DEPARTMENT OF HEALTH SERVICES Office of Legal Counsel F-02315 (10/2021) | STATE OF WISCONSIN |
STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES |
CHAPTER: | DHS 105 and 107 |
RELATING TO: | Child care coordination services |
RULE TYPE: |
SCOPE TYPE: |
FINDING OF EMERGENCY: | Preservation of the public peace, health, safety, or welfare necessitates adoption of an emergency rule. The office of the inspector general (“OIG”) and the division of Medicaid services found evidence of fraud in the child care coordination ("CCC") benefit and determined that existing benefit requirements have allowed providers to enter the marketplace who are not offering appropriate services. Due to those findings, the Centers for Medicare and Medicaid Services issued a temporary moratorium restricting new enrollments in prenatal care coordination (“PNCC”) agencies, which also provide CCC services. Restricting enrollments through the moratorium gives the department time to mitigate the potential for fraud in provider enrollment. The moratorium is set to expire on December 6, 2024, without the possibility of further extension. New administrative rules are necessary to mitigate the risk of further fraud in the CCC benefit. Efforts are underway to revise the CCC and PNCC benefits via Statement of Scope SS 037-24, but it will not be possible to promulgate permanent rules for CCC under SS 037-24 before the federal moratorium expires. Emergency rules are also necessary to ensure eligible members begin receiving high-quality CCC services sooner than when permanent rules under SS 037-24 could take effect. CCC services are an important early intervention strategy to identify and support children at high risk of child abuse and neglect in Milwaukee County and the City of Racine. CCC services include care planning and care coordination for these high-risk children to promote positive parenting, improve health outcomes, and prevent abuse and neglect. Based on department enrollment records, prior to the temporary moratorium, these services were provided to an estimated 3,187 children annually. From March 1, 2024 to May 31, 2024, the number of members receiving services with paid claims was approximately 21, due to the enrollment moratorium and pre-payment integrity reviews conducted by OIG. It is expected that the number of individuals receiving the benefit will increase upon benefit redesign; however, it is not expected to reach pre-moratorium levels due to the impact of fraudulent claims submitted on these counts. |
SUMMARY |
Description of rule objective/s In order for MA recipients have access to high-quality, culturally appropriate child care coordination services the Wisconsin Department of Health Services (“the department”) proposes to detail specific policies and practices for the CCC program that are separate from the PNCC program. To ensure access to those services and mitigate the risks of fraud, waste, and abuse, the proposed emergency rule seeks to do the following: Create requirements for CCC provider certification and enrollment. Identify which services are covered under the CCC benefit. |
Existing policies relevant to the rule |
Section 49.45 (44), Stats., states that providers certified to provide PNCC services in Milwaukee County and the city of Racine may also be certified to provide CCC services, which are reimbursable under MA under s. 49.46 (2) (b) 12m., Stats. Prior to November 10, 2023, [1] certified PNCC providers in Milwaukee County and the City of Racine were automatically certified to provide CCC services, and rules did not specify which specific services were covered under the CCC benefit. See, e.g., s. DHS 105.52 (providing criteria under which entities may be certified by the department to provide PNCC services) and s. DHS 107.34 (identifying which services are covered as PNCC services furnished by certified providers to eligible MA recipients that may be reimbursed by the department under MA). |
Policies proposed to be included in the rule |
The department first proposes to create provisions to specify which services are specifically CCC covered services, including case management services for assessment, care plan development, and ongoing care coordination and monitoring. The department also proposes to create provisions specifying non-covered services and limitations. Service enhancements are anticipated to include group services and referrals. Second, the department proposes to create CCC-specific provider certification qualifications for agencies, qualified professionals, and care coordinators requiring experience, training, licensing, and supervision specific to early childhood services and populations, as necessary. Specific amended provisions are likely to include: Clarify that the CCC agency, qualified professional, and care coordinator enrollment structures and operational requirements align with those of the PNCC benefit, where appropriate. Increase care coordinator supervision and oversight requirements Introduce additional criteria required for ongoing professional development |
Analysis of policy alternative There are no reasonable alternatives to the proposed rulemaking. The eligibility provided in the rule is already inconsistent with existing laws. The other identified policies in the current rule relating to enrollment and certification are outdated and need to be updated to ensure access to necessary care for MA recipients, and to eliminate risks of fraud, waste, and abuse in the CCC benefit. |
Statutory authority for the rule |
Explanation of authority to promulgate the proposed rule |
