The Department's authority to repeal and recreate these rules is found in ss. 48.67, 49.45 (10), 50.02 (2) (a), 50. 36 (1), 50.95 (1), 51.44 (5) (a), 52.02 (4), 153.75, 227.11 (2) (a), 252.02 (4), 252.04 (1), (2) and (10), 252.07 (11), 254.51 (3) and 255.15 (1m) (c), Stats. The rules interpret ss. 48.62, 48.66, 48.68, 48.75, 49.43 to 49.497, 50.02 (2) (a) and (3), 50.035, 50.36 (1), 50.95 (1), 51.44, 153.05 (5) and (8), 153.45 (3), 153.75, 252.02 (4), 252.04 (1) to (7) and (10), 252.07 (11) and 255.15 (1m), Stats.

If you have any questions about these proposed rule changes or about filing a written petition for a hearing, contact Larry Hartzke, Office of Legal Counsel, P.O. Box 7850, Madison, WI 53707-7850, 608-267-2943 or via email at hartzlr@dhfs.state.wi.us.

This proposed rulemaking order contains a variety of minor revisions to the Department's administrative rules. These revisions have little substantive effect on those regulated by the rules. The Department is issuing these changes in a single order to conserve limited agency resources while making necessary updates and improvements in the Department's body of administrative code.

SECTION 1. HFS 56.02 (2) (a) 1. is amended to read:

HFS 56.02 (2) (a) 1. A licensing agency may grant an exception to any requirement in this chapter if the licensing agency determines that the exception will not jeopardize the health, safety or welfare of the foster children, except that the licensing agency may not grant an exception to any of the following requirements: s. HFS 56.04 (1), (2), (4) (a) 1., 2., 3., 4., 5., 8., or 9. or (b) 2., (6), (7) or (8); s. HFS 56.05 (1) (a), (b) 2., (c) 2., 3., 4., 5., 6., 7. or 9., (d), (f) or , (3) (a) or (4) (a); s. HFS 56.07 (3) (a), (4) (b), (c), (d), (e), (f), (g) or (h), (5) (a), (6) or (10) (a); s. HFS 56.08 (1), (2), (3), (4), (5), (6) (c) 1., 2., 3. or 4. a., (7) (a) 3., (8) (a) 1. or 2., or (c) or (10); s. HFS 56.09 (1), (2) (c), (3), (4) (c) or (d), (5), (9), (11) or (12) (a), (c) or (d); or s. HFS 56.11.

SECTION 2. HFS 83.05 (1) (c) is amended to read:

HFS 83.05 (1) (c) A CBRF for 21 foror more residents shall be licensed as a large CBRF.

SECTION 3. HFS 90.05 (4) (a) and (c) 1. are amended to read:

HFS 90.05 (4) PROCEDURES FOR RECEIVING AND RESOLVING COMPLAINTS ABOUT OPERATION OF THE PROGRAM. (a) 1. Any individual or organization having reason to believe that one or more requirements of this chapter or Part C and its implementing regulations, 34 CFR Pt. 303, are not being met by the department or a county administrative agency or by any other public agency or private provider involved in the early intervention system under agreement with the county administrative agency may complain to the department. The complaint shall be in writing and be signed and shall consist of a statement setting forth the complaint and the facts upon which the complaint is based. The department shall develop procedures to inform parents and other interested individuals and organizations about their right to file a complaint and how to file a complaint.

2. Complaints under subd. 1. shall not concern events that occurred more than one year before the complaint is made, except if the complainant could not have reasonably known about the event any earlier.

(c) 1. Except as provided under subd. 2., within 60 days after receiving a complaint under this subsection the department shall prepare a written decision stating the reasons for the decision, provide notice that the complainant or agency may request review of that decision by the secretary of the U.S. department of education, and forward the decision to the affected agency or agencies with a copy to the complainant.

SECTION 4. HFS 90.06 (2) (m) is repealed.

