Businesses choosing to pursue grants and loans for undertaking innovative projects for strengthening inner cities; rural municipalities; entrepreneurship; and industrial, academic and artistic clusters.

An application form prescribed by the Department must be completed and submitted to the Department. Grants and loans that are awarded may be issued in conjunction with contracts that require periodic reporting of the ensuing performance.

No new professional skills are necessary for compliance with the rules.

No

Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Although the rules will newly result in review of documentation relating to applications and reports for grants or loans under this chapter, the time needed for these reviews is expected to be spent by current employees. Therefore, the proposed rules are not expected to have any significant fiscal effect on the Department.

The proposed rules are not expected to impose any significant costs on the private sector because the rules address submittal of documentation, and other activities, only by entities that choose to pursue obtaining grants or loans under this chapter.

None.

None.

None known.

NOTICE IS HEREBY GIVEN That pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in ss. 227.18 and 227.24 (4), Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the emergency rules and proposed permanent rules to create section Ins 3.36, Wis. Adm. Code, relating to autism spectrum disorders treatment and affecting small business.

Date:   May 26, 2010

Time:   1:00 p.m., or as soon thereafter as the matter
  may be reached

Place:   OCI, Room 227, 2nd Floor
  125 South Webster Street
  Madison, WI

Comments submitted through the Wisconsin Admin. Rule Web site at: http://adminrules.wisconsin.gov on the proposed rule will be considered.

The deadline for submitting comments is 4:00 p.m. on the 10th day after the date for the hearing stated in this Notice of Hearing.

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet Web site at http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Public Information and Communications, OCI, at: inger.williams@wisconsin.gov, (608) 264-8110, 125 South Webster Street — 2nd Floor, Madison WI or PO Box 7873, Madison WI 53707-7873.

Sections 600.01, 628.34 (12), 632.895 (12m) Stats.

Sections 600.01 (2), 601.41 (3), 601.42, 628.34 (12), 632.895 (12m), Stats.

The statutes all relate to the commissioner's authority to promulgate rules regulating the business of insurance as it relates to disability insurance products. Specifically, s. 632.895 (12m) (f), Wis. Stats., requires the commissioner to define “intensive-level services," “nonintensive-level services," “paraprofessional," and “qualified" for purposes of providing services under this subsection. The statute further authorizes that the commissioner may promulgate rules governing the interpretation or administration of this subsection.

There are no other statutes or rules that mandate services for autism spectrum disorders. This rule creates a new section to implement the newly created mandate pursuant to 2009 Wis. Act 28.

Under 2009 Wisconsin Act 28, the Commissioner is required pursuant to s. 632.895 (12m), Stats., to define four terms: intensive level services, non-intensive level services, qualified, and paraprofessionals; and may draft rules that relate to the interpretation or administration of section.

To ensure clear understanding of current provider qualifications and treatment options for autism spectrum disorders, the Commissioner established the Autism Working Group. The work group was charged with advising the Commissioner on definitions for the four required terms and making recommendations on how the statute should be implemented. The group was composed of parents, providers, insurers, legislators and advocates. Administrators of the Waiver program at the Department of Health Services also participated. The group met every other week beginning June 23rd, 2009 until September 10th, 2009 and continues meeting on a quarterly basis.

The Waiver program was used as a baseline to discuss the implementation of the new mandate. Current literature on autism spectrum disorders and information from other states was presented to the working for review and consideration. Because the research and literature in the realm of autism treatments is rapidly evolving, the working group recommended defining “evidence-based" and “behavioral" rather than creating a list of approved therapies that could readily become outdated.

The proposed rule includes definitions of intensive level evidence-based behavioral therapy and non-intensive level evidence-based therapy. Based upon current research, the rule limits intensive level services to children aged 2 to 9 as this period of time has shown to be the optimum time for gains for individuals diagnosed with autism spectrum disorders. Building from the Waiver program, the working group developed a comprehensive regulation.

