DepartmenT of Health Services Office of Legal Counsel | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT EMERGENCY RULES |
The Wisconsin Department of Health Services proposes an order to amend DHS 13.03 (11) (Note); and create DHS 31, 105.529, and 107.13 (9), related to crisis urgent care and observation facilities.
FINDING OF EMERGENCY
An emergency rule is necessary to protect the public peace, safety, and welfare. Wisconsin currently has a behavioral health crisis. The suicide rate among Wisconsin residents increased by 38% from 2000 to 2022 and the number of unique individuals receiving crisis services has increased 71% from 2013 to 2021. Yet 44% of Wisconsin adults do not have access to a crisis stabilization facility, 36% do not have access to 24/7 mobile crisis services, and 66% of county crisis programs report staffing shortages. Specific to emergency detentions, an analysis by the Department of Health Services’ Office of Policy Initiatives and Budget found that while overall emergency detentions decreased 21% from 2013 to 2021, the number of emergency detentions at Winnebago Mental Health Institute (WMHI) increased 133% over that same time. WMHI estimates that in 2023, 38% of their admissions were hospitalized for 72 hours or less. Based on a 2019 Wisconsin Department of Justice survey, the average officer time spent responding to a mental health incident—which, notably, includes transporting the individual to WMHI—is nine hours. This data suggests that there is a shortage of accessible, facility-based crisis services and WMHI is serving as a default placement in lieu of more effective, efficient, and less restrictive options. Creating crisis urgent care and observation facilities through this administrative rule project will increase access to less restrictive crisis intervention services and promote the best practice of integrated crisis care to treat co-occurring mental health and substance use related needs. This critical component of crisis services is a proactive step to attempt to reduce unnecessary inpatient hospital admissions and decrease law enforcement time spent on crisis response. Providing persons experiencing a crisis prompt, accessible care, at the right time and in the right place is essential in improving the overall health of the populace and reducing more restrictive, costly, and time-consuming interventions.
If approved in accordance with Ch. 227, Stats., the proposed emergency rule will be replaced by a corresponding permanent rule, and the rulemaking process will be concurrent. RULE SUMMARY
Statutes interpreted
Statutory authority
Explanation of agency authority
Section 51.036 (4) authorizes the Department to promulgate rules to implement s. 51.036, Stats. Broadly, s. 51.036, Stats., relates to crisis urgent care and observation facilities (“CUCOFs”), which are a new type of treatment facility that admits an individual to prevent, de-escalate, or treat an individual in crisis due to behavioral health, mental health, or substance use issues. Subsection (4) of the statutes specifically directs the Department to establish rules regarding all of the following:
(1) A grant program in accordance with s. 51.036 (2), Stats. (2) Requirements for a CUCOFs awarded a grant under 51.036 (2) to match those funds with a non-state, federal, or third-party revenue source. See also s. 51.036 (2) (c) 10., Stats. (3) Requirements for admitting, holding, and discharging individuals held on emergency detentions under s. 51.15, Stats. (4) Minimum security requirements for CUCOFs.
(5) The range of beds allowed in a CUCOF.
(6) Policies and criteria that a CUCOF must have regarding emergency detentions, including when law enforcement or a person authorized to transport may drop an individual off at a CUCOF.
(7) Policies for interfacility transfers initiated at a CUCOF.
(8) Procedures for communicating bed availability at a CUCOF before an individual is transported there.
(9) Policies for coordination between a CUCOF and a facility established or operated with settlement funds from the national opiate litigation under s. 165.12, Stats. (10) Procedures for coordinating continuity of care between a CUCOF and a hub-and-spoke home health pilot program or any other appropriate transition facility for any patient treated at a CUCOF for 5 or fewer days.
(11) Policies and procedures for admitting adults and, if applicable, youth at a CUCOF, including requirements that youth be treated in a separate part of the facility from adults.
(12) Staffing level requirements at a CUCOF.
(13) Requirements to define the population served at a specific CUCOF, including minimum age requirements.
