STATEMENT OF SCOPE
WISCONSIN DEPARTMENT OF HEALTH SERVICES
CHAPTER: DHS 10, 38, 73, 92, 101, 105, 106, 107, 108, and 109
RELATING TO: Telehealth
RULE TYPE: Permanent and Emergency
SCOPE TYPE: Original
FINDINGS OF EMERGENCY: Not required
SUMMARY
1.
Description of rule objective/sIn 2019 Wis. Act 56, the Wisconsin Legislature directed reimbursement of many Medical Assistance services when delivered by means of telehealth and communications technology services. It directs the department of health services (“the department”) to reimburse Medical Assistance certified providers for services provided through asynchronous telehealth, interactive telehealth, and remote patient monitoring services, including for federally recognized Medicare telehealth services, remote physiological monitoring, remote evaluation of prerecorded patient information, brief communication technology-based, and care management services. It also directs the department to identify certain Medical Assistance reimbursable telehealth services and authorizes the department to identify certain Medical Assistance non-reimbursable telehealth services in administrative code. 2.
Existing policies relevant to the rule
Chapter DHS 92 Confidentiality of Treatment Records3.
Policies proposed to be included in the ruleThe department intends to promulgate administrative rules necessary to effectuate the purpose of 2019 Wisconsin Act 56, namely reimbursing identified Medical Assistance covered services through telehealth and communications technology services. The act also requires the department to promulgate rules specifying certain reimbursable Medical Assistance telehealth services and authorizes the department to promulgate rules specifying certain non-reimbursable Medical Assistance telehealth services.
4.
Analysis of policy alternativesThere are no reasonable alternatives to the proposed rulemaking. The Wisconsin Legislature has explicitly directed the department to promulgate rules identifying certain reimbursable Medical Assistance services and therefore authorized the department to promulgate rules identifying certain non-reimbursable Medical Assistance services.
5.
Statutory authority for the rulea.
Explanation of authority to promulgate the proposed ruleb.
Statutes that authorize the promulgation of the proposed ruleRule−making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule−making authority on the agency or augment the agency’s rule−making authority beyond the rule−making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule−making authority on the agency or augment the agency’s rule−making authority beyond the rule− making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute’s effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information. The department shall promulgate rules specifying any services under par. (c) 4. that are reimbursable under Medical Assistance. The department may promulgate rules excluding services under par. (c) 1. to 3. from reimbursement under Medical Assistance. The department may promulgate rules specifying any telehealth service under par. (b) or (c) 1. or 2. that is provided solely by audio−only telephone, facsimile machine, or electronic mail as reimbursable under Medical Assistance.
RULES REGARDING COVERAGE OF TELEHEALTH SERVICES. The department of health services may promulgate rules allowed under this act as emergency rules under s. 227.24. Notwithstanding s. 227.24 (1) (a) and (3), the department of health services is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the sooner of July 1, 2022, or the date the permanent rules take effect, except that, if the department of health services has submitted in proposed form permanent rules to the legislative council staff under s. 227.15 (1) before July 1, 2022, emergency rules promulgated under this subsection remain in effect until the permanent rules take effect. c.
Statute/s or rule/s that will affect the proposed rule or be affected by it
Chapter DHS 38 Substance Abuse Screening, Testing and Treatment for Certain Department Employment and Training Programs
Chapter DHS 73 Selected Fiscal Management Procedures And Standards Under The Community Options Program And Medical Assistance Home And Community-Based Services Waiver
