STATE OF WISCONSIN
Department of Justice
ORDER adopting PERMANENT RULES
INTRODUCTORY CLAUSE
The State of Wisconsin Department of Justice (“DOJ”) proposes an order to amend Jus. 11.01(1) to (4) and (5) (intro.), Jus 11.06 (1) (intro.) and (2) (intro.), Jus 11.07(2)(a), Jus 11.09(2) (intro.), (3)(b), (c), and (h), Jus 11.11(1) and (2), and Just 11.13(1), (4), and (5) (intro.) and to create Jus 11 subch. II, relating to compensation for health care providers that perform sexual assault forensic examinations.
______________________________________________________________________________
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 Sexual Assault Forensic Exam (“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).
