Chapter DHS 106

DHS 106.06(22) (22) Racial or ethnic discrimination. The provider has refused to provide or has denied services to recipients on the basis of the recipient’s race, color or national origin in violation of the Civil Rights Act of 1964, as amended, 42 USC 200d, et. Seq., and the implementing regulations. 45 CFR Part 80.

DHS 106.06(23) (23) Disability discrimination. The provider has refused to provide or has denied services to a recipient with a disability solely on the basis of disability, thereby violating section 504 of the Rehabilitation Act of 1973, as amended, 29 USC 794.

DHS 106.06(24) (24) Funds mismanagement. A provider providing skilled nursing or intermediate care services has failed to or has refused to establish and maintain an accounting system which ensures full and complete accounting of the personal funds of residents who are recipients, or has engaged in, caused, or condoned serious mismanagement or misappropriation of the funds;

DHS 106.06 Note Note: See s. DHS 107.09 (4) (i) for requirements concerning accounting for the personal funds of nursing home residents.

DHS 106.06(25) (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. DHS 106.04 (5) 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;

DHS 106.06(26) (26) Faulty submission of claims, failure to heed MA billing standards, or submission of inaccurate billing information. The provider has created substantial extraordinary processing costs by submitting MA claims for services that the provider knows, or should have known, are not reimbursable by MA, MA claims which fail to provide correct or complete information necessary for timely and accurate claims processing and payment in accordance with proper billing instructions published by the department or the fiscal agent, or MA claims which include procedure codes or procedure descriptions that are inconsistent with the nature, level or amount of health care provided to the recipient, and, in addition, the provider has failed to reimburse the department for extraordinary processing costs attributable to these practices;

DHS 106.06(28) (28) Other termination reasons. The provider, a person with management responsibility for the provider, an officer or person owning directly or indirectly 5% or more of the shares or other evidences of ownership of a corporate provider, a partner in a partnership which is a provider, or the owner of a sole proprietorship which is a provider, was:

DHS 106.06(28)(a) (a) Terminated from participation in the program within the preceding 5 years;

DHS 106.06(28)(b) (b) A person with management responsibility for a provider previously terminated under this section, or a person who was employed by a previously terminated provider at the time during which the act or acts occurred which served as the basis for the termination of the provider’s program anticipation and knowingly caused, concealed, performed or condoned those acts;

DHS 106.06(28)(c) (c) An officer of or person owning, either directly or indirectly, 5% of the stock or other evidences of ownership in a corporate provider previously terminated at the time during which the act or acts occurred which served as the basis for the termination;

DHS 106.06(28)(d) (d) An owner of a sole proprietorship or a partner in a partnership that was terminated as a provider under this section, and the person was the owner or a partner at the time during which the act or acts occurred which served as the basis for the termination;

DHS 106.06(28)(e) (e) Convicted of a criminal offense related to the provision of services or claiming of reimbursement for services under medicare or under this or any other state’s medical assistance program. In this subsection, “convicted” means that a judgment of conviction has been entered by a federal, state or local court, irrespective of whether an appeal from the judgment is pending;

DHS 106.06(28)(f) (f) Excluded, terminated, suspended or otherwise sanctioned by medicare or by this or any other state’s medical assistance program; or

DHS 106.06(28)(g) (g) Barred from participation in medicare by the federal department of health and human services, and the secretary of the federal department of health and human services has directed the department to exclude the individual or entity from participating in the MA program under the authority of section 1128 or 1128A of the social security act of 1935, as amended.

DHS 106.06(29) (29) Billing for services of a non-certified provider. The provider submitted claims for services provided by an individual whose MA certification had been terminated or suspended, and the submitting provider had knowledge of the individual’s termination or suspension; or

DHS 106.06(30) (30) Business transfer liability. The provider has failed to comply with the requirements of s. 49.45 (21), Stats., regarding liability for repayment of overpayments in cases of business transfer.

DHS 106.06 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; emerg. am. (28) (e) and (f), cr. (28) (g), eff. 2-19-88; am. (28) (e) and (f), cr. (28) (g), Register, August, 1988, No. 392, eff. 9-1-88; correction in (25) made under s. 13.93 (2m) (b) 7., Stats., Register February 2002 No. 554; corrections in (11), (12) and (13) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 09-107: cr. (4m) Register August 2010 No. 656, eff. 9-1-10; CR 20-039: r. (27) Register October 2021 No. 790, eff. 11-1-21; CR 20-068: am. (intro.), (22), (23) Register December 2021 No. 792, eff. 1-1-22.

DHS 106.065 DHS 106.065 Involuntary termination and alternative sanctions for home care providers.

DHS 106.065(1) (1) Termination.

DHS 106.065(1)(a) (a) The department may terminate a home care provider’s certification to participate in the MA program for failure to comply with the requirements of s. DHS 105.19, 107.11, 107.113 or 107.12, as applicable, or for any of the reasons described in s. DHS 106.06 after reasonable notice and opportunity for a hearing under s. DHS 106.12 (4).

