Notices of Public Hearing and Comment Period for Statements of Scope

Jurisdiction
Wisconsin
Publication
Issue 776A3
Published August 17, 2020
Rule Type
Notice
Issuing Body
Department of Health Services

Notice Text

SS 061-20 Notice of Hearing Department of Health Services (DHS) Administrative Code Chapter Groups Affected: Chs. DHS 1-19; Management and Technology and Strategic Finance Chs. DHS 30-100; Community Services Chs. DHS 101-109; Medical Assistance Administrative Code Chapters Affected: Ch. DHS 10 (Revised) Ch. DHS 38 (Revised) Ch. DHS 73 (Revised) Ch. DHS 92 (Revised) Ch. DHS 101 (Revised) Ch. DHS 105 (Revised) Ch. DHS 106 (Revised) Ch. DHS 107 (Revised) Ch. DHS 108 (Revised) Ch. DHS 109 (Revised) Related to: Telehealth Hearing Date: Thursday, August 27, 2020 Notes: Due to concerns about COVID-19, this hearing will be held via Zoom meeting Comment on this scope statement (through 8/27/2020) Related documents: SS 061-20 Scope Statement NOTICE OF PUBLIC HEARING Chapter DHS 10, 38, 73, 92, 101, 105, 106, 107, 108, and 109 Clearinghouse Rule Number CR SS 061-20 NOTICE IS HEREBY GIVEN that the Department of Health Services will hold a public hearing to consider amendments to DHS 10, 38, 73, 92, 101, 105, 106, 107, 108, and 109, relating to Medical Assistance program telehealth services. HEARING INFORMATION Date and Time Location Thursday, August 27, 2020 Zoom Meeting from 9:00 a.m. to 10:00 a.m Join via phone: 312-626-6799, 646-558-8656, 301 715 8592, 346-248-7799, 669-900-9128, or 253 215 8782 Join via Zoom: https://dhswi.zoom.us/j/94737777068 Meeting ID: 947 3777 7068 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 Laura Brauer at 1 608 266 5368. 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 Laura Brauer al número 1-608-266-5368. 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 Laura Brauer ntawm 1-608-266-5368. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd. ANALYSIS AND TEXT OF THE RULE Analysis of the rule and the proposed rule text may be accessed at: https://docs.legis.wisconsin.gov/code/scope_statements/all/061_20 PLEASE NOTE: The most recent version of the proposed rule text may be obtained by accessing: Permanent Rules: https://www.dhs.wisconsin.gov/rules/permanent.htm Emergency Rules: https://www.dhs.wisconsin.gov/rules/emergency.htm FISCAL ESTIMATE-ECONOMIC IMPACT ANALYSIS The fiscal estimate and economic impact analysis for the rule may be accessed at: not applicable PUBLIC COMMENTS AND DEADLINE FOR SUBMISSION Comments may be submitted to the Department until 8/27/2020 by: 1. Accessing: Permanent Rules: https://www.dhs.wisconsin.gov/rules/permanent.htm Emergency Rules: https://www.dhs.wisconsin.gov/rules/emergency.htm 2. Submitting a comment through the Wisconsin State Legislature's website: http://docs.legis.wisconsin.gov/code/chr/comment. 3. Mailing written comments to: Laura Brauer Division of Medicaid Services P.O. Box 309 Madison, WI 53701-0309 INITIAL REGULATORY FLEXIBILITY ANALYSIS The proposed rule will amend DHS 10, 38, 73, 92, 101, 105, 106, 107, 108, and 109 SMALL BUSINESS REGULATORY REVIEW COORDINATOR Laura Brauer Division of Medicaid Services P.O. Box 309 Madison, WI 53701-0309 AGENCY CONTACT PERSON Laura Brauer Division of Medicaid Services Phone: 1-608-266-5368 Email: DHSDMSAdminRules@dhs.wisconsin.gov Wisconsin Legislature Scope Statement SS 061-20 Status: Active Department of Health Services (DHS) Administrative Code Chapter Groups Affected: Chs. DHS 1-19; Management and Technology and Strategic Finance Chs. DHS 30-100; Community Services Chs. DHS 101-109; Medical Assistance Administrative Code Chapters Affected: Ch. DHS 10 (Revised) Ch. DHS 38 (Revised) Ch. DHS 73 (Revised) Ch. DHS 92 (Revised) Ch. DHS 101 (Revised) Ch. DHS 105 (Revised) Ch. DHS 106 (Revised) Ch. DHS 107 (Revised) Ch. DHS 108 (Revised) Ch. DHS 109 (Revised) Related to: Telehealth Text: Text of SS 061-20 Date Statement Approved by Governor: June 4, 2020 Date Statement Expires Under s. 227.135 (5), Stats.: December 8, 2022 Documents filed SS 061-20 (PDF: ) SS 061-20 Scope Statement (PDF: ) SS 061-20 Notice of Hearing (PDF: ) Register Entries
Date Register File
6/8/2020 774A2, Statements of Scope SS 061-20
8/17/2020 776A3, Notices of Public Hearing and Comment Period for Statements of Scope SS 061-20 Scope Statement
8/17/2020 776A3, Notices of Public Hearing and Comment Period for Statements of Scope SS 061-20 Notice of Hearing
