Rule-Making Notices
Notice of Hearings
Health Services
NOTICE IS HEREBY GIVEN that pursuant to ss.
227.11 (2) (a) and
253.13 (1) and
(4) (b), Stats., the Department of Health Services will hold a public hearing to consider the emergency rules revising Chapter
DHS 115, relating to screening newborns for congenital and metabolic disorders.
Hearing Information
Date: Friday, August 15, 2014
Time: 2:30 p.m. to 4:30 p.m.
Location: Department of Health Services
1 W. Wilson Street
Room 630
Madison, WI 53701
Accessibility
English
The Department of Health Services is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting Susan Uttech at (608) 267-3561. You must make your request at least 7 days before the activity.
Spanish
The Department of Health Services es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con Susan Uttech al número (608) 267-3561. Debe someter su petición por lo menos 7 días de antes de la actividad.
Hmong
The Department of Health Services yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau Susan Uttech ntawm (608)267-3561. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.
Copies of Rule and Fiscal Estimate — Economic Impact Analysis
A copy of the rules and fiscal estimate may be obtained from the Department of Health Services at no charge by downloading the documents from
www.adminrules.wisconsin.gov or by contacting Susan Uttech, Department of Health Services, 1 W. Wilson Street, Room 218, Madison, WI, (608) 267-3561,
susan.uttech@wi.gov.
Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Susan Uttech, Department of Health Services, 1 W. Wilson Street, Room 218, Madison, WI, (608) 267-3561,
susan.uttech@wi.gov or to the Wisconsin Administrative Rules Website at
http://www.adminrules.wisconsin.gov until
August 15, 2014, 4:30 p.m.
Analysis Prepared by the Department of Health Services
Statute interpreted
Statutory authority
Explanation of agency authority
Section 227.11 (2) (a) 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.
Section 253.13 (1) and (4) (b) reads: (1)
Tests; requirements. The attending physician or nurse licensed under s.
441.15 shall cause every infant born in each hospital or maternity home, prior to its discharge therefrom, to be subjected to tests for congenital and metabolic disorders, as specified in rules promulgated by the department. If the infant is born elsewhere than in a hospital or maternity home, the attending physician, nurse licensed under s.
441.15, or birth attendant who attended the birth shall cause the infant, within one week of birth, to be subjected to these tests.
(4) (b) The department may require reporting in connection with the tests performed under this section for use in statistical data compilation and for evaluation of infant screening programs.
Related statute or rule
See the “Statute interpreted" section.
Plain language analysis
As provided in s.
253.13 (1), Stats. (2011-12), ch.
DHS 115 specifies the congenital and metabolic orders for which newborns must be screened by means of a blood sample shortly after birth and tested by the WSLH.
2013 Wisconsin Act 135 modified s.
253.13 (1), Stats., relating to infant blood tests to provide that the required screening may be performed by methods in addition to blood testing. Under this emergency order the department revises ch.
DHS 115 to conform the rules to s.
253.13, Stats.
The emergency order adds CCHD and OA as conditions for which newborns must be tested. CCHD is usually described as those congenital cardiac malformations in which surgical or catheter-based therapy is necessary within the first months of life, and is screened for by use of pulse oximetry. In September 2010, the federal Department of Health and Human Services' Discretionary Advisory Committee on Heritable Disorders in Newborns and Children added CCHD to its Recommended Uniform Screening Panel Core Conditions. To date, 35 states have added CCHD screening to their newborn screening panel.
OA is
a group of inherited disorders that lead to an abnormal buildup of particular acids known as organic acids in the body for which the WSLH currently tests newborns. Though the criteria under s.
DHS 115.06 was met for OA to be added to the list of congenital and metabolic disorders for which WSLH must test blood samples, the disorders were inadvertently omitted from subsequent revisions of s.
DHS 115.04.
The department intends to promulgate corresponding permanent rules to replace these emergency rules, except that the department intends to also propose, as permitted under s.
253.13 (4), Stats., reporting requirements in the proposed permanent rules.
Summary of, and comparison with, existing or proposed federal regulations
There appears to be no existing or proposed federal regulations that address the activities to be regulated by the emergency rules.
Comparison with rules in adjacent states
For the past ten years Illinois, Iowa, Michigan, and Minnesota have mandated that newborns be screened for organic acidemias to include propionic acidemia and methylmalonic acidemia as part of their state's newborn screening program. Also, each of these four states require by law that newborns be screened for CCHD using pulse oximetry screening and provide reports on all pulse oximetry results if sufficient funds are available to do so. Only Iowa has an administrative rule for CCHD.