DHS 106.065(1)(b) (b) The department shall provide at least 15 working days advance notice of termination to the provider, except at least 5 calendar days advance notice to providers is required in situations where the recipient’s health and safety is in immediate jeopardy.

DHS 106.065(1)(c) (c) Any provider terminated under this section shall have 30 calendar days from the date of termination of certification to make alternative care arrangements for MA recipients under the provider’s care before the effective date of termination. After the 30-day period, MA payment for services provided will cease, except for payments to providers terminated in immediate jeopardy situations. In immediate jeopardy situations, as determined by the department, the department may make alternative care arrangements to preserve continuity of care and for the protection of the recipient.

DHS 106.065(2) (2) Alternative sanctions.

DHS 106.065(2)(a) (a) In the event the department finds it more appropriate to take alternative action to termination of certification under sub. (1) to ensure compliance with program requirements, it may impose one or more sanctions under par. (b) for no more than 6 months following the last day of the department’s review of the provider. If, at the end of the 6 month period, the provider continues to not comply with the MA program requirement or requirements, the provider shall be terminated from MA program participation under sub. (1).

DHS 106.065(2)(b) (b) The department may apply one or several of the following sanctions:

DHS 106.065(2)(b)1. 1. Suspension of payment for new admissions;

DHS 106.065(2)(b)2. 2. Suspension of payments for new admissions who require particular types of services;

DHS 106.065(2)(b)3. 3. Suspension of payments for any MA recipient requiring a particular type of service;

DHS 106.065(2)(b)4. 4. A plan of correction prescribed by the department;

DHS 106.065(2)(b)5. 5. Provider monitoring by the department;

DHS 106.065(2)(b)6. 6. Appointment of a temporary manager; or

DHS 106.065(2)(b)7. 7. Any of the sanctions described in s. DHS 106.07 (4).

DHS 106.065(2)(c) (c) In determining the most effective sanctions to be applied to a non-compliant provider, the department shall consider:

DHS 106.065(2)(c)1. 1. The severity and scope of noncompliance;

DHS 106.065(2)(c)2. 2. The relationship of several areas of the deficiencies or noncompliance;

DHS 106.065(2)(c)3. 3. The provider’s previous compliance history, particularly as it relates to the insufficiencies under consideration;

DHS 106.065(2)(c)4. 4. Immediate or potential jeopardy to patient health and safety;

DHS 106.065(2)(c)5. 5. The direct relationship to patient care; and

DHS 106.065(2)(c)6. 6. The provider’s financial condition.

DHS 106.065(2)(d) (d) The department may revisit the provider during the sanction period. Termination procedures may be initiated as a result of the review conducted during the revisit if substantial noncompliance is found to persist, or if recipient safety is potentially or actually compromised.

DHS 106.065 History History: Cr. Register, February, 1993, No. 446, eff. 3-1-93; corrections in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 106.07 DHS 106.07 Effects of suspension or involuntary termination.

DHS 106.07(1) (1) Length of suspension or involuntary termination. In determining the period for which a party identified in this chapter is to be disqualified from participation in the program, the department shall consider the following factors:

DHS 106.07(1)(a) (a) The number and nature of the program violations and other related offenses;

DHS 106.07(1)(b) (b) The nature and extent of any adverse impact on recipients caused by the violations;

DHS 106.07(1)(c) (c) The amount of any damages;

DHS 106.07(1)(d) (d) Any mitigating circumstances; and

DHS 106.07(1)(e) (e) Any other pertinent facts which have direct bearing on the nature and seriousness of the program violations or related offenses.

DHS 106.07(2) (2) Federal exclusions. Notwithstanding any other provision in this chapter, a party who is excluded from participation in the MA program under s. DHS 106.06 (28) (e), (f) or (g) as the result of a directive from the secretary of the federal department of health and human services under the authority of section 1128 or 1128A of the social security act of 1935, as amended, shall be excluded from participation in the MA program for the period of time specified by the secretary of that federal agency.

DHS 106.07(3) (3) Referral to licensing agencies. The secretary shall notify the appropriate state licensing agency of the suspension or termination by MA of any provider licensed by the agency and of the act or acts which served as the basis for the provider’s suspension or termination.

DHS 106.07(4) (4) Other possible sanctions. In addition or as an alternative to the suspension or termination of a provider’s certification, the secretary may impose any or all of the following sanctions against a provider who has been found to have engaged in the conduct described in s. DHS 106.06:

DHS 106.07(4)(a) (a) Referral to the appropriate state regulatory agency;

DHS 106.07(4)(b) (b) Referral to the appropriate peer review mechanism;

DHS 106.07(4)(c) (c) Transfer to a provider agreement of limited duration not to exceed 12 months; or

DHS 106.07(4)(d) (d) Transfer to a provider agreement which stipulates specific conditions of participation.

