Chapter 49

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.

49.453(1)(ar) (ar) “Community spouse” means the spouse of either the institutionalized person or the noninstitutionalized person.

49.453(1)(b) (b) “Disabled” has the meaning given in 42 USC 1382c (a) (3).

49.453(1)(c) (c) “Expected value of the benefit” means the amount that an irrevocable annuity will pay to the annuitant during his or her expected lifetime as determined under sub. (4) (c).

49.453(1)(d) (d) “Income” has the meaning given in 42 USC 1396p (h) (2).

49.453(1)(e) (e) “Institutionalized individual” has the meaning given in 42 USC 1396p (h) (3).

49.453(1)(f) (f) “Look-back date” means either of the following:

49.453(1)(f)1m. 1m. For transfers made before February 8, 2006, the date that is 36 months before, or with respect to payments from a trust or portions of a trust that are treated as assets transferred by the covered individual under s. 49.454 (2) (c) or (3) (b) the date that is 60 months before:

49.453(1)(f)1m.a. a. For a covered individual who is an institutionalized individual, the first date on which the covered individual is both an institutionalized individual and has applied for medical assistance.

49.453(1)(f)1m.b. b. For a covered individual who is a noninstitutionalized individual, the date on which the covered individual applies for medical assistance or, if later, the date on which the covered individual, his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transferred assets for less than fair market value.

49.453(1)(f)2m. 2m. For all transfers made on or after February 8, 2006, the date that is 60 months before the dates specified in subd. 1m. a. and b.

49.453(1)(fm) (fm) “Noninstitutionalized individual” has the meaning given in 42 USC 1396p (h) (4).

49.453(1)(g) (g) “Reasonable compensation” means the prevailing local market rate of compensation for the service or care provided.

49.453(1)(h) (h) “Relative” means an individual who is related to another by blood, marriage or adoption.

49.453(1)(i) (i) “Resources” has the meaning given in 42 USC 1396p (h) (5).

49.453(1)(j) (j) “Trust” has the meaning given in 42 USC 1396p (d) (6).

49.453(2) (2) Ineligibility for medical assistance for certain services.

49.453(2)(a) (a) Institutionalized individuals. Except as provided in sub. (8), if an institutionalized individual or his or her spouse, or another person acting on behalf of the institutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the institutionalized individual’s look-back date, the institutionalized individual is ineligible for medical assistance for the following services for the period specified under sub. (3):

49.453(2)(a)1. 1. For nursing facility services.

49.453(2)(a)2. 2. For a level of care in a medical institution equivalent to that of a nursing facility.

49.453(2)(a)3. 3. For services under a waiver under 42 USC 1396n.

49.453(2)(b) (b) Noninstitutionalized individuals. Except as provided in sub. (8), if a noninstitutionalized individual or his or her spouse, or another person acting on behalf of the noninstitutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the noninstitutionalized individual’s look-back date, the noninstitutionalized individual is ineligible for medical assistance for the following services for the period specified under sub. (3):

49.453(2)(b)1. 1. Services that are described in 42 USC 1396d (a) (7), (22) or (24).

49.453(2)(b)2. 2. Other long-term care services specified by the department by rule.

49.453(3) (3) Period of ineligibility.

49.453(3)(a) (a) The period of ineligibility under this subsection begins on either of the following for an applicant for Medical Assistance:

49.453(3)(a)1. 1. In the case of a transfer of assets made before February 8, 2006, the first day of the first month beginning on or after the look-back date during or after which assets have been transferred for less than fair market value and that does not occur in any other periods of ineligibility under this subsection.

49.453(3)(a)2. 2. In the case of a transfer of assets made on or after February 8, 2006, the first day of a month beginning on or after the look-back date during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance and would otherwise be receiving institutional level care described in sub. (2) (a) 1. to 3. based on an approved application for the care but for the application of the penalty period, whichever is later, and that does not occur during any other period of ineligibility under this subsection.

49.453(3)(ag) (ag) The period of ineligibility under this subsection for a transfer of assets made at the time the individual is receiving long-term care services through Medical Assistance begins on the first day of the month following the month in which the individual receives advance notice of the period of ineligibility.

49.453(3)(b) (b) Subject to par. (bc), the department shall determine the number of months of ineligibility as follows:

49.453(3)(b)1. 1. The department shall determine the total, cumulative uncompensated value of all assets transferred by the covered individual or his or her spouse on or after the look-back date.

49.453(3)(b)2. 2. The department shall determine the average monthly cost to a private patient of nursing facility services in the state at the time that the covered individual applied for medical assistance.