SECTION 5. HFS 90.08 (3) (b) 3. and 11. are amended to read:

HFS 90.08 (3) (b) 3. Occupational therapists certifiedlicensed under ch. 448, Stats.;

11. Special educatorseducation teachers, including early childhood exceptionalspecial education needs (ECEEN) educatorsteachers, vision educators teachers and hearing educatorsteachers, licensed under ch. 115, Stats., and ch. PI 3through the department of public instruction;

SECTION 6. HFS 90.10 (2) (b) (intro) is amended to read:

HFS 90.10 (2) (b) Provision of services before completing evaluation and assessment. Provision of early intervention services to an eligiblea child and the child's family may be started before the evaluation and assessment are completed if there is a clear and obvious need that can be addressed without waiting for completion of the formal evaluation and assessment and if the following conditions are met:

SECTION 7. HFS 90.11 (1) (b) 7., (3) (b), (6) (a) 4., 10., 11. and 14. are amended to read:

HFS 90.11 (1) (b) 7. Facilitating the development of transition plans under s. HFS 90.10 (5) (h)(f).

(3) (b) With parent consent a third party may be billed for early intervention core servicesevaluation and assessment activities. The service coordinator shall ensure that the parent, prior to giving consent, is informed and understands that because of third party billing the parent may incur financial loss, including but not limited to a decrease in benefits or increase in premiums or discontinuation of the policy.

(6) (a) 4. Occupational therapists shall be certified licensed under s. 448.963 (2)ch. 448, Stats.; and occupational therapy assistants shall be certifiedlicensed under s. 448.963 (3)ch. 448, Stats.;

10. Registered nurses shall be licensed under s. 441.06, Stats., and within 5 years after July 1, 1992, shall have at least a bachelor's degree in nursing from an accredited institution of higher education, and licensed practical nurses shall be licensed under s. 441.10, Stats.;

11. Rehabilitation counselors shall be employed by the department's division of vocational rehabilitation as coordinators of hearing impaired services and have at least a master's degree in rehabilitation counseling or a related field;

14. Special educatorseducation teachers, including early childhood exceptionalspecial education needs (ECEEN) educatorsteachers, vision educators teachers and hearing educatorsteachers, shall be licensed under ch. 115, Stats., and ch. PI 3through the department of public instruction , within 5 years after the effective date of this chapter; and

SECTION 8. HFS 90.12 (6) (e) is amended to read:

HFS 90.12 (6) (e) Civil action. Either party aggrieved by the decision under par. (d) 4. d. may bring a civil action in state or federal court. An action filed in circuit court shall be commenced within 30 days after the date of the written decision. Pursuant to 20 USC 1439 (a) (1) and s. 51.44 (1m) and (5) (a) 4., Stats., the court shall receive the record of the administrative hearing, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of evidence, shall grant whatever relief the court determines is appropriate. Sections 227.52 to 227.58, Stats., do not apply to actions under this paragraph section.

SECTION 9. HFS 101.03 (49) is amended to read:

HFS 101.03 (49) “Drug index" means the list of covered legend and nonlegend drugs and medical supplies maintained and updated by the department.

SECTION 10. HFS 105.01 (3) (intro) is amended to read:

HFS 105.01 (3) GENERAL CONDITIONS FOR PARTICIPATION. In order to be certified by the department to provide specified services for a reasonable period of time as specified by the department, a provider shall truthfully, accurately, completely and in a timely manner do all of the following:

SECTION 11. HFS 105.39 (4) (b) 2. is repealed.

SECTION 12. HFS 105.39 (4) (b) 3. is renumbered HFS 105.39 (4) (b) 2.

SECTION 13. HFS 105.41 (title) and (intro) are amended to read:

HFS 105.41 Hearing aid dealersCertification of hearing instrument specialists. For MA certification, hearing aid dealersinstrument specialists shall be licensed pursuant to ss. 459.05459.01 to 459.14, Stats.