DHS 106.07 History History: Cr. Register, December, 1979, No. 288. eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; emerg. r. and recr. (2), eff. 2-19-88; am. (2), Register, February, 1988, No. 386, eff. 3-1-88; r. and recr. (2), Register, August, 1988, No. 392, eff. 9-1-88.

DHS 106.08 DHS 106.08 Intermediate sanctions.

DHS 106.08(1) (1) To enforce compliance with MA program requirements, the department may impose on a provider for a violation listed under sub. (2) one or more of the sanctions under sub. (3) unless the requirements of s. DHS 106.065 apply. Any sanction imposed by the department pursuant to this section may be appealed by the provider under s. DHS 106.12. Prior to imposing any alternative sanction under this section the department shall issue a written notice to the provider in accordance with s. DHS 106.12 (3). Nothing in this chapter shall be construed to compel the department, through a fair hearing or otherwise, to impose an intermediate sanction in lieu of suspension or termination of certification, a different intermediate sanction, monetary recoveries, auditing, withholding of claims or pre-payment review, nor may imposition of an intermediate sanction on a provider be construed to limit the department’s authority under s. DHS 106.06, 106.065, 106.07, 106.10 or 106.11, under this section, or under the applicable provider agreement, concluded pursuant to s. 49.45 (2) (a) 9., Stats.

DHS 106.08(2) (2) The department may impose an intermediate sanction under sub. (3) for any of the following violations of this chapter:

DHS 106.08(2)(a) (a) For conduct specified in s. DHS 106.06;

DHS 106.08(2)(b) (b) For refusal to grant the department access to records under s. DHS 106.02 (9) (e);

DHS 106.08(2)(c) (c) For conduct resulting in repeated recoveries under s. DHS 108.02 (9);

DHS 106.08(2)(d) (d) For non-compliance with one or more certification requirement applicable to the type of provider under ch. DHS 105;

DHS 106.08(2)(e) (e) For interference with recipient rights specified under ch. DHS 104; or

DHS 106.08(2)(f) (f) For refusal or repeated failure to comply with one or more requirement specified under this chapter.

DHS 106.08(3) (3) The department may impose one or more of the following intermediate sanctions for a violation listed under sub. (2):

DHS 106.08(3)(a) (a) Referral to the appropriate peer review organization, licensing authority or accreditation organization;

DHS 106.08(3)(b) (b) Transfer to a provider agreement of limited duration which also may stipulate specific conditions of participation;

DHS 106.08(3)(c) (c) Requiring prior authorization of some or all of the provider’s services;

DHS 106.08(3)(d) (d) Review of the provider’s claims before payment;

DHS 106.08(3)(e) (e) Restricting the provider’s participation in the MA program;

DHS 106.08(3)(f) (f) Requiring an independent audit of the provider’s practices and records, with the findings and recommendations to be provided to the department;

DHS 106.08(3)(g) (g) Requiring the provider to perform a self-audit following instructions provided by the department; and

DHS 106.08(3)(h) (h) Requiring the provider, in a manner and time specified by the department, to correct deficiencies identified in a department audit, independent audit or department survey or inspection.

DHS 106.08(4) (4) In determining the appropriate sanction or sanctions to be applied to a non-compliant provider and the duration of the sanction or sanctions, the department shall consider:

DHS 106.08(4)(a) (a) The seriousness and extent of the offense or offenses;

DHS 106.08(4)(b) (b) History of prior offenses;

DHS 106.08(4)(c) (c) Prior sanctions;

DHS 106.08(4)(d) (d) Provider willingness and ability to comply with MA program requirements;

DHS 106.08(4)(e) (e) Whether a lesser sanction will be sufficient to remedy the problem in a timely manner;

DHS 106.08(4)(f) (f) Actions taken or recommended by peer review organizations, licensing authorities and accreditation organizations;

DHS 106.08(4)(g) (g) Potential jeopardy to recipient health and safety and the relationship of the offense to patient care; and

DHS 106.08(4)(h) (h) Potential jeopardy to the rights of recipients under federal or state statutes or regulations.

DHS 106.08 History History: Cr. Register, February, 1993, No. 446, eff. 3-1-93; corrections in (2) (c), (d) and (e) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 106.09 DHS 106.09 Departmental discretion to pursue monetary recovery.

DHS 106.09(1) (1) Nothing in this chapter shall preclude the department from pursuing monetary recovery from a provider at the same time action is initiated to impose sanctions provided for under this chapter.

DHS 106.09(2) (2) The department may pursue monetary recovery from a provider of case management services or community support program services when an audit adjustment or disallowance has been attributed to the provider by the federal health care financing administration or the department. The provider shall be liable for the entire amount. However, no fiscal sanction under this subsection shall be taken against a provider unless it is based on a specific policy which was:

DHS 106.09(2)(a) (a) In effect during the time period being audited; and

DHS 106.09(2)(b) (b) Communicated to the provider in writing by the department or the federal health care financing administration prior to the time period audited.