Wisconsin Governor Suspends Some Administrative Rules During the COVID-19 Pandemic

May 5, 2020

Tony Evers, Governor of Wisconsin, and Wisconsin Department of Health Services Secretary-designee Andrea Palm have issued another emergency order, Emergency Order #35 (Order #35), directed at suspending certain administrative rules in an attempt to remove unnecessary impediments to the fight against the virus.

A major focus of Order #35 is assuring that Medicaid members retain their coverage eligibility during the COVID-19 pandemic.  This provision was required under the Families First Coronavirus Response Act as a condition of eligibility to receive federal funding.  Order #35 contains provisions expanding the availability of telehealth in the mental health and substance abuse areas.  The order also suspends the requirement that certain mental health and substance abuse services be provided only in a face-to-face setting.  This is just one of the many ways in which telehealth received a “shot in the arm” from the pandemic.

A few additional areas touched in Order #35 include:

  • Temporarily permitting nurses to bill Medicaid for overtime.
  • Suspension of certain prior authorization requirements, number of refill limitations, and prescription duration limitations.
  • Waiver of the requirement for parents to make certain payments for the “Birth to 3” program which provides early intervention services for children with developmental delays and disabilities.
  • Permits supervision of occupational therapists by electronic means in situations where close supervision is required.
  • Removes the requirement for health departments to conduct a community health assessment resulting in a community health improvement plan at least every five years. The “five-year” requirement is removed but the general obligation remains.
  • Revises DHS 34.02 (8) relating to emergency mental health services. Reference is directed toward prioritization of services in cases where the need for services outweighs resources.
  • Extends the time from three months to six months for newly hired mental health training staff who have less than six months experience to complete their 40 hours of documented orientation training.
  • Makes it easier for volunteers to meet their 40 hour training requirement. Instead of requiring all 40 hours of training be completed before commencing direct client work, trainees must now complete eight hours before starting.  Ten additional hours must be completed by the end of the first and second months of volunteer work.  The 40 hours of training must be completed within three months of starting volunteer work.
  • Deleted the minimum staffing requirements for outpatient mental health clinics under Wis. Admin. Code DHS 35. The general requirement the clinic have “a sufficient number of

qualified staff members available to provide outpatient mental health services to consumers admitted to care” remains.  The two specific options for meeting the minimum staffing responsibility have been removed.  Previously, clinics could meet their staffing requirement by meeting any of the three specific staffing scenarios included in the regulation.

This is unlikely to be the last set of waivers issued.  Providers who feel they might be restricted by state or federal regulatory requirements during the pandemic should communicate with the regulatory bodies.  Federal and state regulators have been sensitive to the needs of providers that are necessary to enable them to address the unprecedented needs created by the COVID-19 virus.

I’ve recapped the highlights, the full Order #35 can be found here.

You may access additional Ruder Ware coverage of legal issues related to the COVID-19 virus at the firm’s COVID-19 Resources Page.  Ruder Ware’s COVID-19 Team has been providing comprehensive coverage of the COVID-19 legal issues that are significant to our business, employment, and health care clients.

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