DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin department of health services proposes an order to: renumber and amend DHS 75.03 (89); amend DHS 34.02 (16) and (23), 34.11 (3) (c), 34.21 (7) (d) (e), and (k), 34.22 (1) (a) (8) (a), (3) (b) (intro.), (3) (c) 3., and (5)., 34.23 (3) (a), 34.26 (1) (a) and (c), 35.03 (2), 35.07 (2), 36.11 (1) (b) 2., 36.17 (2m) (b), 40.08 (7) (a) (intro.), 40.10 (2), 50.09 (4) and (5), 50.12 (5) (d), (6) (a)(intro.), 63.02(19), 63.06 (5) (d) 1. and 2., (6) (a) 1. to 4. and (b) 1. to 3., 75.12 (2); and create DHS 34.02 (8m), (16m), (20m), and (21m), (23) (Note), 34.21 (8) (a) (11), 34.22 (3) (b) 4. and 5., 35.03 (8m), (18m), and (22hm), 35.15 (2) (b) 7m., 36.03 (10r), (11m), (28m), and (32m), 36.07 (5) (t), 36.19 (1m), 40.03 (18m), (49m), and (51m), 40.07 (1) (fm), 40.14 (1) (b) 6m., 50.02 (10m), (19g), and (19r), 50.06 (11m), 61.021 (4m) and (13m), 61.075, 63.02 (13m), (18m), and (20), 63.06 (5) (d) 2m., (6) (a) (6), 63.09 (5), 75.03 (38m), (89) (b) and (c), relating to Division of Care and Treatment Services telehealth.
RULE SUMMARY
Statute interpreted
Not applicable.
Statutory authority
The department is authorized to promulgate the proposed telehealth rules based upon the following:
Sections 227.11 (2) and 49.45 (61) (d), Stats. The department is authorized to promulgate rules for each rule chapter specified in this order as follows:
Explanation of agency authority
The department’s authority to promulgate the proposed rules is provided in ss. 227.11 (2) and 49.45 (61) (d), Stats., and 2019 Wis. Act 56 (“Act 56”) s. 8 (3).
Section 49.45 (61), Stats., created by Act 56, directs the department to provide reimbursement under Medical Assistance for telehealth services specified in par. (b) and subds. (c) 1. to 3. Subdivision (c) 4 provides that the department shall reimburse under Medical Assistance “any service that is not specified in subds. 1. to 3. or par. (b) that is provided through telehealth and that the department specifies by rule.” Paragraph (d) provides that the department “shall promulgate rules specifying any services under par. (c) 4. that are reimbursable under Medical Assistance. The department may promulgate rules excluding services under par. (c) 1. to 3. from reimbursement under Medical Assistance. The department may promulgate rules specifying any telehealth service under par. (b) or (c) 1. or 2. that is provided solely by audio-only telephone, facsimile machine, or electronic mail as reimbursable under Medical Assistance.”
Related statute or rule
The following statutes or rules directly relate to reimbursement of many Medical Assistance services when delivered by means of telehealth and communications technology services:
Plain language analysis
In Act 56, the Wisconsin Legislature directed reimbursement of many Medical Assistance services when delivered by means of telehealth and communications technology services. It directs the department to reimburse Medical Assistance certified providers for services provided through asynchronous telehealth, interactive telehealth, and remote patient monitoring services, including for federally recognized Medicare telehealth services, remote physiological monitoring, remote evaluation of prerecorded patient information, brief communication technology-based, and care management services. It also directs the department to identify certain Medical Assistance reimbursable telehealth services and authorizes the department to identify certain Medical Assistance non-reimbursable telehealth services in administrative code. The department’s Division of Medicaid Services is proposing amendments to Chapters DHS 101, 105, 106 and 107 to comport with Act 56. The services covered in Chapters DHS 34, 35, 36, 40, 61, 63, and 75 are eligible for reimbursement for certain services provided from Medical Assistance. These rule chapters need to be amended to align with the proposed changes to Chapters DHS 101, 105, 106, and 107. Summary of, and comparison with, existing or proposed federal regulations
Federal law does not establish distinct requirements for Medical Assistance program reimbursement of services provided via telehealth. Instead, the Medical Assistance program may reimburse services provided via telehealth when the underlying service provided meets federal laws and policies. The Centers for Medicare and Medicaid Services (CMS) looks to and generally models its definition of telehealth on the Medicare definition of telehealth services.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) also applies to services provided via telehealth. Applicable HIPAA requirements include the privacy and security rules to ensure the protection of protected health information transmitted and stored. In order to comply with these requirements, providers must ensure that the platforms used to provide services via telehealth contain adequate security measures.
During the emergency period, as defined in s. 1135 (g) (1) (b) of the Social Security Act, 42 U.S.C. § 1320-5 (g) (1) (b) and declared in response to the COVID-19 pandemic, the federal Department of Health and Human Services granted a number of flexibilities relating to services provided via telehealth. These flexibilities include not penalizing providers for using platforms that do not comply with HIPAA requirements, encouraging the reimbursement of services provided via telehealth under the Medical Assistance program, and expanding the scope of reimbursable telehealth services under the Medicare program.
