Chapter DHS 106

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.

DHS 106.09 History 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.

DHS 106.10 DHS 106.10 Withholding payment of claims.

DHS 106.10(1) (1) Suspension or termination from participation shall preclude a provider from submitting any claims for payment, either personally or through claims submitted by any clinic, group, corporation or other association for any health care provided under MA, except for health care provided prior to the suspension or termination.

DHS 106.10(2) (2) No clinic, group, corporation or other association which is a provider of services may submit any claim for payment for any health care provided by an individual provider within that organization who has been suspended or terminated from participation in MA, except for health care provided prior to the suspension or termination.

DHS 106.10(3) (3) The department may recover any payments made in violation of this subsection. Knowing submission of these claims shall be a grounds for administrative sanctions against the submitting provider.

DHS 106.10 History History: Cr. Register, December, 1979, No. 288. eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; r. (1), renum. (2) (a) to (c) to be (1) to (3), Register, February, 1988, No. 386, eff. 3-1-88; renum. from HSS 106.08, Register, February, 1993, No. 446, eff. 3-1-93.

DHS 106.11 DHS 106.11 Pre-payment review of claims.

DHS 106.11(1) (1) Health care review committees. The department shall establish committees of qualified health care professionals to evaluate and review the appropriateness, quality and quantity of services furnished recipients.

DHS 106.11(2) (2) Referral of aberrant practices. If the department has cause to suspect that a provider is prescribing or providing services which are not necessary for recipients, are in excess of the medical needs of recipients, or do not conform to applicable professional practice standards, the department shall, before issuing payment for the claims, refer the claims to the appropriate health care review committee established under sub. (1). The committee shall review and evaluate the medical necessity, appropriateness and propriety of the services for which payment is claimed. The decision to deny or issue the payment for the claims shall take into consideration the findings and recommendation of the committee.

DHS 106.11(3) (3) Withdrawal of review committee members for conflict of interest. No individual member of a health care review committee established under sub. (1) may participate in a review and evaluation contemplated in sub. (2) if the individual has been directly involved in the treatment of recipients who are the subject of the claims under review or if the individual is financially or contractually related to the provider under review or if the individual is employed by the provider under review.

DHS 106.11(4) (4) Provider notification of prepayment review. A provider shall be notified by the department of the institution of the pre-payment review process under sub. (2). Payment shall be issued or denied, following review by a health care review committee, within 60 days of the date on which the claims were submitted to the fiscal agent by the provider.

DHS 106.11(5) (5) Application of sanction. If a health care review committee established under sub. (1) finds that a provider has delivered services that are inappropriate or not medically necessary, the department may require the provider to request and receive from the department authorization prior to the delivery of any service under the program.

DHS 106.11 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; renum. from HSS 106.09, Register, February, 1993, No. 446, eff. 3-1-93.

DHS 106.12 DHS 106.12 Procedure, pleadings and practice.

DHS 106.12(1) (1) Scope. The provisions of this section shall govern the following administrative actions by the department: