Chapter 49

49.45(5)(ag)7. 7. Denial of an enrollee, who is a resident of a rural area with only one care management organization or managed care organization, to obtain services outside the organization’s network of contracted providers.

49.45(5)(ar) (ar) If a federal regulation specifies a different time limit to request a hearing than par. (a) or (ag), the time limit in the federal regulation shall apply.

49.45(5)(b) (b)

49.45(5)(b)1. 1. Upon receipt of a timely petition under par. (a) the department shall give the applicant or recipient reasonable notice and opportunity for a fair hearing. The department may make such additional investigation as it considers necessary. Notice of the hearing shall be given to the applicant or recipient and, if a county department under s. 46.215, 46.22, or 46.23 is responsible for making the medical assistance determination, to the county clerk of the county. The county may be represented at such hearing. The department shall render its decision as soon as possible after the hearing and shall send a copy of its decision to the applicant or recipient, to the county clerk, and to any county officer charged with administration of the Medical Assistance program. The decision of the department shall have the same effect as an order of a county officer charged with the administration of the Medical Assistance program. The decision shall be final, but may be revoked or modified as altered conditions may require. The department shall deny a petition for a hearing or shall refuse to grant relief if:

49.45(5)(b)1.a. a. The petitioner withdraws the petition in writing.

49.45(5)(b)1.b. b. The sole issue in the petition concerns an automatic payment adjustment or change that affects an entire class of recipients and is the result of a change in state or federal law.

49.45(5)(b)1.c. c. The petitioner abandons the petition. Abandonment occurs if the petitioner fails to appear in person or by representative at a scheduled hearing without good cause, as determined by the department.

49.45(5)(b)1.d. d. The issue is an adverse benefit determination described in par. (ag) 1. to 7. made by a care management organization or managed care organization and the person requesting the hearing has not exhausted the internal appeal procedure with the organization.

49.45(5)(b)2. 2. If a recipient requests a hearing within the timely notice period specified in 42 CFR 431.231 (c), medical assistance coverage shall not be suspended, reduced, or discontinued until a decision is rendered after the hearing but medical assistance payments made pending the hearing decision may be recovered by the department if the contested decision or failure to act is upheld. If a county department is responsible for making the medical assistance determination, the department shall notify the county department of the county in which the recipient resides that the recipient has requested a hearing. Medical assistance coverage shall be suspended, reduced, or discontinued if:

49.45(5)(b)2.a. a. The recipient is contesting a state or federal law or a change in state or federal law and not the determination of the payment made on the recipient’s behalf.

49.45(5)(b)2.b. b. The recipient is notified of a change in his or her medical assistance coverage while the hearing decision is pending but the recipient fails to request a hearing on the change.

49.45(5)(b)3. 3. The recipient shall be promptly informed in writing if medical assistance is to be suspended, reduced or terminated pending the hearing decision.

49.45(5g) (5g) Payments to tribes.

49.45(5g)(a) (a) Tribal care coordination agreements. A tribal health care provider’s care coordination agreement with a nontribal health care provider shall meet federal requirements, including that a service provided by the nontribal health care provider be at the request of the tribal health care provider on behalf of a tribal member who remains in the tribal health care provider’s care according to the care coordination agreement; that both the tribal health care provider and nontribal health care provider are providers, as defined in s. 49.43 (10); that an established relationship exists between the tribal health care provider and the tribal member; and that the care be provided pursuant to a written care coordination agreement.

49.45(5g)(b) (b) Amount and distribution of payments.

49.45(5g)(b)1. 1. From the appropriation account under s. 20.435 (4) (b), the department shall make payments to eligible governing bodies of federally recognized American Indian tribes or bands or tribal health care providers in an amount and manner determined by the department. The department shall determine payment amounts on the basis of the difference between the state share of medical assistance payments paid for services rendered to tribal members for whom a care coordination agreement with nontribal health care providers is in place and the state share of medical assistance payments that would have been paid for those services absent a care coordination agreement with nontribal partners.

49.45(5g)(b)2. 2. The department shall withhold from the payments under subd. 1. the state share of administrative costs associated with carrying out this subsection, up to 10 percent of the amounts calculated in subd. 1.

49.45(5g)(b)3. 3. Federally recognized American Indian tribes or bands may use funds paid under this subsection for health-related purposes. The department shall consult biennially with tribes to determine the timing and distribution of payments.

49.45(5m) (5m) Supplemental funding for rural hospitals.

49.45(5m)(am) (am) Notwithstanding sub. (3) (e), from the appropriation accounts under s. 20.435 (4) (b), (gm), (o), (w) and (xc), the department shall distribute not more than $5,000,000 in each fiscal year, to provide supplemental funds to rural hospitals that, as determined by the department, have high utilization of inpatient services by patients whose care is provided from governmental sources, except that the department may not distribute funds to a rural hospital to the extent that the distribution would exceed any limitation under 42 USC 1396b (i) (3).

49.45(5m)(b) (b) The supplemental funding for rural hospitals under par. (am) shall be based on the utilization, by recipients of medical assistance, of the total inpatient days of a rural hospital in relation to that utilization in other rural hospitals.

49.45(5r) (5r) Supplemental funding for uncompensated care. Notwithstanding sub. (3) (e), from the appropriation account under s. 20.435 (4) (w), the department shall distribute $3,000,000 in each fiscal year to the University of Wisconsin Hospital and Clinics for care that is not otherwise compensated, except that the department may not make payments that exceed limitations based on customary charges under 42 USC 1396b (i) (3).

49.45(6b) (6b) Centers for the developmentally disabled. From the appropriation under s. 20.435 (2) (gk), the department may reimburse the cost of services provided by the centers for the developmentally disabled. Beginning in fiscal year 2009-10, following each placement made under s. 46.275 that involves a relocation from a center for the developmentally disabled, the department shall reduce the reimbursement to the center by an amount, as determined by the department for each placement, that is equal to the nonfederal share of the costs for the placement under s. 46.275.

49.45(6c) (6c) Preadmission screening and resident review.

49.45(6c)(a) (a) Definitions. In this subsection:

49.45(6c)(a)1. 1. “Active treatment for developmental disability” means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual’s acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual’s current optimal functional status. “Active treatment for developmental disability” does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.

49.45(6c)(a)2. 2. “Active treatment for mental illness” means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under ch. 448 and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.

49.45(6c)(a)3. 3. “County department” means a department under s. 46.21, 46.23, 51.42 or 51.437.

49.45(6c)(a)4. 4. “Developmental disability” means any of the following:

49.45(6c)(a)4.a. a. Significantly subaverage general intellectual functioning that is concurrent with an individual’s deficits in adaptive behavior and that manifested during the individual’s developmental period.

49.45(6c)(a)4.b. b. A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in 42 CFR 435.1009.

49.45(6c)(a)5. 5. “Facility” has the meaning given under 42 USC 1396r (a).

49.45(6c)(a)6. 6. “Facility care” means services provided in a facility that are in conformity with 42 USC 1396r and that are payable under sub. (6m).

49.45(6c)(a)6m. 6m. “Intermediate facility” has the meaning given in s. 46.279 (1) (b).

49.45(6c)(a)7. 7. “Mental illness” has the meaning given in 42 USC 1396r (e).

49.45(6c)(b) (b) Preadmission screening. Except as provided in par. (e), every individual who applies for admission to a facility or to an institution for mental diseases shall be screened to determine if the individual has developmental disability or mental illness. The department or an entity to which the department has delegated authority shall screen every individual who has been identified as having a developmental disability or mental illness to determine if the individual needs facility care. If the individual is determined to need facility care, the department or an entity to which the department has delegated authority shall also assess the individual to determine if he or she requires active treatment for developmental disability or active treatment for mental illness. If the department or entity determines that the individual requires active treatment for developmental disability, the department or entity shall determine whether the level of care required by the individual that is provided by a facility could be provided safely in an intermediate facility or under a plan that is developed under s. 46.279 (4).

49.45(6c)(c) (c) Resident review. Except as provided in par. (e), the department or an entity to which the department has delegated authority shall review every resident of a facility or institution for mental diseases who has a developmental disability or mental illness and who has experienced a significant change in his or her physical or mental condition to determine all of the following:

49.45(6c)(c)1. 1. Whether the resident needs facility care.

49.45(6c)(c)2. 2. Whether the resident requires active treatment for developmental disability or active treatment for mental illness.

49.45(6c)(c)3. 3. If the department or entity determines under subd. 1. that the resident needs facility care and under subd. 2. that the resident requires active treatment for developmental disability, whether the level of care required by the resident that is provided by a facility could be provided safely in an intermediate facility or under a plan that is developed under s. 46.279 (4).

49.45(6c)(d) (d) Payment for facility care.

49.45(6c)(d)1. 1. No payment may be made under sub. (6m) to a facility or to an institution for mental diseases for the care of an individual who is otherwise eligible for medical assistance under s. 49.46, 49.47, or 49.471, who has developmental disability or mental illness and for whom under par. (b) or (c) it is determined that he or she does not need facility care, unless it is determined that the individual requires active treatment for developmental disability or active treatment for mental illness and has continuously resided in a facility or institution for mental diseases for at least 30 months prior to the date of the determination. If that individual requires active treatment and has so continuously resided, he or she shall be offered the choice of receiving active treatment for developmental disability or active treatment for mental illness in the facility or institution for mental diseases or in an alternative setting. A facility resident who has developmental disability or mental illness, for whom under par. (c) it is determined that he or she does not need facility care and who has not continuously resided in a facility for at least 30 months prior to the date of the determination, may not continue to reside in the facility after December 31, 1993, and shall, if the department so determines, be relocated from the facility after March 31, 1990, and before December 31, 1993. The county department shall be responsible for securing alternative residence on behalf of an individual who is required to be relocated from a facility under this subdivision, and the facility shall cooperate with the county department in the relocation.

49.45(6c)(d)2. 2. Payment may be made under sub. (6m) to a facility or institution for mental diseases for the care of an individual who is otherwise eligible for medical assistance under s. 49.46, 49.47, or 49.471 and who has developmental disability or mental illness and is determined under par. (b) or (c) to need facility care, regardless of whether it is determined under par. (b) or (c) that the individual does or does not require active treatment for developmental disability or active treatment for mental illness.

49.45(6c)(e) (e) Exceptions.

49.45(6c)(e)1. 1. Payment under sub. (6m) may be made to a facility and no screening under par. (b) or review under par. (c) is required for an individual who is medically diagnosed as having developmental disability or mental illness, and who is not a danger to himself or herself or to others, if, immediately after release from a hospital, the individual enters the facility, as part of a medically prescribed period of recovery, for a period not to exceed 30 days and the admission is approved by the department or an entity to which the department has delegated authority.

49.45(6c)(e)2. 2. Payment under sub. (6m) may be made to a facility or institution for mental diseases for an individual who is 65 years of age or older, is medically diagnosed as having developmental disability or mental illness, is not a danger to himself or herself or to others and is competent to make an independent decision, if, following screening under par. (b) or review under par. (c), all of the following apply:

49.45(6c)(e)2.a. a. It is determined that the individual needs facility care and requires active treatment for developmental disability or active treatment for mental illness.

49.45(6c)(e)2.b. b. The individual chooses not to participate in active treatment.

49.45(6c)(f) (f) Hearing. An individual for whom admission to a facility or institution for mental diseases is denied under par. (b) or for whom a determination under par. (c) results in prohibition of payment to a facility or institution for mental diseases under par. (d) and relocation from the facility to a facility or institution for mental diseases may request a hearing from the department.

49.45(6c)(g) (g) Rule making. The department shall promulgate all of the following rules:

49.45(6c)(g)1. 1. Establishing criteria and procedures for a determination by the department under par. (d) that a resident be relocated from a facility after March 31, 1990, and before December 31, 1993.

49.45(6c)(g)2. 2. Establishing standards for the conduct of hearings under par. (f).

49.45(6h) (6h) Liability for disallowances. If the department or the federal health care financing administration finds a skilled nursing facility or intermediate care facility in this state that provides care to medical assistance recipients for which the facility receives reimbursement under sub. (6m) to be an institution for mental diseases, the facility shall be liable for any retroactive federal medicaid disallowances for services provided after the date of the finding.

49.45(6j) (6j) Limitation on certain facility coverage. The department shall determine, under a method devised by the department, the average population during the period from January 1, 1987, to June 30, 1988, of persons in each skilled nursing facility or an intermediate care facility who are mentally ill and are aged 21 to 64, except persons under 22 years of age who were receiving medical assistance services in the facility prior to reaching age 21 and continuously thereafter. Beginning July 1, 1988, the payment under sub. (6m) for services provided by a facility to persons who are mentally ill and are within the age limitations specified in this subsection may not exceed the payment for the average population of these persons in that facility, as determined by the department.

49.45(6m) (6m) Payment to facilities.

49.45(6m)(a) (a) In this subsection:

49.45(6m)(a)1. 1. “Active treatment” has the meaning specified in 42 USC 1396r (e) (7) (G) (iii).

49.45(6m)(a)2. 2. “Cost center” means a group of similar facility expenses.

49.45(6m)(a)3. 3. “Facility” means a nursing home or a community-based residential facility that is licensed under s. 50.03 and that is certified by the department as a provider of medical assistance.

49.45(6m)(a)5. 5. “Nursing home” has the meaning given under s. 50.01 (3).

49.45(6m)(a)6. 6. “Resource Utilization Groupings” means a comparative resource utilization grouping that classifies each facility resident based on information obtained from performing, for the resident, a minimum data set assessment developed by the federal Centers for Medicare and Medicaid Services.

49.45(6m)(ag) (ag) Payment for care provided in a facility under this subsection made under s. 20.435 (4) (b), (gm), (o), (pa), or (w) shall, except as provided in pars. (bg), (bm), and (br), be determined according to a prospective payment system updated annually by the department. The payment system shall implement standards that are necessary and proper for providing patient care and that meet quality and safety standards established under subch. II of ch. 50 and ch. 150. The payment system shall reflect all of the following:

49.45(6m)(ag)1. 1. A prudent buyer approach to payment for services, under which a reasonable price recognizing selected factors that influence costs is paid for service that is of acceptable quality.

49.45(6m)(ag)2. 2. Except as provided in subd. 3r., standards established by the department that shall be based upon allowable costs incurred by facilities in the state as available from information submitted under par. (c) 3. and compiled by the department.

49.45(6m)(ag)3m. 3m. For each state fiscal year, rates that shall be set by the department based on information from cost reports for costs specified under par. (am) 1. bm., 4., 5m., and 6. for the most recently completed fiscal year of the facility.

49.45(6m)(ag)3p. 3p. For all costs specified under par. (am) 1. bm., an acuity-based payment rate system to which all of the following applies:

49.45(6m)(ag)3p.a. a. The system may incorporate acuity measurements under the most recent Resource Utilization Groupings methodology to determine factors for case-mix adjustment.

49.45(6m)(ag)3p.b. b. Four times annually, for each facility resident who is a Medical Assistance recipient on March 31, June 30, September 30, or December 31, as applicable, the system shall determine the average case-mix index by use of the factors specified under subd. 3p. a.

49.45(6m)(ag)3p.c. c. The system shall incorporate payment adjustments for dementia, behavioral needs, or other complex medical conditions.

49.45(6m)(ag)3p.d. d. The system may include incentives for providing high quality of care.

49.45(6m)(ag)3r. 3r. Flat-rate payment for all costs specified under par. (am) 1. a. and 2.

49.45(6m)(ag)5. 5. Consideration for special needs of facility residents.

49.45(6m)(ag)6. 6. Standards for capital payment that will be based upon replacement value of a facility as determined by a commercial estimator with which the department contracts and criteria and limitations as determined by the department.

49.45(6m)(ag)7. 7. Assurance of an acceptable quality of care for all medical assistance recipients provided nursing home care.

49.45(6m)(am) (am) In determining payments for a facility under the payment system in par. (ag), the department shall consider all of the following cost centers:

49.45(6m)(am)1. 1. Allowable direct care costs, including, if provided, any of the following:

49.45(6m)(am)1.a. a. Personal comfort supplies; medical supplies; over-the-counter drugs; and nonbillable services of a ward clerk, activity person, recreation person, social worker, volunteer coordinator, teacher for residents aged 22 and older, vocational counselor for residents aged 22 and older, religious person, therapy aide, therapy assistant, and counselor on resident living.

49.45(6m)(am)1.bm. bm. Nonbillable services of a registered nurse, licensed practical nurse, and nurse aide.

49.45(6m)(am)2. 2. Allowable support service costs, including the following allowable facility expenses:

49.45(6m)(am)2.a. a. Dietary service for the provision of meals to facility residents.

49.45(6m)(am)2.b. b. Environmental service for the provision of maintenance, housekeeping, laundry and security service.

49.45(6m)(am)2.c. c. Allowable fuel and utility costs, including the facility expenses that the department determines are allowable for the provision of electrical service, water and sewer services, and heat.

49.45(6m)(am)2.d. d. Allowable administrative and general costs, including costs related to the facility’s overall management and administration and allowable expenses that are not recognized or reimbursed in other cost centers and including the costs of commercial estimators approved by the department under par. (ar) 6.

49.45(6m)(am)4. 4. Property tax or municipal service costs paid by the owner of the facility for the facility.

49.45(6m)(am)5m. 5m. Allowable interest expense of the facility, less interest income of the facility and less interest income of affiliated entities, to the extent required under the approved state plan for services under 42 USC 1396.

49.45(6m)(am)6. 6. Capital payment necessary for the provision of service over time, including allowable facility expenses for suitable space, furnishings, property insurance and movable equipment for patient care.

49.45(6m)(ap) (ap) If the bed occupancy of a nursing home is below the minimum patient day occupancy standards that are established by the department under par. (ar) (intro.), the department may approve a request by the nursing home to delicense any of the nursing home’s licensed beds. If the department approves the nursing home’s request, all of the following apply:

49.45(6m)(ap)1. 1. The department shall delicense the number of beds in accordance with the nursing home’s request.

49.45(6m)(ap)2. 2. The department may not include the number of beds of the nursing home that the department delicenses under this paragraph in determining the costs per patient day under the minimum patient day occupancy standards under par. (ar).