When certified in accordance with s. 51.036, Stats., these facilities meet the definition of a “crisis intervention service” under s. 49.45 (41) (a) 1., Stats., and certain services provided in a certified CUCOF are reimbursable under Medical Assistance (“MA”). See s. 49.46 (2) (b) 15., Stats. As the single state agency for administering MA in Wisconsin, the Department is authorized under s. 49.45 (2) (a) 11. to create rules establishing criteria for certification of MA providers, setting conditions of participation and reimbursement, and promulgating rules “consistent with its duties in administering [MA].” Section 49.45 (10), Stats., further authorizes the Department to “promulgate such rules as are consistent with its duties in administering [MA]. In accordance with the grants of authority under ss. 51.036 (4), 49.45 (2) (a) 11. and (10), Stats., the Department has determined that rules in addition to the specific items listed under s. 51.036 (4) (a) to (m), Stats., rules are necessary to implement s. 51.036, Stats., and “establish a certification process for [CUCOFs],” under s. 51.036 (2) (a), Stats. Additionally, s. 51.04, Stats., provides that the Department “shall annually charge a certification fee for each certification [of a treatment facility].” A CUCOF meets the definition of a “treatment facility” under s. 51.01 (19), Stats. Finally, s. 51.036 (2) (a), Stats., provides that the Department may limit the number of CUCOFs certified and directs the Department to include statewide geographic consideration[s] in its evaluation of applications for CUCOF certifications. Section 51.036 (2) (c), Stats., includes specific items a CUCOF application must contain. Rules are required to codify these directives from the Legislature. Related statute or rule
Plain language analysis
The proposed rules seek to create a mechanism for regulating CUCOFS in accordance with s. 51.036, Stats. CUCOFs are a new facility type to serve adults and may serve youth who are experiencing a crisis related to behavioral, mental health, or substance use challenges. CUCOFs provide facility-based crisis intervention services 24 hours a day, seven days a week for both voluntary persons arriving as walk-ins and persons subject to emergency detention under s. 51.15, Stats. Crisis services provided at a CUCOF can be accessed by voluntarily with or without a referral. Services are delivered by a multi-disciplinary team and are designed to identify and de-escalate the presenting crisis and reduce associated symptoms. A stay at a CUCOF is intended to be short term and not exceed five days. Crisis services available are provided to persons to the extent and duration they need them. CUCOFs collaborate with county emergency mental health programs, law enforcement, outpatient and inpatient providers, and other related partners to coordinate care for persons needing services. A CUCOF is not regulated as a hospital, except to the extent the facility is otherwise required due to the facility's licensure or certification for other services or purposes. Section 51.036, Stats. does not prohibit, limit, or otherwise interfere with services provided by a county or a hospital or other facility consistent with the facility's existing licensure or certification, whether the facility is publicly or privately funded. Section 51.036, Stats., was created by 2023 Wis. Act 249 to help address a statewide lack of accessible and urgent facility-based care for persons experiencing a crisis related to behavioral, mental health, or substance use. Due to the shortage, many individuals in crisis either do not receive adequate care, or they are transported to WMHI, where they may receive more restrictive care than necessary. Adding CUCOFs as an available facility to accept involuntary and voluntary admissions will help decrease time and resources spent by law enforcement and other emergency personnel who coordinate placement and care for persons in crisis. Act 249 was supported by mental health providers and related community partners as an appropriate and additional option to address gaps in the current crisis continuum. As a newly created facility type, there are no existing rules for CUCOFs. The proposed rules seek to create ch. DHS 31, will include all of the following in relation to CUCOFs: (1) general certification requirements.
(2) ongoing certification compliance requirements, including annual treatment facility certification fees under s. 51.04, Stats. (3) program requirements related to staffing, admissions, transfers, services, and client rights
(4) physical building requirements
(5) grant program requirements.
In accordance with s. 51.036 (2) (a), Stats., the Department initially expects to certify 1 or 2 CUCOFs across the state. The geographic location of initial applicants will be considered as it relates to statewide need and resource availability. Certifications will be prioritized for applicants located at least 100 miles from WMHI and those in the state defined western region. Because services rendered at a certified CUCOF may be reimbursed under MA, the proposed seek to create s. DHS 105.529 to require that a facility be certified under ch. DHS 31 as a CUCOF in order to be reimbursed under MA. Additionally, the proposed rules seek to create s. DHS 107.13 (9) to identify covered services provided in a certified CUCOF. Summary of, and comparison with, existing or proposed federal regulations
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.
Comparison with rules in adjacent states
Illinois:
Illinois certifies triage centers and crisis stabilization units through Ill. Admin. Code tit. 77 p. 380. Under section 380.300 of these rules, “triage centers shall provide an immediate assessment of consumers who present in psychiatric distress, as an alternative to emergency room treatment or hospitalization, and shall connect the consumer with community-based services and treatment when considered necessary”. Under section 380.310 of these rules, crisis stabilization units “shall provide safety, structure and the support necessary, including peer support, to help a consumer to stabilize a psychiatric episode”. Triage centers are similar in that they are intended to provide immediate assessment of clients in crisis as an alternative to an emergency room or hospitalization and provide connections and referrals to other community-based treatment services. Triage centers are different in that they do not accept law enforcement referrals or involuntary admissions and have a maximum length of stay of 23 hours. Crisis stabilization units are similar to CUCOFS in that they are intended to assist in stabilizing persons with acute psychiatric symptoms. Crisis stabilization units are different from CUCOFs in that they do not accept involuntary persons and have a maximum length of stay of 21 days. Iowa:
Iowa certifies crisis stabilization residential services through Iowa Admin. Code r. 441-24.39 (225C). Under these rules, crisis stabilization residential services are short-term services provided in facility-based settings of no more than 16 beds. The goal of these facilities is to stabilize and reintegrate the individual back into the community. Crisis stabilization residential services are similar in that the intended length of stay is less than five days. Crisis stabilization residential services are different from CUCOFs because that they do not admit involuntary individuals.
