DEPARTMENT OF HEALTH SERVICES
Office of Legal Counsel
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: amend DHS 10.41 (2); and create DHS 10.13 (16g) and (16r), 101.03 (51p) and (51t), 105.16 (1m), 105.17 (1g) (cm), 105.19 (7m), 106.03 (2m), 107.02 (1) (am), relating to electronic visit verification requirements for certain Medical Assistance services.
The Governor approved the Statement of Scope for this rule, SS 081-22, on October 6, 2022. The Statement of Scope was published in Administrative Register on October 10, 2022 and was approved by the Secretary of the Department on January 18, 2023.
The department is authorized to promulgate the emergency rule based upon the following statutory sections:
Section 49.45 (1), (2) (a) 1. and. 2., 11. a. and b., 12. a. and b., 13., (b) 4., (3) (f) 2., and (10), Stats.
Explanation of agency authority
Section 46.288, Stats., authorizes the department to create rules for certification of care management organizations, including requirements for maintaining quality assurance and quality improvement. Section 49.45, Stats., directs the department to administer medical assistance (“MA”) and rehabilitative or other services in order to “provide appropriate health care for eligible persons and obtain the most benefits available under Title XIX of the federal social security act” and “help eligible individuals and families retain capability or independence or self-care.” Subsection (2) (a) of the statute directs the department to oversee the state MA program, which includes doing all of the following: (1) Exercising responsibility relating to fiscal matters and eligibility for benefits under ss. 49.46 to 49.471, Stats..
(2) “[C]ooperat[ing] with federal authorities for the purpose of providing assistance and services under Title XIX to obtain the best financial reimbursement available to the state from federal funds.”
(3) Establishing criteria for certification of MA providers, certifying MA providers, and promulgating rules related to certification.
(4) Decertifying or restricting MA providers who, after reasonable notice and opportunity for hearing, the department determines have violated federal or state MA laws or regulations, and promulgating rules to implement those processes.
(5) Setting forth conditions for provider participation and reimbursement and impose additional sanctions for noncompliance with terms or provider agreements or certification criteria.
Subsection (2) (b) of the statute further authorizes the department to audit claims filed by an MA provider and to request review of any medical records of individuals who received benefits under MA. Subsection (3) of the statute, relating to payment, requires that providers of MA maintain records as required by the department for verification of provider claims for reimbursement, and further authorizes the department to deny claims for reimbursement that cannot be verified, and to recover “the full value of any claim” if an audit determines that the actual provision of services cannot be verified or that the service was not covered. Subsection (10) of the statute authorizes the department to “promulgate such rules as are consistent with its duties in administering medical assistance” as detailed in the above-cited provisions of s. 49.45, Stats. Section 49.46 (2) (b), Stats., allows the department to audit and pay certified Medicaid providers on behalf of recipients for specifically enumerated services. This authority is relevant to the proposed rules because claims that are not matched to requisite EVV data will be denied. Services include:
6. The following services that, other than under subd. 6. f., fm., k., and Lr., are prescribed or ordered by a provider acting within the scope of the provider’s practice under statutes, rules, or regulations that govern the provider’s practice:
b. Physical and occupational therapy.
c. Speech, hearing and language disorder services.
dm. Subject to the requirements under s. 49.45 (9r), durable medical equipment that is considered complex rehabilitation technology, excluding speech generating devices.
g. Nursing services as defined in rules that the department shall promulgate.
j. Personal care services, subject to the limitation under s. 49.45 (42).
m. Respiratory care services for ventilator−dependent individuals.
8. Home or community−based services, if provided under s. 46.275, 46.277, 46.278, 46.2785, 46.99, or under the family care benefit if a waiver is in effect under s. 46.281 (1d), or under the disabled children’s long−term support program, as defined in s. 46.011 (1g). 9. Case management services, as specified under s. 49.45 (24) or (25). 18. Care coordination, as specified under s. 49.45 (25g). 20. Subject to s. 49.45 (24j), any additional services, as determined by the department, that are targeted to a population enrolled in a medical home initiative under s. 49.45 (24j).
Section 49.47 (6) (a), Stats., summarizes the department’s authority to audit and pay charges to providers for medical assistance on behalf of all Medicaid beneficiaries. The department will apply this authority in to enforce the proposed EVV rules by denying claims that are not matched to the requisite EVV data.
Section 49.471, includes provisions for BadgerCare Plus related to eligibility criteria. Subsection (12) of the statute authorizes the “department to promulgate any rules necessary for and consistent with its administrative responsibilities under this section, including additional eligibility criteria.”
Related statute or rule
The following federal statutes and rules directly relate to Electronic Visit Verification:
Section 1903(l) of the Social Security Act, 42 USC 1396b(l)
Plain language analysis
Section 12006(a) of the federal Cures Act amended section 1903 of the Social Security Act, 42 USC 1396b, and established requirements that state Medical Assistance programs utilize an electronic visit verification (“EVV”) system for personal care and home health services. The Cures Act further provides that states who fail to implement EVV for these services by a certain date are subject to a reduction in the federal medical assistance percentage in increasing amounts as years of noncompliance increase. See 42 USC 1396b (l) (1) (a) and (B). Consistent with the state’s obligation to administer MA—and, more specifically to “[c]ooperate with the federal authorities for the purpose of providing the assistance and services available under Title XIX to obtain the best financial reimbursement available to the state from federal funds” under s. 49.46 (2) (a) 7., Stats.—the department has determined that rules are necessary under s. 49.45 (10), Stats., to comply with the EVV requirements created by the Cures Act. The proposed rules will (1) create requirements for providers seeking reimbursement for home health and personal care services to provide requisite EVV data, and (2) establish enforcement mechanisms for these requirements.
Summary of, and comparison with, existing or proposed federal regulations
Section 1903(l) of the Social Security Act, 42 USC 1396b (l), requires Medical Assistance programs to utilize an electronic visit verification system for personal care and home health services in order to gain the maximum amount of federal matching funds available to a state. The following personal care and home health service visit information is required to be electronically verified:
the type of service performed;
the individual receiving the service;
the date of the service;