DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin department of health services (“the department”) proposes an order to repeal DHS 105.28 (2) (a) to (c), 107.06 (5) (c), 107.07 (4) (b), 107.07 (4) (k) 1., 107.16 (1) (e) 3. b.; renumber and amend DHS 105.28 (2) (intro.), and 107.16 (1) (e) 3. a.; amend DHS 105.24 (1) (b) 1., 105.25 (2) (a), 105.27 (2), 106.02 (9) (b) (intro.) and 1. to 7., 107.01 (2) (d), 107.03 (1), 107.06 (1), 107.07 (4) (c), 107.11 (1) (c), 107.13 (2) (a) 5., (2) (b) 4. e., (3) (a) 5. and 6., (3) (b) 4. d., (3m) (d) 6., (4) (a) 8., and (d) 7., and 107.16 (1) (a); create DHS 101.03 (66m), (174m), 105.27 (2) (Note 1), 105.28 (2) (Note 2). 105.48 (2m), 106.02 (9) (b) 9., 107.02 (5), 107.06 (4) (cm), 107.13 (2) (a) 4. h., and 107.24 (4) (j).
RULE SUMMARY
Statute interpreted
Not applicable.
Statutory authority
The department is authorized to promulgate the proposed rules based upon the following statutory sections:
Section 227.11 (2), Stats.
Rule−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.
Section 49.45 (61) (d), Stats.
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.
2019 Wisconsin Act 56 s. 8 (3)
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. Explanation of agency authority
The department’s authority to promulgate the proposed rules is expressly provided in ss. 227.11 (2) and 49.45 (61) (d), Stats. Related statute or rule
The following statutes or rules directly relate to reimbursement of many Medical Assistance services when delivered by means of telehealth and communications technology services:
Section 1173(d)-(f) of the Social Security Act
Section 1176 of the Social Security Act
Section 1177 of the Social Security Act
Section1180 of the Social Security Act
Section 1905 of the Social Security Act
45 CFR s. 164.105(1)(2)(ii)
45 CFR s. 164.302, et seq.
Section 49.45 (61), Stats.
Section 49.46 (2) (b) 21. through 23., Stats. Plain language analysis
In 2019 Wis. Act 56 (“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 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 services, and care management services delivered via telehealth. Act 56 also does the following: (1) It directs the department to identify by rule any other reimbursable Medical Assistance telehealth services; and (2) It permits the department to identify by rule certain non-reimbursable Medical Assistance services. Summary of, and comparison with, existing or proposed federal regulations
Federal law does not establish distinct requirements for Medical Assistance program reimbursement of services provided via telehealth. Instead, the Medical Assistance program may reimburse services provided via telehealth when the underlying service provided meets federal laws and policies. The Centers for Medicare and Medicaid Services (“CMS”) looks to and generally models its definition of telehealth on the Medicare definition of telehealth services.
Federal law establishes a more robust definition and requirements for Medicare program reimbursement of telehealth services. Section 1834(m) of the Social Security Act authorizes reimbursement for “telehealth services that are furnished via a telecommunications system by a physician . . . or a practitioner . . . to an eligible telehealth individual enrolled under [Medicare] notwithstanding that the individual physician or practitioner providing the telehealth service is not at the same location as the beneficiary.” Telehealth services include “professional consultations, office visits, and office psychiatry services . . . , and any additional service specified.” Excluding stroke and treatment of substance use disorders, reimbursement for services provided via telehealth are limited to services provided by a physician or practitioner located at a distant site.
Additionally, federal regulation provides requirements for Medicare program reimbursement of telehealth services. 42 CFR §410.78 requires that covered telehealth services provided by an interactive telecommunication system when (1) the physician or practitioner must be licensed to furnish the service under State law, (2) the physician or practitioner must provide services from a designated location, (3) the member must receive services at a designated location, and (4) the medical examination is under the control of the physician or practitioner providing the telehealth service. 42 CFR §414.65 allows the physician or practitioner providing the telehealth service to bill for services rendered at the same rate as for in-person services and allows the site where the member is located to charge a fee.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) also applies to services provided via telehealth. Applicable HIPAA requirements include the privacy and security rules to ensure the protection of personal health information transmitted and stored. In order to comply with these requirements, providers must ensure that the platforms used to provide services via telehealth contain adequate security measures.