SECTION 14. HFS 105.52 (1) (L) and (2) (a) (intro), 1., 6., 7. and 8. are amended to read:

HFS 105.52 (1) (L) A certifiedregistered nurse or nurse practitioner;

(2) (a) Definition. In this subsection, “qualified professional" means and is limited to any of the following:

1. A nurse practitioner licensed as a certifiedregistered nurse pursuant to s. 441.06, Stats., and currently certified by the American nurses' association, the national board of pediatric nurse practitioners and associates or the nurses' association of the American college of obstetricians and gynecologists' certification corporation;

6. A dieticiandietitian certified or eligible for registration by the commission on dietetic registration of the American dietetic association with at least 2 years of community health experience;

7. A certifiedregistered nurse with at least 2 years of experience in maternity nursing or community health services or a combination of maternity nursing and community health services;

8. A social workerAn employee with at least a bachelor's degree and 2 years of experience in a health care or family services program; or

SECTION 15. HFS 105.53 (3) (a) 3. and 4., (c) 1. and (6) (b) are amended to read:

HFS 105.53 (3) (a) 3. Documentation used to develop the recipient's IEP or IFSP and to annually revise the IEP or IFSP; and

4. Annual documentation of the individual's progress toward treatment goals identified in the IEP or IFSP, changes in the individual's physical or mental status and changes in the treatment plan identified in the IEP or IFSP.

(c) 1. For each service provided, a brief description of the recipient's response to the service and progress toward the treatment goals identified in the IEP or IFSP; and

(6) (b) Coordination with fee–for–service providers. When a recipient receives similar services from both an MA fee–for–service provider and a school–based service provider, the school–based service provider shall document, at least annually, regular contacts with the MA fee–for–service provider, and provide the MA fee–for–service provider with copies of the recipient's IEP or IFSP and relevant components of the multidisciplinary team evaluation under s. 115.80 (3) and (5), Stats., upon request.

SECTION 16. HFS 106.03 (2) (c) and (4) (b) and (c) are amended to read:

HFS 106.03 (2) (c) Whether submitted directly by the provider, by the provider's billing service or by another agent of the provider, the truthfulness, completeness, timeliness and accuracy of any claim are the sole responsibility of the provider.

(4) (b) Where the service requiring prior authorization was provided before the recipient became eligible, and the provider applies to and receives from the department retroactive authorization for the service; or

(c) Where time is of the essence in providing a service which requires prior authorization, and verbal authorization is obtained by the provider from the department's medical consultant or designee. To ensure payment on claims for verbally–authorized services, the provider shall retain records which show the time and date of the authorization and the identity of the individual who gave the authorization, and shall follow–up with a written authorization request form attaching documentation pertinent to the verbal authorization.; or

SECTION 17. HFS 106.06 (8) and (25) are amended to read:

HFS 106.06 (8) CRIMINAL CONVICTION. The provider has been convicted of a criminal offense related to providing or claiming reimbursement for services under medicare or under this or any other state's MA program. In this subsection, “convicted" means that a judgment of conviction has been entered by a federal, state or local court has found the provider guilty, irrespective of whether a judgment of conviction has been entered or an appeal from that judgment is pending;

(25) REFUSAL TO REPAY ERRONEOUS PAYMENTS. The provider has failed to repay or has refused to repay amounts that have been determined to be owed the department either under s. HFS 106.04 (5) or 108.02 (9) or pursuant to a judgment of a court of competent jurisdiction, as a result of erroneous or improper payments made to the provider under the program;

SECTION 18. HFS 107.02 (2m) (a) 10. and (c) are amended to read:

HFS 107.02 (2m) (a) 10. Drugs, except when prescribed by a nurse practitioner under s. HFS 107.122, or a podiatrist under s. HFS 107.14 or an advanced practice nurse prescriber under s. HFS 107.10;

(c) A prescription for specialized transportation services for a recipient not declared legally blind or not determined to be permanently disabled shall include an explanation of the reason the recipient is unable to travel in a private automobile, or a taxicab, bus or other common carrier. TheA prescription for a recipient not declared legally blind or not determined to be indefinitely disabled, as defined under s. HFS 107.23 (1) (c) shall specify the length of time for which the recipient shall require the specialized transportation, which may not exceed 90 days.

SECTION 19. HFS 107.10 (1) and (note) are amended to read:

HFS 107.10 Drugs. (1) COVERED SERVICES. Drugs and drug products covered by MA include legend and non–legend drugs and supplies listed in the Wisconsin medicaid drug index which are prescribed by a physician licensed under s. 448.04, Stats., by a dentist licensed under s. 447.05, Stats., by a podiatrist licensed under s. 448.04, Stats., or by an optometrist licensed under ch. 449, Stats., by an advanced practice nurse prescriber licensed under s. 441.16, Stats., or when a physician delegates prescription the prescribing of drugs to a nurse practitioner or to a physician's assistant certified under s. 448.04, Stats., and the requirements under s. N 6.03 for nurse practitioners and under s. Med 8.08 for physician assistants are met.

Note: The Wisconsin MAmedicaid drug index is available from the State of Wisconsin Document Sales, P.O. Box 7840, Madison, WI 53707Division of Health Care Financing, P.O. Box 309, Madison, WI 53701.

SECTION 20. HFS 107.10 (2) (a) is repealed.

SECTION 21. HFS 107.10 (2) (d), (3) (b) to (d) and (h) (intro) are amended to read:

HFS 107.10 (2) (d) Drugs which have been demonstrated to the department has determined entail substantial cost or utilization problems for the MA program, including antibiotics which cost $100 or more a day. These drugs shall be noted in the Wisconsin medicaid drug index;

(3) (b) Dispensing of non–scheduled legend drugs shall be limited to the original dispensing plus 11 refills, or 12 months from the date of the original prescription, whichever comes first.

(c) Generically–written prescriptions for drugs listed in the federal food and drug administration approved drug products publication shall be filled with a generic drug included in that list. Prescription orders written for brand name drugs which have a lower cost genericallycommonly available generic drug equivalent shall be filled with the lower cost drug product equivalent, unless the prescribing provider under sub. (1) writes “brand medically necessary" on the face of the prescription.

(d) Except as provided in par. (e), legend drugs shall be dispensed in the full amounts prescribed, not to exceed a 34–day supply.

(h) To be included as a covered service, an over–the–countera non-legend drug shall be used in the treatment of a diagnosable medical condition and be a rational part of an accepted medical treatment plan. Only the The following general categories of over–the–counternon-legend drugs are covered:

SECTION 22. HFS 107.10 (3) (h) 8. is created to read:

HFS 107.10 (3) (h) 8. Non-legend drugs not within one of the categories described under subds. 1. to 7. that previously had legend drug status and that the department has determined to be cost effective in treating the condition for which the drugs are prescribed."

SECTION 23. HFS 107.10 (3) (i), (4) (L) and (5) (a) are amended to read:

HFS 107.10 (3) (i) Any innovator multiple–source drug is a covered service only if the prescribing provider under sub. (1) certifies by writing the phrase “brand medically necessary" on the prescription to the pharmacist that a specificthe innovator brand drug, rather than a generic drug, is medically necessary. The prescribing provider shall document in the patient's record the reason why the innovator brand drug is medically necessary in the patient's record. In this paragraph, “innovatorThe innovators of multiple source drug" means a multiple source drug that was originally marketed under an original new drug application approved by the U.S. food and drug administration are identified in the Wisconsin medicaid drug index.

(4) (L) Drugs included in the medicaid negative drug listformulary maintained by the department; and

(5) (a) The pharmacist shall provide for a review ofthe drug therapy before each prescription is filled or delivered to an MA recipient. The review shall include screening for potential drug therapy problems due to including therapeutic duplication, drug–disease contraindications, drug–drug interactions, including serious interactions with non–prescription or over–the–counter non-legend drugs, incorrect drug dosage or duration of drug treatment, drug–allergy interactions and clinical abuse or misuse.

SECTION 24. HFS 107.11 (6) (b) 5. is amended to read:

HFS 107.11 (6) (b) 5. a. Except as provided in subd. par. b., Ddrugs and treatment shall be administered by the RN or LPN only as ordered by the recipient's physician or his or her designee. The nurse shall immediately record and sign oral orders and shall obtain the physician's countersignature within 10 working days.

b. Drugs may be administered by an advanced practice nurse prescriber as authorized under ss. N 8.06 and 8.10.

SECTION 25. HFS 107.12 (1) (e) is amended to read:

HFS 107.12 (1) (e) 1. Except as provided in subd. 2., Drugs and treatment shall be administered by the RN or LPN only as ordered by the recipient's physician or his or her designee. The nurse shall immediately record and sign oral orders and shall obtain the physician's countersignature within 10 working days.

2. Drugs may be administered by an advanced practice nurse prescriber as authorized under ss. N 8.06 and 8.10.

SECTION 26. HFS 107.24 (2) (a), (3) (h) 1. (intro) and 2. and (5) (j) are amended to read:

HFS 107.24 (2) COVERED SERVICES. (a) Prescription and provision. Durable medical equipment (DME) and medical supplies are covered services only when prescribed by a physician and when provided by a certified physician, clinic, hospital outpatient department, nursing home, pharmacy, home health agency, therapist, orthotist, prosthetist, hearing aid dealerinstrument specialist or medical equipment vendor.

(3) (h) 1. A request for prior authorization of a hearing aid or other ALD shall be reviewed only if the request consists of an otological report from the recipient's physician and an audiological report from an audiologist or hearing aid dealerinstrument specialist, is on forms designated by the department and contains all information requested by the department. A hearing aid dealerinstrument specialist may perform an audiological evaluation and a hearing aid evaluation to be included in the audiological report if these evaluations are prescribed by a physician who determines that:

2. After a new or replacement hearing aid or other ALD has been worn for a 30-day trial period, the recipient shall obtain a performance check from a certified audiologist, a certified hearing aid dealerinstrument specialist or at a certified speech and hearing center. The department shall provide reimbursement for the cost of the hearing aid or other ALD after the performance check has shown the hearing aid or ALD to be satisfactory, or 45 days has elapsed with no response from the recipient;

(5) (j) All repairs of a hearing aid or other assistive listening device performed by a dealer within 12 months after the purchase of the hearing aid or other assistive listening device. These are included in the purchase payment and are not as separate servicesseparately reimbursable;

SECTION 27. HFS 107.36 (1) (a) 4., (b) to (i) and (2) (a) and (b) 2. are amended to read:

HFS 107.36 (1) (a) 4. Consultation, case monitoring and coordination related to developmental testing under the individuals with disabilities education act, 20 USC 1400 to 1485, are included in the MA–covered services described in this subsection when an IEP or IFSP results from the testing. Consultation, case monitoring and coordination for IEP or IFSP services are also included in the covered services described in this subsection.

(b) Speech-language pathology, hearing and audiological services. Speech, languageSpeech-language pathology, hearing and audiological services for a recipient with a speech, language or hearing disorder that adversely affects the individual's functioning are covered school–based services. These services include evaluation and testing to determine the individual's need for the service, recommendations for a course of treatment and treatment. The services may be delivered to an individual or to a group of 2 to 7 individuals. The services shall be performed by or under the direction of a speech and languagespeech-language pathologist licensed by the department of public instruction under s. PI 3.35 or by an audiologist licensed by the department of public instruction under s. PI 3.355, and shall have a physician referral and be identified in the recipient's IEP or IFSP.

(c) Occupational therapy services. Occupational therapy services which identify, treat, or compensate for medical problems that interfere with age–appropriate functional performance are covered school–based services. These services include evaluation to determine the individual's need for occupational therapy, recommendations for a course of treatment, and rehabilitative, active or restorative treatment services. The services may be delivered to an individual or to a group of 2 to 7 individuals. The services shall be performed by or under the direction of an occupational therapist licensed by the department of public instruction under s. PI 3.36 and shall be prescribed by a physician and identified in the recipient's IEP or IFSP.