Chapter 49

49.385 49.385 No action against members of the Menominee Indian tribe in certain cases. No action shall be commenced under s. 46.10 or 49.08 or any other provision of law for the recovery from assets distributed to members of the Menominee Indian tribe and others by the United States pursuant to P.L. 83-399, as amended, for the value of relief or old-age assistance under s. 49.20, 1971 stats., as affected by chapter 90, laws of 1973, and the value of maintenance in state institutions under ch. 46, furnished prior to termination date as defined in s. 70.057 (1), 1967 stats., to any legally enrolled member of the Menominee Indian tribe, his or her dependents, or lawful distributees of such member under section 3, said P.L. 83-399, as amended. For purposes of this section, “legally enrolled members of the Menominee Indian tribe” shall include only those persons whose names appear on “Final Roll-Menominee Indian Tribe of Wisconsin” as proclaimed by the secretary of the interior November 26, 1957, and published at pages 9951 et seq. of the federal register, Thursday, December 12, 1957.

49.385 History History: 1973 c. 147, 243; 1983 a. 192; 1995 a. 27 s. 2768m; Stats. 1995 s. 49.385.

subch. IV of ch. 49 SUBCHAPTER IV

MEDICAL ASSISTANCE

49.43 49.43 Definitions. As used in ss. 49.43 to 49.497 unless the context indicates otherwise:

49.43(1e) (1e) “Accommodated person” means any person in a hospital or in a skilled nursing facility or intermediate care facility, as defined in Title XIX of the social security act, who would have been eligible for benefits under s. 49.19 or 49.77 or federal Title XVI if the person were not in such a hospital or facility, and any person in such an institution who can be found eligible for Title XIX under the social security act.

49.43(1m) (1m) “Charge” means the customary, usual and reasonable demand for payment as established prospectively, concurrently or retrospectively by the department for services, care or commodities which does not exceed the general level of charges by others who render such service or care, or provide such commodities, under similar or comparable circumstances within the community in which the charge is incurred.

49.43(2) (2) “Cost” means the reasonable cost of services, care or commodities as determined by the principles of reimbursement used under 42 USC 1395 to 1395rr, in effect on April 30, 1980.

49.43(2m) (2m) “Cost-effective” has the meaning given in P.L. 101-508, section 4402 (a) (2).

49.43(2r) (2r) “County,” “county department,” and “county department under s. 46.215, 46.22, or 46.23” includes a multicounty consortium in accordance with a contract under s. 49.78 (2).

49.43(3) (3) “Dentist” means a person licensed to practice dentistry.

49.43(3e) (3e) “Department” means the department of health services.

49.43(3m) (3m) “Developmentally disabled” has the meaning specified in s. 51.01 (5).

49.43(3r) (3r) “Group health plan” has the meaning given in P.L. 101-508, section 4402 (a) (2). 

49.43(4) (4) “Home health agency” has the meaning specified in s. 50.49 (1) (a). 

49.43(5) (5) “Hospital” means an institution, approved by the appropriate state agency, providing 24-hour continuous nursing service to patients confined therein; which provides standard dietary, nursing, diagnostic and therapeutic facilities; and whose professional staff is composed only of physicians and surgeons, or of physicians and surgeons and doctors of dental surgery. 

49.43(6) (6) “Inpatient psychiatric hospital services for individuals 21 years of age or for individuals under 22 years of age who are receiving such service immediately prior to reaching age 21” has the same meaning as provided in section 1905 (h) of the federal social security act.

49.43(6m) (6m) “Institution for mental diseases” has the meaning specified in 42 CFR 435.1010.

49.43(7) (7) “Intermediate care facility” means either of the following:

49.43(7)(a) (a) An institution or distinct part thereof, which is:

49.43(7)(a)1. 1. Licensed or approved under state law to provide, on a regular basis, health related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing home is designated to provide but who because of their mental or physical condition require care and services above the level of room and board, which can be made available to them only through institutional facilities; and

49.43(7)(a)2. 2. Qualifies as an “intermediate care facility” within the meaning of Title XIX of the social security act.

49.43(7)(b) (b) A public institution, or distinct part thereof, which is:

49.43(7)(b)1. 1. Licensed or approved under state law for individuals with an intellectual disability or persons with related conditions, the primary purpose of which is to provide health or rehabilitative services for individuals with an intellectual disability according to rules promulgated by the department; and

49.43(7)(b)2. 2. Qualifies as an “intermediate care facility” within the meaning of Title XIX of the social security act.

49.43(8) (8) “Medical assistance” means any services or items under ss. 49.45 to 49.473, except s. 49.472 (6), and under ss. 49.49 to 49.497, or any payment or reimbursement made for such services or items.

49.43(8m) (8m) “Multicounty consortium” has the meaning given in s. 49.78 (1) (br).