Comparison with rules in adjacent states
Illinois:
As of September 2020, Illinois statute authorizes permanent reimbursement of behavioral health services provided via telehealth when provided by a certain state certified provider under 305 ILCS 5/5-5.25 (b)-(c). Under 89 Ill. Adm. Code 140.403, Illinois regulation permanently authorizes reimbursement of asynchronous and real-time video services provided via telehealth under certain conditions. These conditions include requiring a certified professional to be present at the originating site at all times, the distant site provider to be a certified professional, and the communication platform to be capable of allowing for proper diagnosis and transmission of clearly audible heart tones and lung sounds, clear video of the patient and diagnostic tools. It also excludes group psychotherapy via telehealth from reimbursement.
Iowa:
As of September 2020, Iowa statute authorizes permanent reimbursement of healthcare services provided via telehealth when provided via an interactive audio and video platform and the services meet legal and generally accepted healthcare practices and standards under Iowa Code § 514C.34 1. c. and 3.. Services provided via telehealth are to be reimbursed at the same rate as services provided in-person under Iowa Code § 514C.34 2. Iowa regulation authorizes reimbursement of services via telehealth that meet professional standards under Iowa Admin Code § 441-78.55(294A). The Iowa board of medicine authorizes provision of services via telehealth with or without the presence of a health care provider with the member and holds providers to the same standards of care and professional ethics as in-person services under Iowa Admin Code § 653-13.11(147,148,272C).
Michigan:
As of October 2020, Michigan statute authorizes permanent reimbursement of healthcare services provided via telehealth when provided through real-time, interactive audio or video or asynchronously with HIPAA privacy and security rule compliant platform under MCLS s. 400.105h. Services may be provided at a provider site, a school, a member’s home, or other appropriate location, with member consent, and, in limited circumstances, with accessible follow-up services under MCLS s. 330.1100d, 333.16284, 333.16285, and 400.105h.
Minnesota:
As of September 2020, Minnesota statute authorized permanent reimbursement of healthcare services provided via telehealth when provided through real-time, interactive audio and visual communications and asynchronous services if provided “in the same manner as if the service or consultation was delivered in person” under Minn. Stat. s. 256B.0625 subd. 3b. Services provided via telehealth must be reimbursed at the same rate as service provided in person and are generally limited to three visits per calendar week under Minn. Stat. s. 256B.0625 subd. 3b. Provider-to-provider consultations via telephone, email or facsimile and member-to-provider communications via email or facsimile are not reimbursable under Minn. Stat. s. 147.033. With limited exceptions, physicians that do not practice in but are registered in Minnesota may be reimbursed for services provided via telehealth if they are in good standing outside of Minnesota under Minn, Stat. s. 147.032. Minnesota regulation authorizes reimbursement of mental health services via telehealth when provided via two-way interactive video and the equipment and the connection complies with Medicare standards under Minn. R. 9505.0371 Subp. 10.
Summary of factual data and analytical methodologies
The department formed an advisory committee including representatives from: ABC for Health, Inc.; Bad River Health & Wellness Center; Disability Rights Wisconsin, Inc.; The Alliance of Health Insurers, LLC; LeadingAge Wisconsin, Inc.; Pharmacy Society of Wisconsin, Inc.; Wisconsin Assisted Living Association, Inc.; Wisconsin Association of Family & Children’s Agencies, Inc.; Wisconsin Association of Health Plans, Inc.; Wisconsin County Human Service Association, Inc.; Wisconsin Hospital Association, Inc.; Wisconsin Medical Society, Inc.; Milwaukee County Behavioral Health Division; and Wisconsin Primary Health Care Association, Inc. Advisory committee members were provided a copy of draft language of the proposed rules and asked to provide comments.
Analysis and supporting documents used to determine effect on small business
The department solicited the input of Medical Assistance providers, including small businesses, throughout the telehealth policy and proposed rule change process. In addition, the department published a solicitation in the Administrative Register from March 7, 2022, to April 4, 2022, in which it requested public comments on the economic impact of the proposed rule.
Effect on small business
The proposed rule changes have the potential to impact Medical Assistance providers that are small businesses. These providers have the opportunity to provide covered services via telehealth, which expands the pool of potential members and services provided beyond that potentially available for traditional in-person services, but must ensure that the technology used meets applicable federal and state standards. These providers may also experience increased competition from non-local providers providing similar covered services, including out-of-state providers who meet certification criteria.
Agency contact person
Statement on quality of agency data
See summary of factual data and analytical methodologies.
Place where comments are to be submitted and deadline for submission
RULE TEXT
SECTION 1. DHS 101.03 (66m), and (174m) are created to read:
DHS 101.03 (66m) “Functionally equivalent” means a service provided via telehealth that meets all of the following criteria:
(a) The quality, effectiveness, and delivery mode of the service provided is clinically appropriate to be delivered via telehealth.
(b) The service is of sufficient quality as to be the same level of service as an in person visit. Transmission of voices, images, data, or video must be clear and understandable.
DHS 101.03 (174m) (a) “Telehealth” means the use of telecommunications technology by a certified provider to deliver functionally equivalent services allowable under s. DHS 107.02 (5) and ss. 49.45 (61) and 49.46 (2) (b) 21. to 23., Stats., including assessment, diagnosis, consultation, treatment, or transfer of medically relevant data. (b) “Telehealth” may include real-time interactive audio-only communication.
(c) “Telehealth” does not include communication between a certified provider and a recipient that consists solely of an electronic mail message, text, or facsimile transmission.
SECTION 2. DHS 105.24 (1) (b) 1. is amended to read:
DHS 105.24 (1) (b) 1. A registered nurse and a registered occupational therapist shall be on duty available to participate in program planning, program implementation and daily program coordination;
SECTION 3. DHS 105.25 (2) (a) is amended to read:
DHS105.25 (2) (a) An alcohol and drug counselor certified as provided in ss. DHS 75.02 (84) and 75.03 (4) (d) shall be on duty available during all hours in which services are provided to participate in treatment planning and implementation and daily program coordination. SECTION 4. DHS 105.27 (2) is amended to read:
DHS 105.27 (2) PHYSICAL THERAPIST ASSISTANTS. For MA certification, physical therapist assistants shall have graduated from a 2−year college−level program approved by the American physical therapy association, and shall provide their services under the direct, immediate, on−premises supervision of a physical therapist certified pursuant to sub. (1) and. ss. 448.53, 448.56, and 448.985, Stats. Documentation of supervision shall be maintained and provided to the department upon request. Physical therapist assistants may not bill or be reimbursed directly for their services. When performing services, physical therapist assistants are to be submitted as renderer on billing claims. SECTION 5. DHS 105.27 (2) (Note 1) is created to read:
SECTION 6. DHS 105.28 (2) (intro.) is renumbered DHS 105.28 (2) and amended to read:
DHS 105.28 (2) OCCUPATIONAL THERAPY ASSISTANTS. For MA certification, occupational therapy assistants shall be certified by the American occupational therapy association. Occupational therapy assistants may not bill or be reimbursed directly for their services. When performing services, occupational therapy assistants are to be submitted as renderer on billing claims. Occupational therapy assistants shall provide services under the direct, immediate on−premises supervision of an occupational therapist certified under sub. (1) except that they may provide services under the general supervision of an occupational therapist certified under sub. (1) under the following circumstances: and ss. 448.961, 448.963, and 448.966, Stats. Documentation of supervision shall be maintained and provided to the department upon request. SECTION 7. DHS 105.28 (2) (a) to (c) are repealed.
SECTION 8. DHS 105.28 (2) (Note 2) is created to read:
SECTION 9. DHS 105.48 (2m) is created to read:
DHS 105.48 (2m) Out-of-state providers who meet the definition of a border-status provider as described in s. DHS 101.03 (19) and who provide services to Wisconsin members via telehealth, regardless of provider location, may apply for certification as Wisconsin border-status providers if they are licensed in Wisconsin under applicable Wisconsin statute and administrative code. SECTION 10. DHS 106.02 (9) (b) (intro.) and 1. to 7. are amended to read:
