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 107.24 (1), (2) (a), and (c) 1., 4., 6.,, (3) (g), and (h) 4., and (5) (b); and to create ss. DHS 101.03 (28g) and (28m); DHS 105.54; and DHS 107.24 (1) (b), (2) (a) 2., (2) (c) 9., (3) (i), (3) (j), and (4) (i), relating to the use of complex rehabilitation technology. RULE SUMMARY
Statute interpreted
The Department is authorized by 2017 Wis. Act 306 to promulgate rules for use of complex rehabilitation technology by recipients of Medical Assistance, including defining complex rehabilitation technology, defining provider certification for providers, and defining the circumstances under which complex rehabilitation technology may be covered or reimbursed by Medicaid fee-for-service and managed care organizations. Statutory authority
The Department’s authority to promulgate the proposed rules is provide in s. 49.45 (9r), Stats. Explanation of agency authority
The Department’s authority to promulgate the proposed rules is explicitly granted by the Legislature in s. 49.45 (9r) (b), Stats., and in 2017 Wis. Act 306, Section 3. Related statute or rule
Plain language analysis
The intent of the proposed rules is to establish rules defining complex rehabilitation technology, defining provider certification for complex rehabilitation technology suppliers, and identifying the circumstances under which complex rehabilitation technology may be covered or reimbursed by Medicaid fee-for-service and managed care organizations as directed by the Legislature in 2017 Wis. Act 306.
Summary of, and comparison with, existing or proposed federal regulations
42 CFR 440.70(b)(3) requires that states provide medical equipment, including durable medical equipment of which complex rehabilitation technology is a subset, suitable for use in the home as home health services and that this equipment be reviewed by a physician annually.
42 CFR 441.15 requires that states provide medical equipment, including durable medical equipment of which complex rehabilitation technology is a subset, as home health services.
“Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Fee Schedule Amounts, DMEPOS Competitive Bidding (CBP) Proposed Amendments, Standard Elements for a DMEPOS Order, and Master List of DMEPOS Items Potentially Subject to a Face-to-Face Encounter and Written Order Prior to Delivery and/or Prior Authorization Requirements,” 84 Fed. Reg. 151,38330 (2019) proposes to change 42 CFR 414.234(b) to establish a master list of durable medical equipment, of which complex rehabilitation technology is a subset, requiring a face-to-face encounter with a provider, written authorization or prescription, and prior authorization in order to be a covered Medicare service.
“Medicare Program: Modernizing and Clarifying the Physician Self-Referral Regulations,” 84 Fed. Reg. 201,55766 (2019) proposes to change 42 CFR 411.351 and 441.357 to exclude durable medical equipment suppliers from being value-based enterprise participants. Comparison with rules in adjacent states
Illinois:
As of August 15, 2019, the state has rules related to the provision of durable medical equipment services, of which complex rehabilitation technology is a subset, under 225 Ill. Stat. 51, 305 Ill. Stat. 5, 50 Ill. Adm. Code Part 2019, 68 Ill. Adm. Code Part 1253, 89 Ill. Adm. Code Part 120, 89 Ill. Adm. Code Part 140, and 89 Ill. Adm. Code Part 590. These services must be prescribed by a physician and certain types of durable medical equipment require a face-to-face encounter in order to qualify for coverage. Equipment providers must be licensed, including requirements to maintain a physical facility, inventory, patient records, and liability insurance. Durable medical equipment providers must also be accredited by an organization approved by the Centers for Medicare & Medicaid Services and recognized by the state. Additionally, prior authorization is required for certain durable medical equipment, such as repair of wheelchairs costing more than $400.
Iowa:
As of August 1, 2019, the state has rules related to the provision of medically necessary durable medical equipment, of which complex rehabilitation technology is a subset, under 441 IAC ch. 78. These services must be prescribed by a physician, physician assistant, or advanced registered nurse practitioner. Services must also be provided by a durable medical equipment dealer or pharmacy when available in the community in which services are being provided. Michigan:
As of August 1, 2019, there appear to be no rules in the state that address the activities to be regulated by the proposed rules.
