DEPARTMENT OF HEALTH SERVICES Office of Legal Counsel F-02315 (02/2020) | STATE OF WISCONSIN |
STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES |
CHAPTER: | DHS 105 and 107 |
RELATING TO: | Prenatal Care Coordination |
RULE TYPE: | Permanent |
SCOPE TYPE: | Original |
FINDINGS OF EMERGENCY: | Not Applicable |
SUMMARY |
Description of rule objective/s |
Sections 49.46 (1) (a) 1m., 49.46(1) (j), 49.47(4) (ag) 2., 49.471 (6) (b), and 49.471 (7) (b) 1., Stats., were amended by 2021 Wis. Act 58 (“Act 58”) to extend the period of postpartum medical assistance (“MA”) eligibility for pregnant women. The department seeks to amend administrative rules to align with the end of eligibility provided in s. 49.46(1)(a)1m., Stats. Pursuant to s.49.471(6) (L), Stats., which was created by Act 58, the department of health services (“the department”) submitted a request on June 3, 2022 to the federal department of health and human services for a waiver of federal law to implement the aforementioned postpartum eligibility extension. The department proposes to revise s. DHS 107.34 and s. DHS 105.52 to align the prenatal care coordination (“PNCC”) benefit eligibility with the postpartum eligibility extension authorized by Act 58. Additionally, the department proposes to expand PNCC eligibility to more pregnant MA recipients, based on the fact that MA recipients generally face higher risks for adverse pregnancy outcomes, such as preterm birth and low birth weight,[1] than individuals who are not eligible for MA. In addition, the department proposes as to revise ss. DHS 105.52 and 107.34 to adjust prenatal care coordination service provision requirements to mitigate the risks of fraud, waste, and abuse identified in the benefit and to promote the health and safety of the people of Wisconsin. |
Existing policies relevant to the rule |
Section DHS 105.52 includes criteria under which entities may be certified by the department to PNCC services to eligible MA recipients. Subsection (1) identifies specific entities that may be certified as PNCC providers, such as a community-based health organization, city or county public health agency, or private case management agency. Subsection (2) identifies personnel required to provide certain PNCC services, such as a nurse practitioner, nurse midwife, physician assistant, or registered dietician. Subsection (3) and (4) establish specific documentation requirements that providers must meet in order to be certified, such as maintaining a list of personnel under subsection (2) and submitting a plan to DHS upon enrollment. Subsection (5) establishes specific requirements for the confidential file that providers must maintain for each member receiving services. Section DHS 107.34 includes criteria for covered PNCC services furnished by certified providers to eligible MA recipients that may be reimbursed by the department. Subsection (1) establishes general requirements for covered services, such as that the PNCC benefit is available from “the beginning of the pregnancy up to the sixty-first day after delivery,” as well as specific requirements for each service provided under the PNCC benefit, including outreach, risk assessment, care planning, ongoing care coordination, health education, and nutrition counseling. Subsection (2) establishes limitations on covered services, such as limiting reimbursement to a maximum amount per pregnancy. Subsection (3) identifies services that are not covered as PNCC services, such as diagnosis and treatment and transportation. Sections 49.45(44) and § 49.46 (2) (b) 12m., Stats., relating to the medical assistance benefit of prenatal, postpartum and young child care coordination (“CCC”) services for residents of Milwaukee County and the city of Racine. These CCC services are subject to the same provisions in chs. DHS 105 and 107 as PNCC services. |
Policies proposed to be included in the rule |
The department proposes to revise provisions in s. DHS 105.52 to expand enrollment and certification requirements for prenatal care coordination providers—including prenatal care coordination providers certified to provide prenatal, postpartum and care coordination for young children in Milwaukee County or the city of Racine—and to expand personnel criteria to enable MA recipients to access high-quality, culturally appropriate prenatal care coordination services. The department proposes to revise provisions in s. DHS 107.34 to comport with the postpartum eligibility extension in Act 58, recognize that all pregnant MA recipients are at higher risk for adverse pregnancy outcomes, such as preterm birth and low birth weight,i than individuals who are not eligible for MA, and to expand covered prenatal care coordination services to enable MA recipients to access high-quality, culturally appropriate prenatal care coordination services. |
Analysis of policy alternative |
There are no reasonable alternatives to the proposed rulemaking. Act 58 extends the PNCC benefit, and if approved, the language in the rule will be inconsistent with the extension. The other identified policies in the current rule relating to enrollment and certification are outdated and need to updated. |
Statutory authority for the rule |
a. Explanation of authority to promulgate the proposed rule |