Under s. 49.46 (2) (b) 12. and 12m., Stats., the department is required to audit and pay allowable charges to certified MA providers for “[c]are coordination services for women with high-risk pregnancies” and “[p]renatal, postpartum and young child care coordination services under s. 49.45 (44).” Chapter DHS 107 was promulgated to effectuate the department’s obligation to audit and pay for covered services, and based on authority provided in ss. 49.45 (2) (a) 1. and 2., 11., 12., (3) (f) 2., and (10) and 227.11 (2), Stats. |
Statute/s that authorize/s the promulgation of the proposed rule |
Section 49.45 (2) (a) 1. and 2., 11., 12., (3) (f) 2., (10), and (44), Stats.: (2) Duties. (a) The department shall: 1. Exercise responsibility relating to fiscal matters, the eligibility for benefits under standards set forth in ss. 49.46 to 49.471, and general supervision of the medical assistance program. 2. Employ necessary personnel under the classified service for the efficient and economical performance of the program and shall supply residents of this state with information concerning the program and procedures. . . . 11. a. Establish criteria for certification of providers of medical assistance and, except as provided in par. (b) 6m. and s. 49.48, and subject to par. (b) 7. and 8., certify providers who meet the criteria. b. Promulgate rules to implement this subdivision. . . . 12. a. Decertify a provider from or restrict a provider’s participation in the medical assistance program, if after giving reasonable notice and opportunity for hearing the department finds that the provider has violated a federal statute or regulation or a state statute or administrative rule and the violation is, by statute, regulation, or rule, grounds for decertification or restriction. The department shall suspend the provider pending the hearing under this subdivision if the department includes in its decertification notice findings that the provider’s continued participation in the medical assistance program pending hearing is likely to lead to the irretrievable loss of public funds and is unnecessary to provide adequate access to services to medical assistance recipients. As soon as practicable after the hearing, the department shall issue a written decision. No payment may be made under the medical assistance program with respect to any service or item furnished by the provider subsequent to decertification or during the period of suspension. b. Promulgate rules to implement this subdivision. . . . (3) Payment. . . . (f) . . . 2. The department may deny any provider claim for reimbursement which cannot be verified under subd. 1. or may recover the value of any payment made to a provider which cannot be so verified. The measure of recovery will be the full value of any claim if it is determined upon audit that actual provision of the service cannot be verified from the provider’s records or that the service provided was not included in s. 49.46 (2) or 49.471 (11). In cases of mathematical inaccuracies in computations or statements of claims, the measure of recovery will be limited to the amount of the error. . . . (10) 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. . . . (44) Prenatal, postpartum and young child care coordination. Providers in Milwaukee County that are certified to provide care coordination services under s. 49.46 (2) (b) 12. may be certified to provide to medical assistance recipients prenatal and postpartum care coordination services and care coordination services for children who have not attained the age of 7. Providers in the city of Racine that are certified to provide care coordination services under s. 49.46 (2) (b) 12. and are participating in a program under s. 253.16 may be certified to provide to medical assistance recipients prenatal and postpartum care coordination services and care coordination services for children who have not attained the age of 2. A provider of those care coordination services shall provide to a person receiving those services the information relating to shaken baby syndrome and impacted babies required under s. 253.15 (6). The department shall provide reimbursement for those care coordination services only if at least one of the following conditions is met: (a) The recipient is a resident of Milwaukee County or the city of Racine and has received services under s. 49.46 (2) (b) 12. and is pregnant or has given birth within 8 weeks after the individual ceased to receive services under s. 49.46 (2) (b) 12. (b) The recipient is a resident of Milwaukee County or the city of Racine, is pregnant and has received a risk assessment approved by the department. (c) The recipient is a resident of Milwaukee County or the city of Racine, has given birth within the 8 weeks immediately preceding the request for services under s. 49.46 (2) (b) 12m. and has received a risk assessment approved by the department. Section 49.46 (2) (b) 12m. reads: (2) Benefits. . . . (b) Except as provided in pars. (be) and (dc), the department shall audit and pay allowable charges to certified providers for medical assistance on behalf of recipients for the following services: . . . 12m. Prenatal, postpartum and young child care coordination services under s. 49.45 (44). 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. Section 227.24 (1) (a), Stats., reads: (1) Promulgation. (a) An agency may, except as provided in s. 227.136 (1), promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures. |
Statute/s or rule/s that will affect the proposed rule or be affected by it |
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. 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). s |
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 500 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 CCC services Wisconsin MA members who receive CCC 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 440.250(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 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 |
Allie Merfeld Division of Medicaid Services 608-267-4029 Alexandra.Merfeld@dhs.wisconsin.gov |