The proposed rule contains criteria necessary for one to be considered a qualified provider, qualified professional, qualified therapist and qualified paraprofessional. The criteria include a combination of educational, professional and specific training with individuals diagnosed with autism spectrum disorders and, for qualified paraprofessionals, specific requirements for supervised implementation of a treatment plan for the insured. The rule includes provisions to permit individuals who are currently providing services through the department's Waiver program to be deemed qualified for up to two years and to permit insurers and self-funded plans to contract with these individuals who are experienced but may not meet the “qualified" requirements. The proposed rule differentiates between treatment providers for intensive versus nonintensive-level services. For a psychiatrist, psychologist, social worker certified or licensed to practice psychotherapy or a professional working under the supervision of an outpatient mental health clinic to be considered qualified to provide intensive-level services, the rule delineates a combination of education, training and experience with individuals diagnosed with autism spectrum disorders.

A current, valid state-issued license or certificate is necessary in order for a psychiatrist, psychologist, social worker certified or licensed to practice psychotherapy, speech pathologist, or occupational therapist to be qualified to provide nonintensive-level services or to implement an intensive-level treatment plan. For a person who is a qualified professional working under the supervision of an outpatient mental health clinic, the clinic must be certified under s. 51.038, Stats., in order for the professional to provide nonintensive-level services or to implement an intensive-level treatment plan.

The proposed rule also establishes requirements for paraprofessionals, individuals who may only provide services while working under the supervision of a psychiatrist, psychologist or social worker certified or licensed to practice psychotherapy.

The rule also handles several administrative concerns. It allows insurers to deny claims they believe to be fraudulent, exclude travel time from the required hours of treatment and allocated dollars for treatment and permits dispute resolution through independent review organizations.

Autism Treatment Acceleration Act of 2009 (S. 819, H.R. 2413) was proposed in May. If passed, Section 12 will require all insurance companies to provide coverage for evidence-based, medically-necessary autism treatments and therapies. A comparison of final federal requirements and state law and regulation will be reviewed if this act is passed.

Additionally, the ``Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008'' (29 U.S.C. 1185a), requires group health plans that offer both medical and surgical benefits and mental health or substance use disorder benefits to ensure financial and treatment limitations are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan. Further, the federal law does not permit separate cost-sharing requirements that are applicable only with respect to mental health or substance-use disorder benefits.

The federal government issued interim final rules implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) on February 5, 2010. Although the interim rules do not specifically define what constitutes a mental health condition, the newly issued rules provide some guidance to states and insurers. The MHPAEA rules are first effective July 1, 2010 to newly-issued plans or upon the renewal, extension or modification on or after July 1, 2010. The MHPAEA rules require mental health benefits to be defined within the plan by the issuer in accordance with federal and state law and consistent with generally recognized independent standards of current medical practice including the most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM, most current version IV, contains diagnostic criteria for “autistic disorder." Although there is no direct federal guidance that autism spectrum disorders are subject to federal parity requirements, it is the position of the Commissioner that parity for autism services does apply to group health plans with more than 50 employees based upon preliminary review of the regulations.

Wisconsin's law is broader than the federal law, as it mandates inclusion of mental health, alcohol and other substance abuse benefits. Further, Wisconsin's autism treatment mandate applies to individual, small employer and governmental self-funded health plans in addition to group health plans with more 50 employees. The individual, small employer and governmental self-funded plans will remain subject to these mandates as they are not regulated by the federal government.

Public Act 95-1005 requires private insurers cover autism benefits for children under 21 years of age. No rule-making accompanied this law, however, the statute does include Applied Behavioral Analysis, intervention, and modification as a part of the covered behavioral treatments. The law is subject to pre-existing condition limitations. It is also subject to denials based on medical necessity.

A Bill, SF 1, was introduced in the Iowa legislature this year but did not pass. There are no other similar laws or rules in Iowa.

Two bills, HB 4183 and 4176, requiring autism coverage, have passed the Michigan House; however, they are not expected to reach a vote this year. There are no other similar laws or rules in Michigan.

Section 62A.3094 was enacted and became effective August 1, 2009. The mandate requires coverage for the diagnosis, evaluation, assessment and medically necessary care for autism spectrum disorders including intensive evidence-based behavior therapy, behavior services, speech therapy, occupational therapy, physical therapy and medications.

The Commissioner created an advisory Autism Working Group to assist in the development of workable definitions of “intensive" and “nonintensive" level services; “qualified" providers and “paraprofessionals." The advisory working group was comprised of providers, insurers, advocates, parents of autistic children and representatives from the Department of Health Services familiar with the Medicaid Waiver program for autism services. The working group met seven times between June 23 and September 10, 2009, and continues to meet quarterly. This proposed rule reflects the advisory working group's recommendations.