DEPARTMENT OF HEALTH SERVICES Office of Legal Counsel | STATE OF WISCONSIN |
STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES |
CHAPTER: | DHS 105 and 107 |
RELATING TO: | School Based Services and School Based Service Providers |
RULE TYPE: |
SCOPE TYPE: |
FINDING OF EMERGENCY: | Preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take to promulgate the permanent rule. The Centers for Medicare & Medicaid services (“CMS”) issued guidance[1] related to implementation of the Bipartisan Safer Communities Act, Public Law 117-159, to encourage states to increase student access to school-based services (“SBS”). Under current policy, for a school to bill Wisconsin medical assistance (“MA”) for SBS and receive federal reimbursement, the MA-enrolled student receiving the SBS must have an individualized education plan (“IEP”), and the SBS must be included in the student’s IEP. The Department intends to implement these new flexibilities through a state plan amendment (“SPA”), which is expected to take effect before the start of the 2025-2026 school year. Provisions in Chapters DHS 105 and 107 currently require that any SBS be included in the MA-enrolled student’s IEP, and they conflict with the changes that will take effect under the SPA. Emergency rules are therefore necessary to ensure the SPA can take effect without issue before the start of the upcoming school year. Emergency rulemaking will further serve public health and welfare by ensuring that more Wisconsin students have access to medically necessary SBS at the start of the 2025 – 26 school year. These SBS include physical and occupational therapies, speech therapy, dental services, behavioral health services, physician and nursing services, and case management services. To date, 25 states[2] have allowed MA coverage for some or all SBS outside of an IEP, including Florida, Tennessee, Georgia, and South Carolina.[3] The Department estimates that expansion of these services could result in schools being able to bill Wisconsin MA for SBS provided to approximately 298,000 more children per school year than under current policy.[4] |
SUMMARY |
Description of rule objective/s |
The Department proposes to revise DHS chs. 105 and 107 to clarify allowable SBS and the providers that can be reimbursed for these services by MA. Based on guidance from CMS, the Department has determined that a SPA is necessary to expand access to covered SBS, and that SPA is expected to take effect in the summer of 2025. The Department’s rules regarding SBS must also be updated to align with the state plan. Specifically, the Department proposes to make the following changes: Revise ch. DHS 105 to clarify the record-keeping requirements for SBS providers and what types of treatment plans may be used to document medical necessity. Revise ch. DHS 107 to clarify the types of SBS that will be reimbursed by MA. Revise ch. DHS 107 to clarify the provider types who may be reimbursed for services provided in school-based settings. |
Existing policies relevant to the rule |
Section 49.45 (39) (am), Stats., directs the department to submit and implement a school medical services SPA to provide for school medical services, including payment for services which are reimbursable under s. 49.46 (2) (b) 14., Stats. Section 49.45 (39) (c), Stats., also states that the department shall promulgate rules establishing specific certification and reporting requirements with respect to school medical services. Section DHS 105.53 describes requirements for MA certification of SBS providers. Subsection (3) of the rule describes record keeping requirements for SBS providers, and paragraph (a), subdivisions 3. and 4. require documentation of a recipient’s IEP and progress toward the goals in the IEP. Because these items are required under s. DHS 105.53 (3) (a) 3. and 4., a student cannot currently receive SBS without an IEP. The multi-step process for obtaining an IEP is burdensome for students, and requiring an IEP in cases where other types of care plans document medical necessity is also inefficient for schools providing SBS. Section DHS 107.36 describes SBS which can be reimbursed by MA: 107.36 (1) (b) to (i) note the requirement of an IEP for listed services to be coverable by MA. This language conflicts with CMS guidance. 107.36 (2) (b) 2. requires that services be identified in a student’s IEP to be medically necessary. This definition precludes MA coverage of any services not identified in a student’s IEP. Some services are not included under covered services in 107.36 (1) or appear as non-covered services under 107.36 (3), which the Department intends to add as covered services under MA. |
Policies proposed to be included in the rule |
Consistent with the forthcoming SBS SPA, the Department proposes to modify chs. DHS 105 and 107 to: Revise record keeping requirements in s. DHS 105.53 (3) to define additional treatment plan types that may be used to document medical necessity beyond IEPs. Revise DHS 107.36 to clarify the types of SBS which may be reimbursed by MA when provided by a covered provider and in accordance with the member’s treatment plan. Revise DHS 107.36 to include additional covered service types, including dental services, case management services, and physician services. Revise DHS 107.36 to clarify the types of providers who may be reimbursed for services provided in school-based settings. |
Analysis of policy alternative |
There are no reasonable alternatives to the proposed rulemaking. The department’s current administrative rules conflict with state plan amendments that are expected to take effect before the start of the 2025-2026 school year. |
Statutory authority for the rule |
Explanation of authority to promulgate the proposed rule |
Under s. 49.46 (2) (b) 14., Stats., the department is required to audit and pay allowable charges to certified MA providers for “school medical services under s. 49.45 (39).” 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., 2., 5., 11., 18., and (10) and 227.11 (2), Stats. |
Statute/s that authorize/s the promulgation of the proposed rule |
Section 49.45 (2) (a) 1., 2., 5., 11., 18., and (10) (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. … 5. Cooperate with the division for learning support in the department of public instruction to carry out the provisions of Title XIX. . . . 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. … 18. Conduct outreach for the early and periodic screening, diagnosis and treatment program as required under 42 CFR 441. This activity is limited to persons under 21 years of age who have been determined to be eligible for medical assistance. . . . (10) Rule−making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. Section 49.46 (2) (b) 14. 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: … 14. School medical services under s. 49.45 (39). Section 227.11 (2), Stats., reads: (2) 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(39) and § 49.46 (2) (b) 14., Stats., relating to the MA benefit of school medical services. Chapter DHS 105, relating to provider certification—specifically ch. DHS 105.53 (3) (a) 3. and 4. and (c) 1., which pertain to the record-keeping requirements for SBS providers, specifically the requirements related to IEPs. Chapter DHS 107, relating to covered services—specifically ch. DHS 107.36 (1) (a) 4., which describes covered service types that are reimbursable by MA and 107.36 (2) (b), which describes limitations on covered services. |
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 |
School districts and MA-enrolled students may be affected by the rule. School districts can receive greater reimbursement for services which are already provided to MA-enrolled students, but which currently cannot be billed to MA. This could result in more school districts using SBS and more students receiving SBS. The additional reimbursement is composed only of additional federal dollars, with no general-purpose revenue impact, and may allow for more effective use of local tax dollars to support schools and school-aged children. |
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule |
Section 11003(a)(1) of the Bipartisan Safer Communities Act, P.L. 117-159,[5]5 (hereinafter “the Act”) directed the Secretary of the Federal Department of Health and Human Services (“HHS”) to issue guidance to state Medicaid agencies and SBS providers to “support the delivery of medical assistance to Medicaid and CHIP beneficiaries in school-based settings.” Section 11003(a)(1)(ii) and (iii) specifically require that said guidance “outline strategies to reduce administrative burdens on, and simplify billing” for schools billing for SBS, and to clarify that payments may be made to schools under Medicaid for services provided in accordance with an IEP or under the policy described in State Medicaid Director Letter #14-006. That letter concluded that Medicaid reimbursement was available for covered services under a valid state plan, regardless of whether there is any charge for the service to the beneficiary or the community at large.[6] In accordance with section 11003(a)(1) of the Act, CMS’s guidance concluded that “…services furnished in schools may be covered by Medicaid even if the services are not outlined in a Medicaid-enrolled child’s plan of care…”[7] Historically, MA-covered SBS were limited to services identified in a MA-enrolled student’s IEP, and IEPs were the only type of plans of care recognized by CMS. This new guidance from CMS allows Wisconsin the flexibility to reimburse for SBS not identified in a student’s IEP. The Department intends to effectuate this change by broadening the MA definition of plans of care that may be used to document medical necessity. CMS specified that if states that have language in their state plans tying coverage of services to an IEP, these states would need to submit a State Plan Amendment to CMS to remove this requirement. Wisconsin is in the process of developing a State Plan Amendment to this effect and intends to submit this amendment for an effective date of July 1, 2025. Billing for SBS based on the changes in the SPA is not expected to commence until the middle of August 2025, and new rules need to take effect before then. |
Anticipated economic impact, locally or statewide |
The proposed rule may have a moderate economic impact. |
Agency contacts |
Allie Merfeld Division of Medicaid Services 608-267-4029 Alexandra.Merfeld@dhs.wisconsin.gov |
