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(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;
(c) Transfer to a provider agreement of limited duration not to exceed 12 months; or
(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 106.08Intermediate 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);
(c) For conduct resulting in repeated recoveries under s. DHS 108.02 (9);
(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;
(c) Requiring prior authorization of some or all of the provider’s services;
(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;
(c) Prior sanctions;
(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 106.09Departmental 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.
DHS 106.10Withholding payment of claims.
(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.
(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.
(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.
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 106.11Pre-payment review of claims.
(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.
(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.
(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.
(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.
(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.
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 106.12Procedure, pleadings and practice.
(1)Scope. The provisions of this section shall govern the following administrative actions by the department:
(a) Decertification or suspension of a provider from the medical assistance program pursuant to s. 49.45 (2) (a) 12., Stats.;
(b) Imposition of additional sanctions for non-compliance with the terms of provider agreements under s. 49.45 (2) (a) 9., Stats., or certification criteria established under s. 49.45 (2) (a) 11., Stats., pursuant to s. 49.45 (2) (a) 13., Stats.; and
(c) Any action or inaction for which due process is otherwise required under s. 227.42, Stats.
(1m)Application. The provisions of this section do not apply to either of the following:
(a) Hearings to contest recoveries by the department of overpayments to providers. Requests for hearings and hearings under these circumstances are governed exclusively by s. DHS 108.02 (9) (e); or
(b) Contests by providers of the propriety of the amount of payment received from the department, including contests of claim payment denials. The exclusive procedure for these contests is as provided in s. DHS 106.03 (3) (b) 5, except as may be provided under the terms of the applicable provider agreement, pursuant to s. 49.45 (2) (a) 9., Stats.
(2)Due process. The department shall assure due process in implementing any action described in sub. (1) by providing written notice, a fair hearing and written decision pursuant to s. 49.45 (2) (a) 14., Stats., or as otherwise required by law. In addition to any provisions of this section, the procedures implementing a fair hearing and a written decision shall comply with the provisions of ch. 227, Stats.
(3)Written notice. The department shall begin actions described under sub. (1) by serving upon the provider written notice of the intended action or written notice of the action. Notice of intended action described under sub. (1) (a) and (b) shall include the following:
(a) A brief and plain statement specifying the nature of and identifying the statute, regulation or rule giving the department the authority to initiate the action;
(b) A short and plain statement identifying the nature of the transactions, occurrences or events which served as the basis for initiating the action; and
(c) A statement advising the provider of the right to a hearing and the procedure for requesting a hearing.
(4)Request for hearing. A provider desiring to contest a departmental action or inaction under sub. (1) may request a hearing on any matter contested. The request shall be in writing and shall:
(a) Be served upon the department of administration’s division of hearings and appeals unless otherwise directed by the secretary;
(b) For requests for hearings on actions or intended actions by the department, be served within 15 days of the date of service of the department’s notice of intended action or notice of action;
(c) For requests for hearings on inactions by the department, be served within 60 days from the date the provider first became aware of, or should have become aware of with the exercise of reasonable diligence, the cause of the appeal;
(d) Contain a brief and plain statement identifying every matter or issue contested; and
(e) Contain a brief and plain statement of any new matter which the provider believes constitutes a defense or mitigating factor with respect to non-compliance alleged in the notice of action.
Note: Hearing requests should be sent to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707.
(5)Timing of actions taken against a provider.
(a) Except as provided under par. (b), if no request for a hearing is timely filed, no action described in sub. (1) (a) and (b) may be taken by the department until 15 days after the notice of intended action has been served. Except as provided under par. (b), if a request for a hearing has been timely filed, no action described in sub. (1) (a) or (b) may be taken by the department until the hearing examiner issues a final decision.
(b) Actions described under sub. (1) (a) and (b) may be taken against a provider 15 days after service of the notice of intended action and without a prior hearing when the action is initiated by the department under s. DHS 106.06 (4), (5), (6), (8) or (28). If the provider prevails at the hearing, the provider shall be reinstated retroactive to the date of de-certification or suspension.
(6)Final decision.
(a) If payment of claims to the provider is being withheld by the department under s. DHS 106.08 (1), a final decision shall be made by the department within 150 days of receipt of the hearing request.
(b) The hearing examiner’s decision shall be the final decision of the department for contested actions under sub. (1) (a) and (b).
(7)Effect of failure to appear at hearing.
(a) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b), the hearing examiner may enter an order dismissing the department’s action, pursuant to the motion of the provider or on its own motion.
(b) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (c), the hearing examiner may enter an order granting the relief sought by the provider upon due proof of facts which show the provider’s entitlement to the relief.
(c) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b), the hearing examiner may enter an order dismissing the provider’s appeal upon due proof of facts which show the department’s entitlement to the remedy or relief sought in the action.
(d) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (c) the hearing examiner may enter an order dismissing the provider’s appeal, pursuant to the motion of the department or on its own motion.
(e) The department of administration’s division of hearings and appeals may by order reopen a default arising from a failure of either party to appear on the date set for hearing. The order may be issued upon motion or petition duly made and good cause shown. The motion shall be made within 20 days after the date of the hearing examiner’s default order.
(8)Dates of service. The date of service of a written notice required under sub. (3) shall be the date on which the provider receives the notice. The notice shall be conclusively presumed to have been received within 5 days after evidence of mailing. The date of service of a request for hearing under sub. (4) shall be the date on which the division of hearings and appeals receives the request.
History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; r. and recr. Register, February, 1986, No. 362, eff. 3-1-86; am. (1) (c) and (4) (b), r. and recr. (5) (a) and (b), r. (5) (c), cr. (8), Register, February, 1988, No. 386, eff. 3-1-88; renum. from HSS 106.10, r. (1m), Register, February, 1993, No. 446, eff. 3-1-93; correction in (1m) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.
DHS 106.13Discretionary waivers and variances. A provider or recipient may apply for and the department shall consider applications for a discretionary waiver or variance of any rule in chs. DHS 102 to 105, 107 and 108, excluding ss. DHS 107.02 (1) (b), (2) (e) to (j) and (3) (a) and (b) and (d) to (h), 107.03 (1) to (8) and (10) to (18), and 107.035. Waivers and variances shall not be available to permit coverage of services that are either expressly identified as non-covered in ch. DHS 107 or are not expressly mentioned in ch. DHS 107. The following requirements and procedures apply to applications under this section:
(1)Requirements for a discretionary waiver or variance. A discretionary wavier or variance may be granted only if the department finds all of the following are met:
(a) The waiver or variance will not adversely affect the health, safety or welfare of any recipient;
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.