Wisconsin Legislature: DHS 106.065(2)(b)6.

(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.

(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;

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

(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;

(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;

(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:

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

(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;

(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;

(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;

(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;

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

(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.

(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

(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.

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 Involuntary termination and alternative sanctions for home care providers.

(1) Termination.

(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).

(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.

(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.

(2) Alternative sanctions.

(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).

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

1. Suspension of payment for new admissions;

2. Suspension of payments for new admissions who require particular types of services;

3. Suspension of payments for any MA recipient requiring a particular type of service;

4. A plan of correction prescribed by the department;

5. Provider monitoring by the department;

6. Appointment of a temporary manager; or

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

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

1. The severity and scope of noncompliance;

2. The relationship of several areas of the deficiencies or noncompliance;

3. The provider’s previous compliance history, particularly as it relates to the insufficiencies under consideration;

4. Immediate or potential jeopardy to patient health and safety;

5. The direct relationship to patient care; and

6. The provider’s financial condition.

(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.

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 Effects of suspension or involuntary termination.

(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:

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

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

(d) Any mitigating circumstances; and

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

(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.

(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.

(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:

(a) Referral to the appropriate state regulatory agency;

(b) Referral to the appropriate peer review mechanism;

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

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 Intermediate sanctions.

(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.

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

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

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

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

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

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

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

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

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

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

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

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

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

(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.

(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:

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

(b) History of prior offenses;

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

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

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

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

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

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 Departmental discretion to pursue monetary recovery.

(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.

(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:

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

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

History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; r. and recr. Register, February, 1988, No. 386, eff. 3-1-88; emerg. am. (2) (intro.), eff. 1-1-90; am. (2) (intro.), Register, September, 1990, No. 417, eff. 10-1-90; renum. from HSS 106.075, Register, February, 1993, No. 446, eff. 3-1-93.