49.43(9) (9) “Physician” means a person licensed to practice medicine and surgery, and includes graduates of osteopathic colleges holding an unlimited license to practice medicine and surgery.

49.43(10) (10) “Provider” means a person, corporation, limited liability company, partnership, unincorporated business or professional association and any agent or employee thereof who provides medical assistance.

49.43(10m) (10m) “Public medical institution” has the meaning designated in Title XIX of the federal social security act.

49.43(10s) (10s) “Secretary” means the secretary of health services.

49.43(10v) (10v) “Serious and persistent mental illness” has the meaning given in s. 51.01 (14t).

49.43(11) (11) “Skilled nursing home” means a facility or distinct part thereof, which:

49.43(11)(a) (a) Is licensed or approved under state law for the accommodation of convalescents or other persons who are not acutely ill and not in need of hospital care;

49.43(11)(b) (b) Employs sufficient registered nursing practitioners for supervision of those giving nursing care to patients; and

49.43(11)(c) (c) Qualifies as a “skilled nursing facility” within the meaning of Title XIX of the social security act.

49.43(12) (12) “Spouse” means the legal husband or wife of the beneficiary, whether or not eligible for medical assistance.

49.43 History History: 1977 c. 29 ss. 583m, 591; 1977 c. 418 s. 929 (18); 1979 c. 221; 1981 c. 20 s. 2202 (20) (m); 1981 c. 93; 1983 a. 189; 1987 a. 27; 1987 a. 403 s. 256; 1987 a. 413; 1991 a. 39; 1993 a. 27, 99, 112, 437; 1995 s. 27 ss. 2649, 2661, 2943 to 2946, 9126 (19); 1999 a. 9; 2001 a. 16; 2005 a. 264; 2007 a. 20 s. 9121 (6) (a); 2011 a. 32, 126; 2021 a. 248.

49.45 49.45 Medical assistance; administration.

49.45(1) (1) Purpose. To provide appropriate health care for eligible persons and obtain the most benefits available under Title XIX of the federal social security act, the department shall administer medical assistance, rehabilitative and other services to help eligible individuals and families attain or retain capability for independence or self-care as hereinafter provided.

49.45(2) (2) Duties.

49.45(2)(a) (a) The department shall:

49.45(2)(a)1. 1. Exercise responsibility relating to fiscal matters, the eligibility for benefits under standards set forth in ss. 49.46 to 49.471, and general supervision of the medical assistance program.

49.45(2)(a)2. 2. Employ necessary personnel under the classified service for the efficient and economical performance of the program and shall supply residents of this state with information concerning the program and procedures.

49.45(2)(a)3. 3. Determine the eligibility of persons for medical assistance, rehabilitative, and social services under ss. 49.46, 49.468, 49.47, and 49.471 and rules and policies adopted by the department and may, under a contract under s. 49.78 (2), delegate all, or any portion, of this function to the county department under s. 46.215, 46.22, or 46.23 or a tribal governing body.

49.45(2)(a)4. 4. To the extent funds are available under s. 20.435 (4) (bm), certify all proper charges and claims for administrative services to the department of administration for payment and the department of administration shall draw its warrant forthwith.

49.45(2)(a)5. 5. Cooperate with the division for learning support in the department of public instruction to carry out the provisions of Title XIX.

49.45(2)(a)6. 6. Appoint such advisory committees as are necessary and proper.

49.45(2)(a)7. 7. Cooperate with the federal authorities for the purpose of providing the assistance and services available under Title XIX to obtain the best financial reimbursement available to the state from federal funds.

49.45(2)(a)8. 8. Periodically report to the joint committee on finance concerning projected expenditures and alternative reimbursement and cost control policies in the medical assistance program.

49.45(2)(a)9. 9. Periodically set forth conditions of participation and reimbursement in a contract with provider of service under this section.

49.45(2)(a)10. 10.

49.45(2)(a)10.a. a. After reasonable notice and opportunity for hearing, recover money improperly or erroneously paid or overpayments to a provider by offsetting or adjusting amounts owed the provider under the program, crediting against a provider’s future claims for reimbursement for other services or items furnished by the provider under the program, or requiring the provider to make direct payment to the department or its fiscal intermediary.

49.45(2)(a)10.b. b. Establish a deadline for payment of a recovery imposed under this subdivision and, if a provider fails to pay all of the amount to be recovered by the deadline, require payment, by the provider, of interest on any delinquent amount at the rate of 1 percent per month or fraction of a month from the date of the overpayment.

49.45(2)(a)10.c. c. Promulgate rules to implement this subdivision.

49.45(2)(a)11. 11.

49.45(2)(a)11.a. a. Establish criteria for certification of providers of medical assistance and, except as provided in par. (b) 6m. and s. 49.48, and subject to par. (b) 7. and 8., certify providers who meet the criteria.

49.45(2)(a)11.b. b. Promulgate rules to implement this subdivision.

49.45(2)(a)11.c. c. The department shall accept relevant education, training, instruction, or other experience that an applicant obtained in connection with military service, as defined in s. 111.32 (12g), to count toward the education, training, instruction, or other experience that is required to certify providers of medical assistance if the applicant demonstrates to the satisfaction of the department that the education, training, instruction, or other experience that the applicant obtained in connection with his or her military service is substantially equivalent to the education, training, instruction, or other experience required for the certification.

49.45(2)(a)12. 12.

49.45(2)(a)12.a. a. Decertify a provider from or restrict a provider’s participation in the medical assistance program, if after giving reasonable notice and opportunity for hearing the department finds that the provider has violated a federal statute or regulation or a state statute or administrative rule and the violation is, by statute, regulation, or rule, grounds for decertification or restriction. The department shall suspend the provider pending the hearing under this subdivision if the department includes in its decertification notice findings that the provider’s continued participation in the medical assistance program pending hearing is likely to lead to the irretrievable loss of public funds and is unnecessary to provide adequate access to services to medical assistance recipients. As soon as practicable after the hearing, the department shall issue a written decision. No payment may be made under the medical assistance program with respect to any service or item furnished by the provider subsequent to decertification or during the period of suspension.

49.45(2)(a)12.b. b. Promulgate rules to implement this subdivision.

49.45(2)(a)12r. 12r. Notify the medical examining board, or any affiliated credentialing board attached to the medical examining board, of any decertification or suspension of a person holding a license granted by the board or the affiliated credentialing board if the grounds for the decertification or suspension include fraud or a quality of care issue.

49.45(2)(a)13. 13. Impose additional sanctions for noncompliance with the terms of provider agreements under subd. 9. or certification criteria established under subd. 11.

49.45(2)(a)14. 14. Assure due process in implementing subds. 12. and 13. by providing written notice, a fair hearing and a written decision.

49.45(2)(a)15. 15. Routinely provide notification to persons eligible for medical assistance, or such persons’ guardians, of the department’s access to provider records.

49.45(2)(a)16. 16. Notify the joint committee on finance and appropriate standing committees in each house of the legislature prior to renewing, extending or amending the claims processing contract under the medical assistance program.

49.45(2)(a)18. 18. Conduct outreach for the early and periodic screening, diagnosis and treatment program as required under 42 CFR 441. This activity is limited to persons under 21 years of age who have been determined to be eligible for medical assistance.

49.45(2)(a)19. 19. Contract with a county department under s. 46.21, 46.23, 51.42 or 51.437 to perform preadmission screening and resident review under sub. (6c).

49.45(2)(a)20. 20. Submit a report, by May 1, 1991, and annually thereafter, to the joint committee on finance on the participation rates of children in the early and periodic screening and diagnosis program.

49.45(2)(a)22. 22. After consulting with counties, independent living centers, consumer organizations and home health agencies, periodically identify those barriers to the provision of personal care services under s. 49.46 (2) (b) 6. j. which lead to a failure to respond to the needs and preferences of individuals who are eligible for these services and act to remove the barriers to the extent possible.

49.45(2)(a)23. 23. Promulgate rules that define “supportive services”, “personal services” and “nursing services” provided in a certified residential care apartment complex, as defined under s. 50.01 (6d), for purposes of reimbursement under s. 46.277 (5) (e).

49.45(2)(a)24. 24. In consultation with hospitals, health maintenance organizations, county departments of social services and of human services and other interested parties, develop and, not later than January 1, 1999, implement a process for expediting medical assistance eligibility determinations for persons in urgent medical situations. The department shall promulgate any rules necessary for the implementation of that process.

49.45(2)(a)24m. 24m. Promulgate rules that require that the written plan of care for persons receiving personal care services under medical assistance be reviewed by a registered nurse at least every 60 days. The rules shall provide that the written plan of care shall designate intervals for visits to the recipient’s home by a registered nurse as part of the review of the plan of care. The designated intervals for visits shall be based on the individual recipient’s needs, and each recipient shall be visited in his or her home by a registered nurse at least once in every 12-month period. The rules shall also provide that a visit to the recipient is also required if, in the course of the nurse’s review of the plan of care, there is evidence that a change in the recipient’s condition has occurred that may warrant a change in the plan of care.

49.45(2)(b) (b) The department may:

49.45(2)(b)1. 1. Direct a county department under s. 46.215, 46.22 or 46.23 to perform other functions, responsibilities and services, including any functions related to health maintenance organizations, limited service health organizations and preferred provider plans.