Comparison with rules in adjacent states
Illinois:
305 ILCS 5/5-5.25 (b)-(c) authorizes permanent reimbursement of behavioral health services provided via telehealth when provided by a certain state certified provider. Illinois regulations permanently authorize reimbursement of asynchronous and real-time video services provided via telehealth under certain conditions. These conditions include requiring a certified professional to be present at the originating site at all times, the distant site provider to be a certified professional, and the communication platform to be capable of allowing for proper diagnosis and transmission of clearly audible heart tones and lung sounds, clear video of the patient and diagnostic tools. It also excludes group psychotherapy via telehealth from reimbursement. 89 IL Adm. Code 140.403.
During the federal COVID-19 public health emergency, Illinois laws were temporarily expanded to authorize reimbursement of additional telehealth services authorized by the federal government. 305 ILCS 5/1.5 Illinois regulations were also temporarily expanded to authorize reimbursement of audio-only telephone communication and online portal communications initiated by an established patient. A certified professional is not required to be present at the originating site. Additionally, providers are not required to be certified by the Illinois Medical Assistance program. 89 IL Adm. Code 140.403.
Iowa:
Iowa Code 514C.34 authorizes permanent reimbursement of healthcare services provided via telehealth when provided via an interactive audio and video platform and the services meet legal and generally accepted healthcare practices and standards. Services provided via telehealth are to be reimbursed at the same rate as services provided in-person. Iowa regulations authorize reimbursement of services via telehealth that meet professional standards. IA Rule 441-78.55(294A). The Iowa board of medicine authorizes provision of services via telehealth with or without the presence of a health care provider with the member and holds providers to the same standards of care and professional ethics in-person services. IA Rule 653-13.11(147,148,272C).
Michigan:
Michigan Complied Laws ss. 330.1100d, 333.16283, 333.16285, 400.1 to 400.119b, 550.3476, and 550.1401k authorize reimbursement of healthcare services provided via telehealth when provided through real-time, interactive audio or video or asynchronously with HIPAA privacy and security rule compliant platform. Services may be provided at a provider site, a school, or a member’s home, with member consent, and accessible follow-up services. Minnesota:
Minnesota Statues ss. 256B.0625 subd. 3b. and 147.033 authorize permanent reimbursement of healthcare services provided via telehealth when provided through real-time, interactive audio and visual communications and asynchronous services if provided “in the same manner as if the service or consultation was delivered in person.” Services provided via telehealth must be reimbursed at the same rate as service provided in person and are generally limited to three visits per calendar week. Provider-to-provider consultations via telephone, email or facsimile and member-to-provider communications via email or facsimile are not reimbursable. With limited exceptions, physicians that do not practice in but are registered in Minnesota may be reimbursed for services provided via telehealth if they are in good standing outside of Minnesota. Minn Stat. s. 147.032. Minnesota regulations authorize reimbursement of mental health services via telehealth when provided via two-way interactive video and the equipment and connection comply with Medicare standards. (Minn. Adm. Code s. 9505.0371.
Summary of factual data and analytical methodologies
The department formed an advisory committee to advise on changes to DHS 101, 105, 106, and 107 related to 2019 Wis. Act 56. This committee included representatives of ABC for Health, Inc.; Bad River Health & Wellness Center; Disability Rights Wisconsin, Inc.; The Hamilton Consulting Group, LLC; LeadingAge Wisconsin, Inc.; Pharmacy Society of Wisconsin, Inc.; Wisconsin Assisted Living Association, Inc.; Wisconsin Association of Family & Children’s Agencies, Inc.; Wisconsin Association of Health Plans, Inc.; Wisconsin County Human Service Association, Inc.; Wisconsin Hospital Association, Inc.; Wisconsin Medical Society, Inc.; and Wisconsin Primary Health Care Association, Inc. Advisory committee members were provided a copy of draft language of the proposed rules and asked to provide comments.
While this advisory committee did not specifically address DHS 34, 35, 36, 40, 63, and 75, they did address the impact of telehealth changes to Medicaid-reimbursable behavioral health services which are applicable to the rules covered in this proposed rule order. Analysis and supporting documents used to determine effect on small business
The department solicited the input of Medical Assistance providers, including small businesses, throughout the telehealth policy and proposed rule change process.
Effect on small business
The proposed rule changes have the potential to impact Medical Assistance providers that are small businesses. These providers have the opportunity to provide covered services via telehealth, which expands the pool of potential members and services provided beyond that potentially available for traditional in person services but must ensure that the technology used meets applicable federal and state standards. These providers may also experience increased competition from non-local providers providing similar covered services, including out-of-state providers who meet certification criteria.
Agency contact person
Statement on quality of agency data
See summary of factual data and analytical methodologies.
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 34.02 (8m) is created to read:
DHS 34.02 (8m) “Functionally equivalent” means a service provided via telehealth where the transmission of information is of sufficient quality as to be the same level of service as an in-person visit. Transmission of voices, images, data, or video must be clear and understandable.