Minnesota:
As of August 6, 2019, the state has rules related to the provision of medically necessary durable medical equipment, of which complex rehabilitation technology is a subset, under Minn. Stat. chs. 62Q, 147, 147A, 148, and 256B and Min. Rules chs. 9505 and 9525. These services must be prescribed by a physician or licensed practitioner, including physician assistants and advanced practice registered nurses. Services must generally be provided by a certified provider that does not have a financial relationship with the ordering physician or licensed practitioner and have been granted prior authorization when the cost exceeds a designated amount. Certified providers must also have a contractual relationship with the county in which services are being provided. In some instances, volume purchases through competitive bidding are required. Summary of factual data and analytical methodologies
The Department formed an advisory committee including representatives of Agnesian Health Shoppe; Center for Independent Living Western Wisconsin, Inc.; Disability Rights Wisconsin; Home Health Medical, Inc.; National Coalition for Assistive & Rehab Technology; National Seating & Mobility; North Country Independent Living; Numotion; Security Health Plan; and Walking and Wheeling LLC. Advisory committee members were provided a copy of draft language of the proposed rules and asked to provide comments.
The Department also provided a copy of draft language of the proposed rules to and requested comments from Include, Respect, I Self-Direct (IRIS), long-term care, and Medicaid managed care organizations not represented on the advisory committee.
Analysis and supporting documents used to determine effect on small business
The Department published a solicitation in the Administrative Register from December 23, 2019 to January 6, 2020, in which it requested comments on the economic impact of the proposed rule.
Effect on small business
Based on the economic impact public commenting period and the analysis provided in fiscal estimate and economic impact analysis, the proposed rule is anticipated to have little to no economic impact on small businesses.
Agency contact person
Statement on quality of agency data
The data used by the Department to prepare these proposed rules and analysis comply with s. 227.14 (2m), Stats. Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 101.03 (28g) is created to read:
DHS 101.03 (28g) “Complex rehabilitation technology” means items identified in s. 49.45 (9r) (a) 2., Stats. SECTION 2. DHS 101.03 (28m) is created to read:
DHS 101.03 (28m) “Complex rehabilitation technology professional” means an individual who is certified as an assistive technology professional by the Rehabilitation Engineering and Assistive Technology Society of North America.
SECTION 3. DHS 105.54 is created to read:
DHS 105.54 Qualified complex rehabilitation technology suppliers. (1) Certification. For MA certification, complex rehabilitation technology suppliers shall do all of the following:
(a) Be accredited by a department recognized accrediting organization.
(b) Employ at least one complex rehabilitation technology professional.
(c) Have the capability to service and repair all complex rehabilitation technology provided.
(2) Client services. Complex rehabilitation technology suppliers shall do all of the following:
(a) Require a complex rehabilitation technology professional to be present for evaluation and determination of recipients’ complex rehabilitation technology needs.
(b) Provide recipients’ with written information about how to receive service and repair for complex rehabilitation technology supplied at the time of delivery.
(c) Maintain records of proof of delivery in recipients’ files.
(3) Requirements for managed care organizations. For MA certification, contracts between the department and managed care plans shall require managed care plans to comply with s. 49.45 (9r) (a) 2., Stats., this section, and s. DHS 107.24. SECTION 4. DHS 107.24 (1) is amended to read:
DHS 107.24 (1) Definition. In this chapter,section:
(a) “medicalMedical supplies” means disposable, consumable, expendable or nondurable medically necessary supplies which have a very limited life expectancy. Examples are plastic bed pans, catheters, electric pads, hypodermic needles, syringes, continence pads and oxygen administration circuits; and.
SECTION 5. DHS 107.24 (1) (b) is created to read:
DHS 107.24 (1) (b) “Qualified health care professional” means any of the following:
1. A physician or physician assistant licensed under subch. II of ch. 448, Stats. 3. An occupational therapist licensed under subch. VII of ch. 448, Stats.
