Chapter 49

49.45(52) (52) Payment adjustments; federal funding for certain services.

49.45(52)(a) (a)

49.45(52)(a)1. 1. If the department provides the notice under par. (c) selecting the payment procedure in this paragraph, the department may, from the appropriation account under s. 20.435 (7) (b), make Medical Assistance payment adjustments to county departments under s. 46.215, 46.22, 46.23, 51.42, or 51.437 or to local health departments, as defined in s. 250.01 (4), as appropriate, for covered services under s. 49.46 (2) (a) 2. and 4. d. and f. and (b) 6. b., c., f., fm., g., j., k., L., Lm., and m., 9., 12., 12m., 13., 15., and 16., except for services specified under s. 49.46 (2) (b) 6. b. and c. provided to children participating in the early intervention program under s. 51.44. Payment adjustments under this paragraph shall include the state share of the payments. The total of any payment adjustments under this paragraph and Medical Assistance payments made from appropriation accounts under s. 20.435 (4) (b), (gm), (o), and (w), may not exceed applicable limitations on payments under 42 USC 1396a (a) (30) (A).

49.45(52)(a)2. 2. The department may require a county department or local health department to submit a certified cost report that meets the requirements of the federal department of health and human services for covered services described in subd. 1.

49.45(52)(b) (b) If the department provides the notice under par. (c) selecting the payment procedure in this paragraph, all of the following apply:

49.45(52)(b)1. 1. Annually, a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 shall submit a certified cost report that meets the requirements of the federal department of health and human services for covered services under s. 49.46 (2) (a) 2. and 4. d. and f. and (b) 6. b., c., f., fm., g., j., k., L., Lm., and m., 9., 12., 12m., 13., 15., and 16., except for services specified under s. 49.46 (2) (b) 6. b. and c. provided to children participating in the early intervention program under s. 51.44.

49.45(52)(b)2. 2. For services described under subd. 1., the department shall base the amount of a claim for federal medical assistance funds on certified cost reports submitted by county departments under subd. 1. to the extent the reports comply with federal requirements.

49.45(52)(b)3. 3. The department shall pay county departments a percentage of the federal funds claimed under subd. 2. for services described under subd. 1., which percentage is established in the most recent biennial budget.

49.45(52)(b)4. 4. The department may pay a local health department, as defined in s. 250.01 (4), that submits certified cost reports for services described under subd. 1. a percentage of the federal funds claimed for those services, which percentage is established in the most recent biennial budget.

49.45(52)(c) (c) The department shall select a payment procedure under either par. (a) or (b) and may change which procedure under par. (a) or (b) is selected. The department shall notify each county department and local health department, as applicable, of the selected payment procedure before the date on which payment for services is made under that selected or newly selected procedure.

49.45(53) (53) Payments for certain services. Beginning on January 1, 2003, the department may, from the appropriation account under s. 20.435 (7) (b), make Medical Assistance payments to providers for covered services under ss. 49.46 (2) (a) 4. d. and (b) 6. j. and m. and 49.471 (11) (f) that are provided before January 1, 2012.

49.45(53m) (53m) Coverage program for institutions for mental disease. Subject to any necessary waiver or other approval from the federal department of health and human services, or as otherwise permitted under federal law, the department shall, if federal funding participation is available, provide Medical Assistance coverage of services provided in an institution for mental disease to persons ages 21 to 64.

49.45(54) (54) Therapy for children participating in the birth to 3 program.

49.45(54)(a) (a) Federal share for county expenditures. If a county certifies to the department that the amount the county expended to provide services specified under s. 49.46 (2) (b) 6. b. and c. to children participating in the early intervention program under s. 51.44 exceeds the amount the county received as reimbursement under this section, based on reimbursement rates established by the department for those services, and the federal government pays the state the federal share of Medical Assistance for the amount by which the county expenditures exceed the reimbursement, the department may disburse the federal share to the county. A county that receives moneys under this paragraph shall expend the moneys for early intervention services under s. 51.44 or for services under the disabled children’s long-term support program, as defined in s. 46.011 (1g).

49.45(54)(c) (c) Special services. From the appropriations under s. 20.435 (4) (b) and (o) and (7) (bt), the department may pay the costs of services provided under the early intervention program under s. 51.44 that are included in program participant’s individualized family service plan and that were not authorized for payment under the state Medicaid plan or a department policy before July 1, 2017, including any services under the early intervention program under s. 51.44 that are delivered by a type of provider that becomes certified to provide Medical Assistance service on July 1, 2017, or after.

49.45(56) (56) Disease management program. Based on the health conditions identified by the physical health risk assessments, if performed under sub. (57), the department shall develop and implement, for Medical Assistance recipients, disease management programs. These programs shall have at least the following characteristics:

49.45(56)(a) (a) The use of information science to improve health care delivery by summarizing a patient’s health status and providing reminders for preventive measures.

49.45(56)(b) (b) Educating health care providers on health care process improvement by developing best practice models.

49.45(56)(c) (c) The improvement and expansion of care management programs to assist in standardization of best practices, patient education, support systems, and information gathering.

49.45(56)(d) (d) Establishment of a system of provider compensation that is aligned with clinical quality, practice management, and cost of care.

49.45(56)(e) (e) Focus on patient care interventions for certain chronic conditions, to reduce hospital admissions.

49.45(57) (57) Physical health risk assessment. The department shall encourage each individual who is determined on or after October 27, 2007, to be eligible for Medical Assistance to receive a physical health risk assessment as part of the first physical examination the individual receives under Medical Assistance.

49.45(58) (58) Program for all-inclusive care for the elderly. The department may administer the program of all-inclusive care for the elderly under 42 USC 1396u-4.

49.45(59) (59) Health maintenance organization payments to hospitals.

49.45(59)(a) (a) The department shall, from the appropriation accounts under s. 20.435 (4) (xc) and (xe), pay each health maintenance organization with which it contracts to provide medical assistance a monthly amount that the health maintenance organization shall use to make payments to hospitals under par. (b).

49.45(59)(b) (b) Health maintenance organizations shall pay all of the moneys they receive under par. (a) to eligible hospitals, as defined in s. 50.38 (1), within 15 days after receiving the moneys. The department shall specify in contracts with health maintenance organizations to provide medical assistance a method that health maintenance organizations shall use to allocate the amounts received under par. (a) among eligible hospitals based on the number of discharges from inpatient stays and the number of outpatient visits for which the health maintenance organization paid such a hospital in the previous month for enrollees who are recipients of medical assistance. Payments under this paragraph shall be in addition to any amount that a health maintenance organization is required by agreement between the health maintenance organization and a hospital to pay the hospital for providing services to the health maintenance organization’s enrollees.

49.45(59)(c) (c) Each health maintenance organization that provides medical assistance shall report to the department each month the amount it paid each hospital under par. (b) and the percentage of the total payments it made under par. (b) that it paid to each hospital.

49.45(59)(d) (d) Each health maintenance organization that provides medical assistance shall report monthly to each hospital to which the health maintenance organization makes payments under par. (b) such information regarding the payments that the department specifies in its contract with the health maintenance organization to provide medical assistance.

49.45(59)(e) (e)

49.45(59)(e)1. 1. If the department determines that a health maintenance organization has not complied with a requirement under pars. (b) to (d), the department shall order the health maintenance organization to comply with the requirement within 15 days after the department’s determination of noncompliance.

49.45(59)(e)2. 2. The department may terminate a contract with a health maintenance organization to provide medical assistance if the health maintenance organization fails to comply with a requirement under pars. (b) to (d).

49.45(59)(e)3. 3. The department may audit a health maintenance organization to determine whether the health maintenance organization has complied with the requirements under pars. (b) to (d).

49.45(59)(f) (f) The department shall specify in contracts with health maintenance organizations to provide medical assistance the method for adjusting payments under par. (b) to correct a health maintenance organization’s inaccurate counting of inpatient discharges or outpatient visits in calculating a monthly payment to a hospital under par. (b).

49.45(59)(g) (g) If a health maintenance organization and hospital do not agree on the amount of a monthly payment that the health maintenance organization is required to pay the hospital under par. (b), either the health maintenance organization or the hospital, within 6 months after the first day of the month in which the payment is due, may request that the department determine the amount of the payment. The department shall determine the amount of the payment within 60 days after the request for a determination is made. The health maintenance organization or hospital is, upon request, entitled to a contested case hearing under ch. 227 on the department’s determination.

49.45(60) (60) Savings account program. The department shall submit to the federal department of health and human services a request for a waiver of federal Medicaid law to establish and implement a savings account program that is similar in function and operation to health savings accounts in the Medical Assistance program under this subchapter. The department shall exclude from any requirement to have a Medical Assistance savings account under the waiver request under this subsection any individual who is elderly, blind, or disabled and any child.

49.45(61) (61) Services provided through telehealth and communications technology.

49.45(61)(a) (a) In this subsection:

49.45(61)(a)1. 1. “Asynchronous telehealth service” is telehealth that is used to transmit medical data about a patient to a provider when the transmission is not a 2-way, real-time, interactive communication.

49.45(61)(a)2. 2. “Interactive telehealth” means telehealth delivered using multimedia communication technology that permits 2-way, real-time, interactive communications between a certified provider of Medical Assistance at a distant site and the Medical Assistance recipient or the recipient’s provider.

49.45(61)(a)3. 3. “Remote patient monitoring” is telehealth in which a patient’s medical data is transmitted to a provider for monitoring and response if necessary.

49.45(61)(a)4. 4. “Telehealth” means a practice of health care delivery, diagnosis, consultation, treatment, or transfer of medically relevant data by means of audio, video, or data communications that are used either during a patient visit or a consultation or are used to transfer medically relevant data about a patient. “Telehealth” does not include communications delivered solely by audio-only telephone, facsimile machine, or electronic mail unless the department specifies otherwise by rule.

49.45(61)(b) (b) Subject to par. (e), the department shall provide reimbursement under the Medical Assistance program for any benefit that is a covered benefit under s. 49.46 (2) and that is delivered by a certified provider for Medical Assistance through interactive telehealth.

49.45(61)(c) (c) Subject to par. (e), the department shall provide reimbursement under the Medical Assistance program for all of the following:

49.45(61)(c)1. 1. Except as provided by the department by rule, a consultation pertaining to a Medical Assistance recipient conducted through interactive telehealth between a certified provider of Medical Assistance and the Medical Assistance recipient’s treating provider that is certified under Medical Assistance.

49.45(61)(c)2. 2. Except as provided by the department by rule, remote patient monitoring of a Medical Assistance recipient and asynchronous telehealth service in which the medical data pertains to a Medical Assistance recipient.

49.45(61)(c)3. 3. Except as provided by the department by rule and subject to par. (e) 4., services that are covered under the Medicare program under 42 USC 1395 et seq. for which the federal department of health and human services provides Medical Assistance federal financial participation and that are any of the following:

49.45(61)(c)3.a. a. Telehealth services, as defined under 42 USC 1395m (m) (4) (F).

49.45(61)(c)3.b. b. Remote physiologic monitoring.

49.45(61)(c)3.c. c. Remote evaluation of prerecorded patient information.

49.45(61)(c)3.d. d. Brief communication technology-based services.

49.45(61)(c)3.e. e. Care management services delivered through telehealth.

49.45(61)(c)3.f. f. Any other telehealth or communication technology-based services.

49.45(61)(c)4. 4. Any service that is not specified in subds. 1. to 3. or par. (b) that is provided through telehealth and that the department specifies by rule under par. (d) is a covered and reimbursable service under the Medical Assistance program.

49.45(61)(d) (d) The department shall promulgate rules specifying any services under par. (c) 4. that are reimbursable under Medical Assistance. The department may promulgate rules excluding services under par. (c) 1. to 3. from reimbursement under Medical Assistance. The department may promulgate rules specifying any telehealth service under par. (b) or (c) 1. or 2. that is provided solely by audio-only telephone, facsimile machine, or electronic mail as reimbursable under Medical Assistance.

49.45(61)(e) (e)

49.45(61)(e)2. 2. The department may not require a certified provider of Medical Assistance that provides a reimbursable service under par. (b) or (c) to obtain an additional certification or meet additional requirements solely because the service was delivered through telehealth, except that the department may require, by rule, that the transmission of information through telehealth be of sufficient quality to be functionally equivalent to face-to-face contact. The department may apply any requirement that is applicable to a covered service that is not provided through telehealth to any service provided under par. (b) or (c).

49.45(61)(e)3. 3. The department may not limit coverage or reimbursement of a service provided under par. (b) or (c) based on the location of the Medical Assistance recipient when the service is provided.

49.45(61)(e)4. 4. The department may not cover or provide reimbursement under Medical Assistance for a service described under par. (c) 3. that is first covered under the Medicare program under 42 USC 1395 et seq. after July 1, 2019, until the date that is one year after the date the service is covered under the Medicare program or the date the secretary explicitly approves the service as a Medical Assistance covered service, whichever is earlier.

49.45(61m) (61m) Services provided through telehealth by out-of-state providers.

49.45(61m)(a) (a) In this subsection, “telehealth” has the meaning given in sub. (61) (a) 4.

49.45(61m)(b) (b) The department may not require a health care provider that is licensed, certified, registered, or otherwise authorized to provide health care services in this state and that exclusively offers health care services in this state through telehealth to maintain a physical address or site in this state to be eligible for enrollment as a certified provider under the Medical Assistance program.

49.45(61m)(c) (c) The department may not require a provider group with health care providers that are licensed, certified, registered, or otherwise authorized to provide health care services in this state and that exclusively offer health care services in this state through telehealth to maintain a physical address or site in this state to be eligible for enrollment as a provider group under the Medical Assistance program.

49.45 History History: 1971 c. 40 s. 93; 1971 c. 42, 125; 1971 c. 213 s. 5; 1971 c. 215, 217, 307; 1973 c. 62, 90, 147; 1973 c. 333 ss. 106g, 106h, 106j, 201w; 1975 c. 39; 1975 c. 223 s. 28; 1975 c. 224 ss. 54h, 56 to 59m; 1975 c. 383 s. 4; 1975 c. 411; 1977 c. 29, 418; 1979 c. 34 ss. 837f to 838, 2102 (20) (a); 1979 c. 102, 177, 221, 355; 1981 c. 20 ss. 839 to 854, 2202 (20) (r); 1981 c. 93, 317; 1983 a. 27 ss. 1046 to 1062m, 2200 (42); 1983 a. 245, 447, 527; 1985 a. 29 ss. 1026m to 1031d, 3200 (23), (56), 3202 (27); 1985 a. 120, 176, 269; 1985 a. 332 ss. 91, 251 (5), 253; 1985 a. 340; 1987 a. 27 ss. 989r to 1000s, 2247, 3202 (24); 1987 a. 186, 307, 339, 399; 1987 a. 403 s. 256; 1987 a. 413; 1989 a. 6; 1989 a. 31 ss. 1402 to 1452g, 2909g, 2909i; 1989 a. 107, 173, 310, 336, 351, 359; 1991 a. 22, 39, 80, 250, 269, 315, 316; 1993 a. 16 ss. 1362g to 1403, 3883; 1993 a. 27, 107, 112, 183, 212, 246, 269, 335, 356, 437, 446, 469; 1995 a. 20; 1995 a. 27 ss. 2947 to 3002r, 7299, 9126 (19), 9130 (4), 9145 (1); 1995 a. 191, 216, 225, 289, 303, 398, 417, 457; 1997 a. 3, 13, 27, 114, 175, 191, 237, 252, 293; 1999 a. 9, 63, 103, 180, 185; 2001 a. 13, 16, 35, 38, 57, 67, 104, 109; 2003 a. 33, 318, 321; 2005 a. 22; 2005 a. 25 ss. 1120 to 1149f, 2503 to 2510; 2005 a. 107, 165, 253, 254, 264, 301, 340, 386, 441; 2007 a. 20 ss. 1513 to 1559h, 9121 (6) (a); 2007 a. 90, 97, 104, 141, 153; 2009 a. 2, 28, 113, 177, 180, 190, 221, 334, 342; 2011 a. 10, 32, 120, 126, 158, 192, 209, 258; 2011 a. 260 s. 81; 2013 a. 20, 92; 2013 a. 116 ss. 2, 3, 29, 30; 2013 a. 117 ss. 2, 4; 2013 a. 130; 2013 a. 165 s. 114; 2013 a. 226; 2015 a. 55, 152, 153, 172, 294; 2017 a. 34, 59, 138, 185, 262, 268, 271, 279, 306, 344, 370; 2019 a. 8 ss. 15, 71; 2019 a. 9, 56, 88, 100, 105, 122, 186; 2021 a. 22; 2021 a. 23 ss. 8, 9, 71; 2021 a. 58, 88, 123, 131, 228; 2021 a. 238 s. 44; 2021 a. 239 s. 74; 2021 a. 240 ss. 29, 30; 2021 a. 248, 251; 2023 a. 12, 19, 55, 81, 83, 177, 180, 182, 184, 212, 229, 249; s. 13.92 (1) (bm) 2.; s. 13.92 (2) (i).

49.45 Cross-reference Cross-reference: See also chs. HA 3 and DHS 35, 101, 102, 103, 104, 105, 106, 107, and 108, Wis. adm. code.

49.45 Annotation Wisconsin has no medical assistance plan independent of Medicaid. Non-residence under federal Medicaid regulations is determinative of medical assistance eligibility. Pope v. DHSS, 187 Wis. 2d 207, 522 N.W.2d 22 (Ct. App. 1994).

49.45 Annotation Section 49.89, not sub. (19) (a) 2., specifically addresses assignment of actions and subrogation of rights by a public assistance recipient who is injured and has a tort claim against a third party. Ellsworth v. Schelbrock, 2000 WI 63, 235 Wis. 2d 678, 611 N.W.2d 764, 98-0294.

49.45 Annotation Sub. (7) (a) requires that a health care facility resident who is a recipient of certain funds apply those funds toward the cost of care in the health care facility. The agent who receives funds from the federal Social Security Administration on behalf of the resident has an obligation to pay the funds to the health care facility and is subject to an action for conversion. Methodist Manor of Waukesha, Inc. v. Martin, 2002 WI App 130, 255 Wis. 2d 707, 647 N.W.2d 409, 01-2877.

49.45 Annotation Medical assistance eligibility is not a default position that the Department of Health and Family Services must rebut, but a privilege for which the applicant must prove eligibility. An initial determination of eligibility does not preclude a later redetermination of that status. The state has an ongoing duty to ensure that a medical assistance recipient is eligible, and the recipient bears the ongoing burden of proving eligibility. Estate of Gonwa v. DHFS, 2003 WI App 152, 265 Wis. 2d 913, 668 N.W.2d 122, 02-2901.

49.45 Annotation Sub. (2) (a) 9. does not direct the Department of Health and Family Services to promulgate rules regarding conditions of reimbursement, but instead to include those conditions in a contract with the provider. A department handbook provision requiring odometer readings is a condition of reimbursement, not an administrative rule requiring promulgation. Meda-Care Vans of Waukesha, Inc. v. Division of Hearings & Appeals, 2007 WI App 140, 302 Wis. 2d 499, 736 N.W.2d 147, 05-2979.

49.45 Annotation Medicaid reimbursement is governed by the “Methods of Implementation for Wisconsin Medicaid Nursing Home Payment Rates” adopted by the Department of Health and Family Services (DHFS) under sub. (6m). Sub. (6m) (e) requires DHFS to establish an appeals mechanism within DHFS to review petitions for modifications to any payment under sub. (6m). The “Methods” provides that the nursing home appeals board is available for redress in the event a facility has extraordinary fiscal circumstances. DHFS does not have the authority to grant an increased reimbursement rate absent appeals board approval. Park Manor, Ltd. v. DHFS, 2007 WI App 176, 304 Wis. 2d 512, 737 N.W.2d 88, 06-2311.

49.45 Annotation Sub. (3) (f) gives the Department of Health Services (DHS) the authority to recoup payments made to a Medicaid provider when that provider failed to maintain records as required by DHS for verification of the provider’s claims, regardless of whether other records possessed by the provider show that the provider actually rendered the services in question. In this case, the records were not required, so DHS could not recoup payments. Newcap, Inc. v. Department of Health Services, 2018 WI App 40, 383 Wis. 2d 515, 916 N.W.2d 173, 17-1432.

49.45 Annotation When read together, sub. (3) (f) 1. and 2. make it clear that a provider has an obligation to make the required records available to the Department of Health Services (DHS) at the time of an audit in order to allow DHS to verify the provider’s claims, and DHS may recoup payments already made if the provider fails to do so. Newcap, Inc. v. Department of Health Services, 2018 WI App 40, 383 Wis. 2d 515, 916 N.W.2d 173, 17-1432.

49.45 Annotation The fact that this section does not address testamentary trusts is not an indication the legislature gave consideration to whether payments from testamentary trusts should be included as unearned income for medical assistance eligibility purposes and concluded to the contrary. Tarrant v. Department of Health Services, 2019 WI App 45, 388 Wis. 2d 461, 933 N.W.2d 145, 18-1299.

49.45 Annotation Under sub. (3) (f) 1. and 2., the Department of Health Services (DHS) may recoup Medicaid payments from service providers only in cases in which DHS cannot verify one of the following: 1) the actual provision of covered services; 2) that the reimbursement claim is appropriate for the service provided; or 3) that the reimbursement claim is accurate for the service provided. A record imperfection alone is not an independent basis for recouping payments. DHS’s practice of seeking recoupment of payments simply because a post-payment audit found that records were not perfect exceeded DHS’s recoupment authority. Papa v. Department of Health Services, 2020 WI 66, 393 Wis. 2d 1, 946 N.W.2d 17, 16-2082.

49.45 Annotation A contract between the trustees of a nursing home and a medical clinic for exclusive medical services under the medical assistance act for residents of such home violates public policy of this state. 59 Atty. Gen. 68.

49.45 Annotation Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Discussing medical assistance. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).

49.45 Annotation Medical Assistance & Divestment. Canellos. Wis. Law. Aug. 1991.

49.452 49.452 Counting promissory notes as assets for certain Medical Assistance programs.

49.452(1) (1) In this section, “promissory note” means a written, unconditional agreement, given in return for goods, money loaned, or services rendered, under which one party promises to pay another party a specified sum of money at a specified time or on demand.

49.452(2) (2) If an individual’s assets are counted when determining or redetermining the individual’s financial eligibility for Medical Assistance, the department shall include a promissory note as a countable asset if all of the following apply:

49.452(2)(a) (a) The individual applying for or receiving benefits under Medical Assistance or his or her spouse provided the goods, money loaned, or services rendered for the promissory note.

49.452(2)(b) (b) The promissory note was entered into or purchased on or after July 14, 2015.

49.452(2)(c) (c) The promissory note is negotiable, assignable, and enforceable and does not contain any terms making it unmarketable.

49.452(3) (3) A promissory note is presumed to be negotiable and its asset value is the outstanding principal balance at the time the individual applies for Medical Assistance or at the time the individual’s eligibility for Medical Assistance is redetermined, unless the individual shows by credible evidence from a knowledgeable source that the note is nonnegotiable or has a different current market value, which will then be considered the asset value.

49.452 History History: 2015 a. 55.

49.453 49.453 Divestment of assets.

49.453(1) (1) Definitions. In this section and in s. 49.454:

49.453(1)(a) (a) “Assets” has the meaning given in 42 USC 1396p (h) (1).

49.453(1)(am) (am) “Covered individual” means an individual who is an institutionalized individual or a noninstitutionalized individual.