49.45(2)(b)2. 2. Contract with any organization whether or not organized for profit to administer, in full or in part, the benefits under the medical assistance program including prepaid health care. The department shall accept bids on contracts for administrative services and services evaluating the medical assistance program as provided in ch. 16, but may accept the contract deemed most advantageous for claims processing services; or contract with any insurer authorized under the insurance code of this state to insure the program in full or in part and on behalf of the department. The department shall submit a report each December 31 to the governor, the joint committee on finance and the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding the effectiveness of the management information system for monitoring and analyzing medical assistance expenditures.

49.45(2)(b)3. 3. Audit all claims filed by any contractor making the payment of benefits paid under ss. 49.46 to 49.471 and make proper fiscal adjustments.

49.45(2)(b)4. 4. Audit claims filed by any provider of medical assistance, and as part of that audit, request of any such provider, and review, medical records of individuals who have received benefits under the medical assistance program.

49.45(2)(b)5. 5. Enter into contracts with providers who donate their services at no charge or who provide services for reduced payments.

49.45(2)(b)6m. 6m. Limit the number of providers of particular services that may be certified under par. (a) 11. or the amount of resources, including employees and equipment, that a certified provider may use to provide particular services to medical assistance recipients, if the department finds that existing certified providers and resources provide services that are adequate in quality and amount to meet the need of medical assistance recipients for the particular services; and if the department finds that the potential for medical assistance fraud or abuse exists if additional providers are certified or additional resources are used by certified providers. The department shall promulgate rules to implement this subdivision.

49.45(2)(b)7. 7. Require, as a condition of certification under par. (a) 11., all providers of a specific service that is among those enumerated under s. 49.46 (2), 49.47 (6) (a), or 49.471 (11), as specified in this subdivision, to file with the department a surety bond issued by a surety company licensed to do business in this state. Providers subject to this subdivision provide those services specified under s. 49.46 (2), 49.47 (6) (a), or 49.471 (11) for which providers have demonstrated significant potential to violate s. 49.49 (3p) or (4m) (a) or 946.91 (2), (3) (a) or (b), (4), (5), or (6), to require recovery under par. (a) 10., or to need additional sanctions under par. (a) 13. The surety bond shall be payable to the department in an amount that the department determines is reasonable in view of amounts of former recoveries against providers of the specific service and the department’s costs to pursue those recoveries. The department shall promulgate rules to implement this subdivision that specify all of the following:

49.45(2)(b)7.a. a. Services under Medical Assistance for which providers have demonstrated significant potential to violate s. 49.49 (3p) or (4m) (a) or 946.91 (2), (3) (a) or (b), (4), (5), or (6), to require recovery under par. (a) 10., or to need additional sanctions under par. (a) 13.

49.45(2)(b)7.b. b. The amount or amounts of the surety bonds.

49.45(2)(b)7.c. c. Terms of the surety bond, including amounts, if any, without interest to be refunded to the provider upon withdrawal or decertification from the medical assistance program.

49.45(2)(b)8. 8. Require a person who takes over the operation, as defined in sub. (21) (ag), of a provider, to first obtain certification under par. (a) 11. for the operation of the provider, regardless of whether the person is currently certified. The department may withhold the certification required under this subdivision until any outstanding repayment under sub. (21) is made. The department shall promulgate rules to implement this subdivision.

49.45(2)(b)9. 9. After providing reasonable notice and opportunity for a hearing, charge an assessment to a provider that repeatedly has been subject to recoveries under par. (a) 10. a. because of the provider’s failure to follow identical or similar billing procedures or to follow other identical or similar program requirements. The assessment shall be used to defray in part the costs of audits and investigations by the department under sub. (3) (g) and may not exceed $1,000 or 200 percent of the amount of any such repeated recovery made, whichever is greater. The provider shall pay the assessment to the department within 10 days after receipt of notice of the assessment or the final decision after administrative hearing, whichever is later. The department may recover any part of an assessment not timely paid by offsetting the assessment against any medical assistance payment owed to the provider and may refer any unpaid assessments not collected in this manner to the attorney general, who may proceed with collection under this subdivision. Failure to timely pay in any manner an assessment charged under this subdivision, other than an assessment that is offset against any medical assistance payment owed to the provider, is grounds for decertification under par. (a) 12. A provider’s payment of an assessment does not relieve the provider of any other legal liability incurred in connection with the recovery for which the assessment is charged, but is not evidence of violation of a statute or rule. The department shall credit all assessments received under this subdivision to the appropriation account under s. 20.435 (4) (iL). The department shall promulgate rules to implement this subdivision.

49.45(2n) (2n) Report on Medical Assistance program changes and finances.

49.45(2n)(a) (a) In this subsection, “Medical Assistance program” includes any program operated under this subchapter, demonstration program operated under 42 USC 1315, and program operated under a waiver of federal law relating to medical assistance that is granted by the federal department of health and human services.