The department’s authority to promulgate the proposed rules is explicitly provided in ss. 49.45 (10) and 227.11 (2), Stats. |
b. Statute/s that authorize/s the promulgation of the proposed rule |
Section 49.45 (10), Stats.: Rule−making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. The department shall promulgate a rule defining the term “part−time intermittent care” for the purpose of s. 49.46. Section 227.11 (2), Stats., reads: 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. |
Statute/s or rule/s that will affect the proposed rule or be affected by it |
— Section 49.46 (2) (b) 12., Stats., relating to the medical assistance benefit of care coordination for women with high-risk pregnancies — Sections 49.45(44) and § 49.46 (2) (b) 12m., Stats., relating to the medical assistance benefit of prenatal, postpartum and young child care coordination (“CCC”) services for residents of Milwaukee County and the city of Racine. These CCC services are subject to the same provisions in chs. DHS 105 and 107 as PNCC services. — Sections 49.46 (1) (a) 1m., 49.46 (1) (j), and 49.47 (4) (ag) 2., and 49.471 (6) (b), which extend the period of PNCC coverage from 60 to 90 days postpartum, if approved by the federal government. — Section 49.471(6)(L), Stats., requiring the department to request from the federal department of health and human services approval of a state plan amendment or a waiver of federal law to implement subs. (6) (b) and (7) (b) 1. and ss. 49.46 (1) (a) 1m. and (j) and 49.47 (4) (ag) 2. — Chapter DHS 105, relating to provider certification—specifically ch. DHS 105.52(2)(a), 105.52(3), and 105.52(4). — Chapter DHS 107, relating to covered services—specifically ch. DHS 107.34(1)(a)2, 107.34(1)(c)-(g), 107.34(2)(a), and 107.34(3)(e). |
Estimates of the amount of time that state employees will spend to develop the rule and other necessary resources |
The estimated time for state employees to develop the rule is 2,080 hours. |
Description of all of the entities that may be affected by the rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the rule |
— The department — Public and private-sector entities that provide PNCC services — Wisconsin MA members who receive PNCC services |
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule |
42 CFR 440.210(a)(2), which requires that state medical assistance programs provide, for the categorically needy, pregnancy-related services and services for other conditions that might complicate the pregnancy, including prenatal and postpartum care. 42 CFR 440.210(a)(3), which requires that state medical assistance programs provide, for the categorically needy, pregnancy-related services for a postpartum period that begins on the last day of pregnancy and extends through the end of the month in which the 60-day period following termination of pregnancy ends. 42 CFR 440.220(a)(1), which requires that state medical assistance programs provide, for the medically needy, prenatal care and delivery services for pregnant women. 42 CFR 440.220(a)(5), which requires that state medical assistance programs provide, for the medically needy, pregnancy-related services for a postpartum period that begins on the last day of pregnancy and extends through the end of the month in which the 60-day period following termination of pregnancy ends. 42 CFR 440.250(m), which in part limits services provided by state medical assistance programs, for certain eligible lawful temporary residents, to services for pregnant women as defined by section 1916(a)(2)(B) of the Social Security Act [42 USC § 1396o(a)(2)(b)] for a period of five years from the date the individual is granted lawful temporary resident status. 42 CFR 440.250(p), which allows state medical assistance programs to provide a greater amount, duration, or scope of services to pregnant women than provided to other Medicaid-eligible individuals, if these services are pregnancy-related or related to any other condition which may complicate pregnancy and if these services are provided in equal amount, duration, and scope to all pregnant women covered under the State plan. 42 CFR 440.250(r), which allows state medical assistance programs to limit targeted case management services to certain geographic areas without regard to statewide requirements or to targeted groups specified by the State. 42 CFR 440.255(b)(2), which allows state medical assistance programs to provide, for certain lawful temporary residents, services for pregnant women which are included in the approved State plan, which include routine prenatal care, labor and delivery, and routine post-partum care. 42 CFR § 440.255(b)(2) also allows state medical assistance programs to provide, for certain lawful temporary residents, additional plan services for the treatment of conditions which may complicate the pregnancy or delivery. 42 CFR 431(G), which allows state medical assistance programs to seek waiver of requirements in Title XIX of the Social Security Act to implement 1115 demonstration projects. 42 CFR 441.18, which establishes requirements and limits applicable to medical assistance state plan case management services. |
Anticipated economic impact, locally or statewide |
The proposed rule may have moderate economic impact. |
Agency contacts |
Bailey Dvorak Division of Medicaid Services 608-267-5210 |