/code/scope_statements/all/061_20 SS 061-20 Scope Statement Department of Health Services (DHS) Administrative Code Chapter Groups Affected: Chs. DHS 1-19; Management and Technology and Strategic Finance Chs. DHS 30-100; Community Services Chs. DHS 101-109; Medical Assistance Administrative Code Chapters Affected: Ch. DHS 10 (Revised) Ch. DHS 38 (Revised) Ch. DHS 73 (Revised) Ch. DHS 92 (Revised) Ch. DHS 101 (Revised) Ch. DHS 105 (Revised) Ch. DHS 106 (Revised) Ch. DHS 107 (Revised) Ch. DHS 108 (Revised) Ch. DHS 109 (Revised) Related to: Telehealth Hearing Date: Thursday, August 27, 2020 Notes: Due to concerns about COVID-19, this hearing will be held via Zoom meeting Comment on this scope statement (through 8/27/2020) STATEMENT OF SCOPE WISCONSIN DEPARTMENT OF HEALTH SERVICES CHAPTER: DHS 10, 38, 73, 92, 101, 105, 106, 107, 108, and 109 RELATING TO: Telehealth RULE TYPE: Permanent and Emergency SCOPE TYPE: Original FINDINGS OF EMERGENCY: Not required[1] SUMMARY 1. Description of rule objective/s In 2019 Wis.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 of health services ("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. 2. Existing policies relevant to the rule • Chapter DHS 92 Confidentiality of Treatment Records • Chapter DHS 107 Covered Services 3. Policies proposed to be included in the rule The department intends to promulgate administrative rules necessary to effectuate the purpose of 2019 Wisconsin Act 56, namely reimbursing identified Medical Assistance covered services through telehealth and communications technology services. The act also requires the department to promulgate rules specifying certain reimbursable Medical Assistance telehealth services and authorizes the department to promulgate rules specifying certain non-reimbursable Medical Assistance telehealth services. 4. Analysis of policy alternatives There are no reasonable alternatives to the proposed rulemaking. The Wisconsin Legislature has explicitly directed the department to promulgate rules identifying certain reimbursable Medical Assistance services and therefore authorized the department to promulgate rules identifying certain non-reimbursable Medical Assistance services. 5. Statutory authority for the rule a. Explanation of authority to promulgate the proposed rule 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 s. 8 (3). b. Statutes that authorize the promulgation of the proposed rule Section 227.11 (2), Stats., 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. (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 49.45 (61) (d), Stats., reads: 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. 2019 Wisconsin Act 56 Section 8 (3) reads: RULES REGARDING COVERAGE OF TELEHEALTH SERVICES. The department of health services may promulgate rules allowed under this act as emergency rules under s. 227.24. Notwithstanding s. 227.24 (1) (a) and (3), the department of health services is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the sooner of July 1, 2022, or the date the permanent rules take effect, except that, if the department of health services has submitted in proposed form permanent rules to the legislative council staff under s. 227.15 (1) before July 1, 2022, emergency rules promulgated under this subsection remain in effect until the permanent rules take effect. c. Statute/s or rule/s that will affect the proposed rule or be affected by it • Chapter DHS 10 Family Care • Chapter DHS 38 Substance Abuse Screening, Testing and Treatment for Certain Department Employment and Training Programs • Chapter DHS 73 Selected Fiscal Management Procedures And Standards Under The Community Options Program And Medical Assistance Home And Community-Based Services Waiver • Chapter DHS 92 Confidentiality of Treatment Records • Chapter DHS 101 Introduction and Definitions • Chapter DHS 105 Provider Certification • Chapter DHS 106 Provider Rights and Responsibilities • Chapter DHS 107 Covered Services • Chapter DHS 108 General Administration • Chapter DHS 109 Senior Care 6. 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. 7. 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 • Members receiving Medical Assistance services • Providers providing Medical Assistance services • Medical Assistance health maintenance and managed care organizations • Hospitals and healthcare facilities, including federally qualified health centers, community health centers, rural health centers, state run facilities, and opioid treatment programs • Tribal governing bodies and providers • The department of health services • The department of public instruction • The department of corrections • County departments and administering agencies designated by county departments • Local education agencies 8. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule 42 USC s. 1396a(a)(30)(A) requires that states "assure that [Medical Assistance] payments are consistent with efficiency, economy, and quality of care." 42 USC s. 1395m(m)(1) requires that reimbursable Medical Assistance services include "telehealth services that are furnished via a telecommunications system by a physician . . . or a practitioner . . . to an eligible telehealth individual." 42 CFR p. 440.70(f)(6) states that certain Medical Assistance covered face-to-face home health services "may occur through telehealth services, as implemented by the State." 9. Anticipated economic impact, locally or statewide The proposed rule may have a moderate economic impact. 10. Agency contacts Laura Brauer Division of Medicaid Services (608) 266-5368 DHSDMSAdminRules@dhs.wisconsin.gov 1 2019 Wis. Act 56 s. 8 (3) permits the department to promulgate emergency rules under s. 227.27 (1) (a), Stats., without providing evidence that such a rule is necessary to preserve the public peace, health, safety, or welfare.