBCHAPTER I
CRIME VICTIM COMPENSATION
SECTION 2. Jus 11.01 (1) to (4) and (5) (intro.) are amended to read:
Jus 11.01 Description of the program. (1) AUTHORITY AND PURPOSE. This chapter subchapter is promulgated pursuant to s. 949.02, Stats., for the purpose of administering the awards for the victims of crimes program in Wisconsin which provides assistance to innocent victims of crimes and their families in order to ease their financial burdens. (2) APPLICABILITY. This chapter subchapter applies to all persons who apply for financial assistance from the awards for the victims of crimes program and to all related matters, proceedings and hearings.
(3) ADMINISTRATION. Chapter 949, Stats., and this chapter subchapter shall be administered by a director appointed by the attorney general. (4) SERVICE AND FILING. Papers and petitions required to be served upon, or filed with the department of justice, by this chapter subchapter shall be served either in person or by mail and shall be addressed: Wisconsin Department of Justice, Office of Crime Victim Services, 123 West Washington Avenue, Post Office Box 7951, Madison, WI 53707−7951. The papers and petitions are deemed served or filed when received by the department.