Illinois:
Illinois 410 ILCS 240/1.10 (b) “The Department shall require that screening tests for critical congenital heart disease be performed at birthing hospitals and birth centers in accordance with a testing protocol adopted by the Department, by rule, in line with current standards of care, such as pulse oximetry screening…" 77 Ill. Adm. Code 661.10 Responsibility for Screening explains that a Genetic and Metabolic Diseases Advisory Committee will recommend to the Department when an additional disorder should be added to the screening panel. Implementation of the Department's determination is subject to that determination's adoption by rule. This process is similar to Wisconsin's procedure for adding a disorder.
Iowa:
Iowa Code s. 136A.5A requires that each Iowa newborn “shall receive a critical congenital heart disease screening by pulse oximetry or other means as determined by rule, in conjunction with the metabolic screening required pursuant to section 136A.5A." Section 136.5A was added as part of 2013 Act, Ch.
140 Section 91 and Section 92 to address critical congenital heart disease screening; however the administrative rule is not yet written. Administrative Code 641 IAC 4.3 (1) states that CCHD will be included in the state's newborn screening panel as included in the recommended uniform screening panel as approved by the United States Secretary of Health and Human Services."
Michigan:
Under Michigan statute, MCLS, s.
333.5431 (1) (i) refers to CCHD generally as “other treatable but otherwise disabling conditions as designated by the department." The Michigan Department of Community Health website lists all (55) of the disorders included in their screening panel which includes CCHD.
Minnesota:
Minn. Stats. s.
144.1251 (1) (a) requires testing and reporting as follows “each licensed hospital or state licensed birthing center or facility that provides maternity and newborn care services shall provide screening for congenital heart disease to all newborns prior to discharge using pulse oximetry screening." The Minnesota Department of Health's procedure for implementation includes: communicating CCHD screening protocol requirements; providing information to hospitals; providing training; establishing the mechanism for required data collection; coordinating implementation of universal standardized screening; and acting as a resources for providers which is similar to Wisconsin's approach.
Summary of factual data and analytical methodologies
The Secretary's Advisory Committee on Newborn Screening (Committee) recommended to the department, and the department concurred with the recommendation to add CCHD to the list of congenital or metabolic disorders for which newborns must be screened.
The WSLH tests newborns OA, a group of inherited disorders that lead to an abnormal buildup of particular acids, known as organic acids, in the body. Though OA was determined to have met the criteria under s.
DHS 115.06 for being added to the list of congenital and metabolic disorders for which WSLH must test the blood samples of newborns, the conditions were inadvertently omitted from the list of conditions in s.
DHS 115.04 during subsequent revisions.
Analysis and supporting documents used to determine effect on small business
The department under this emergency order revises ch.
DHS 115 to conform the rules to s.
253.13, Stats., as revised under
2013 Wisconsin Act 135 so that the required newborn screening may be performed by methods in addition to blood testing. Also under this emergency order, the department adds CCHD and OA to the list of congenital and metabolic disorders for which newborns must be tested. Section
253.13 (1), Stats., requires attending physicians, nurse-midwives, and certified midwives to cause every infant born in Wisconsin to be screened for the congenital and metabolic disorders specified by the department by rule. To comply with s.
253.13 (1), Stats., hospitals, stand-alone birth centers, physicians, nurse-midwives, certified midwives, and other entities (purchasers) purchase newborn screening sample collection cards for $109 from the WSLH for use when obtaining the newborn's blood sample for testing. The addition of CCHD and OA to the list of congenital and metabolic disorders under s.
DHS 115.04 for which newborns must be tested does not increase the current fee or impose any additional fees to purchasers of newborn screening sample collection cards.
Costs to providers for screening for CCHD is indeterminate. Pulse oximetry is the recognized screening method for CCHD. The cost of a reliable hand held device, with a reusable probe, costs about $500, with probe wraps costing about $.60 each. Administering the pulse oximetry testing on newborns averages about three minutes per baby and it is usually conducted by nurses. Some of the costs to providers for screening for CCHD have been mitigated through the Wisconsin SHINE Project (Screening Hearts in Newborns), a pilot project through the University of Wisconsin School of Medicine and Public Health, the Medical College of Wisconsin, the department, and the WSLH , which works to create a safety net for all babies born in Wisconsin by educating healthcare providers, improving access to screening and diagnostic technology, and creating a statewide CCHD screening and data collection system. The Wisconsin SHINE project has supplied pulse oximeters to hospitals and midwives who did not have them.
