Active Week for WHA Behavioral Health Regulatory Reform Advocacy

May 28, 2019

The importance of removing overly burdensome and prescriptive regulations impacting mental health and substance abuse treatment providers and impacts on access to behavioral health services was a core message from WHA and its members to state policymakers at three separate recent hearings:

  • The Speaker’s Task Force on Suicide Prevention
  • DHS 75 – revising rules governing Community Substance Abuse Standards
  • DHS 40 – revising rules governing Mental Health Day Treatment Services for Children
Speaker’s Task Force on Suicide Prevention
WHA spoke and provided written testimony to the Speaker’s Task Force on Suicide Prevention in La Crosse on May 20. The hearing was preceded by a tour of the Gundersen Lutheran Inpatient Behavioral Health Unit. Two key messages emerged from that tour—the significant additional costs inpatient behavioral health units face to maintain compliance with increasing regulatory requirements, and the impact of Wisconsin’s critical shortage of psychiatrists on the availability of inpatient psychiatric beds.

“While inpatient capacity is typically looked at in terms of number of beds, Wisconsin’s critical shortage of psychiatrists and other mental health professionals has made it difficult for hospitals to fully staff those beds,” said Ann Zenk, WHA Vice President of Workforce and Clinical Practice, and Matthew Stanford, WHA General Counsel, in testimony to the Speaker’s Task Force.

“There are just not enough providers. Just not enough,” reiterated Kayla Jones, Clinical Director, Gundersen Health System Inpatient Behavioral Health.

Key WHA recommendations included:
  • Continue to support psychiatrist graduate medical education. First established in the 2013 state budget and resulting from a recommendation in WHA’s 2011 Physician Workforce Report, Wisconsin’s state matching grant program to support graduate medical education in Wisconsin is on track to support the annual graduation of nearly 30 new psychiatrists in Wisconsin by 2022.
  • Increase Medicaid reimbursement for psychiatrists to match Medicare rates. In 2018, the Department of Health Services (DHS) increased Medicaid behavioral health reimbursement to match Medicare rates. However, the change had little impact on psychiatrists because the policy change did not include key E/M codes used by psychiatrists. WHA has and continues to advocate for a targeted policy change to address this exclusion.
  • Address payment and regulatory reform. Hospital and clinic providers have expressed frustrations with the lack of alignment of regulatory and reimbursement policy with care delivery practices being encouraged. For example, although costly new ligature prevention requirements are coming online, Medicaid continues to reimburse psychiatric inpatient services well below the cost of providing care. Dr. John Lehrman, Medical College of Wisconsin, Chair, Psychiatry and Behavioral Medicine, reiterated the impact of poor reimbursement on the accessibility of behavioral health services. “The only reason we are able to provide these services at the rates we are paid is because health systems…cover these shortfalls,” said Dr. Lehrman.
  • Remove barriers to telemedicine. Despite demonstrated efficacy of telemedicine, outdated regulatory barriers impede use of telemedicine for behavioral health and other conditions. WHA’s Telemedicine Task Force has developed bill language to address these barriers, and WHA looks forward to a bill circulating for introduction in the coming weeks.
  • Strengthen Wisconsin’s acute mental health care infrastructure. Just as Wisconsin has worked to strengthen its preventive and community-based mental health infrastructure, policymakers need to explore reimbursement and regulatory relief options to incentivize and strengthen Wisconsin’s acute mental health hospitalization infrastructure.
See a copy of WHA’s written testimony to the Speaker’s Task Force.

DHS 75 – Revising Rules Governing Community Substance Abuse Standards
The Department of Health Services (DHS) held listening sessions in Eau Claire and Green Bay on May 21 and 23 seeking input and experiences with Wisconsin’s Community Substance Abuse Standards – DHS 75 – as DHS begins an effort to rewrite those rules. Matthew Stanford, WHA General Counsel, attended the listening sessions and is a member of a DHS advisory committee that will be convened this fall to work on a final proposed rewrite of DHS 75.

The rulemaking is an outgrowth of a recommendation from the Governor’s Task Force on Opioids. During that Task Force, WHA noted concerns from substance abuse providers that Wisconsin’s special substance abuse treatment rules can create costly and unnecessary burdens that are not keeping up with care delivery changes and create barriers to expanding substance abuse treatment services.

Health system substance abuse providers from HSHS/Libertas, Marshfield Clinic Health System, Gundersen Health System, and Mayo Clinic Health System attended the DHS listening session, as did several local agency substance abuse providers. Examples of common key themes of the comments provided included:
  • The substance abuse treatment field has “professionalized” with professional education and licenses since these rules were first created. Because DHS 75 has not evolved with that professionalization, providers must navigate unnecessary and overlapping regulatory prescriptiveness and particularity.
  • The DHS 75 clinical supervision requirements are outdated and often inconsistent with a modern “professionalized” substance abuse treatment delivery model.
  • The DHS 75 rules frequently require multiple signatures and reviews that create paperwork burden but no meaningful benefit for patient care.
  • Separate treatment service-type silos are creating unnecessary barriers to service model flexibility and integration.

“It’s highly overregulated. All of these nitpicky rules reflect what was once an emerging field,” said one local agency provider summarizing various comments from others. “Providers don’t last if they are not doing a good job.”

Additional DHS 75 listening sessions in Milwaukee, Waukesha, Lac du Flambeau, and Madison will be held beginning in mid- June through July. If you have questions or would like more information about these sessions, contact WHA General Counsel Matthew Stanford at 608-274-1820.

DHS 40 – Proposed Rule Revisions Governing Mental Health Day Treatment Services for Children
On May 17, WHA submitted a comment letter during the 14-day comment period on proposed rulemaking revisions to existing DHS 40 – Mental Health Day Treatment Services for Children.

The officially proposed revisions, which were largely developed in 2017 and 2018, are not final rules and still need to receive final review and approval by the DHS secretary, governor, and legislative committees.

“Particularly given the acute access challenges for children’s mental health services…we believe that the Department should fundamentally and comprehensively reconsider, and even potentially repeal, the overly detailed and unnecessarily prescriptive DHS 40 regulation,” wrote WHA in its comment letter on the proposed rule.

The comment letter highlighted:

  • Regulatory redundancies. There is a lengthy list of other existing laws, rules, and standards that would continue to apply should DHS 40 be repealed.
  • Wisconsin’s outlier regulatory approach. Wisconsin’s rule is an outlier compared to neighboring and other states. Even among the states that specially regulate child mental health day treatment, Wisconsin’s existing and proposed detail, specificity and prescriptiveness is a significant outlier.
  • Ideal practice vs. critical protective standards. WHA stated concerns that the rule expresses ideal practice scenarios that don’t consider the diversity of community needs and resources, rather than critical standards that are fundamental to the protection of the public.
  • The economic impact is not fully captured. The rule’s economic impact analysis does not fully capture either the direct costs or the opportunity costs of the rule, such as paperwork burden on clinicians that increases clinician burnout and ultimately reduces the number of patients a clinician can see during the clinician’s overall workday.

“We question whether layering DHS 40’s [existing and] additional compliance obligations on youth day treatment providers onto an already highly regulated and scrutinized area of health care creates a marginal benefit to Wisconsin that outweighs the direct costs and compliance costs the rule has on existing and potential providers of scarce youth mental health services,” wrote WHA.

If you have questions or would like more information about the DHS 40 rulemaking, contact WHA General Counsel Matthew Stanford at 608-274-1820.

This story originally appeared in the May 28, 2019 edition of WHA Newsletter