Chapter 49

49.475 History History: 1991 a. 39; 1999 a. 9; 2007 a. 20 ss. 1610 to 1626, 9121 (6) (a); 2011 a. 189; 2013 a. 20.

49.48 49.48 Denial, nonrenewal and suspension of certification of service providers based on certain delinquency in payment.

49.48(1) (1) Except as provided in sub. (1m), the department shall require each applicant to provide the department with the applicant’s social security number, if the applicant is an individual, as a condition of issuing or renewing a certification under s. 49.45 (2) (a) 11. as an eligible provider of services.

49.48(1m) (1m) If an individual who applies for or to renew a certification under sub. (1) does not have a social security number, the individual, as a condition of obtaining the certification, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. A certification issued or renewed in reliance upon a false statement submitted under this subsection is invalid.

49.48(2) (2) The department may not disclose any information received under sub. (1) to any person except to the department of children and families for the purpose of making certifications required under s. 49.857.

49.48(3) (3) The department shall deny an application for the issuance or renewal of a certification specified in sub. (1), shall suspend a certification specified in sub. (1) or may, under a memorandum of understanding under s. 49.857 (2), restrict a certification specified in sub. (1) if the department of children and families certifies under s. 49.857 that the applicant for or holder of the certificate is delinquent in the payment of court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse or fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings.

49.48 History History: 1997 a. 191; 1999 a. 9; 2007 a. 20.

49.485 49.485 False claims. Whoever knowingly presents or causes to be presented to any officer, employee, or agent of this state a false claim for medical assistance shall forfeit not less than $5,000 nor more than $10,000, plus 3 times the amount of the damages that were sustained by the state or would have been sustained by the state, whichever is greater, as a result of the false claim. The attorney general may bring an action on behalf of the state to recover any forfeiture incurred under this section.

49.485 History History: 2007 a. 20.

49.49 49.49 Medical assistance offenses.

49.49(1d) (1d) Damages. If any person is convicted under s. 946.91 (2), the state shall have a cause of action for relief against such person in an amount 3 times the amount of actual damages sustained as a result of any excess payments made in connection with the offense for which the conviction was obtained. Proof by the state of a conviction under s. 946.91 (2) in a civil action shall be conclusive regarding the state’s right to damages and the only issue in controversy shall be the amount, if any, of the actual damages sustained. Actual damages shall consist of the total amount of excess payments, any part of which is paid by state funds. In any such civil action the state may elect to file a motion in expedition of the action. Upon receipt of the motion, the presiding judge shall expedite the action.

49.49(3p) (3p) Prohibited provider charges. No provider may knowingly violate s. 609.91 (2).

49.49(4m) (4m) Prohibited conduct; forfeitures.

49.49(4m)(a) (a) No person, in connection with medical assistance, may:

49.49(4m)(a)1. 1. Knowingly make or cause to be made any false statement or representation of a material fact in any application for a benefit or payment.

49.49(4m)(a)2. 2. Knowingly make or cause to be made any false statement or representation of a material fact for use in determining rights to a benefit or payment.

49.49(4m)(a)3. 3. Knowingly conceal or fail to disclose any event of which the person has knowledge that affects his or her initial or continued right to a benefit or payment or affects the initial or continued right to a benefit or payment of any other person in whose behalf he or she has applied for or is receiving a benefit or payment.

49.49(4m)(b) (b) A person who violates this subsection may be required to forfeit not less than $100 nor more than $15,000 for each statement, representation, concealment or failure.

49.49(5) (5) County collection. Any county may retain 15 percent of state Medical Assistance funds that are recovered due to the efforts of a county employee or officer or, if the county initiates action by the department of justice, due to the efforts of the department of justice under s. 49.846. This subsection applies only to recovery of medical assistance that was provided as a result of fraudulent activity by a recipient or by a provider.

49.49(6) (6) Recovery. In addition to other remedies available under this section, the court may award the department of justice the reasonable and necessary costs of investigation, an amount reasonably necessary to remedy the harmful effects of the violation and the reasonable and necessary expenses of prosecution, including attorney fees, from any person who violates this section. The department of justice shall deposit in the state treasury for deposit in the general fund all moneys that the court awards to the department or the state under this subsection. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).

49.49(7) (7) Operation of nursing home or intermediate care facility by commission not prohibited.

49.49(7)(a) (a) In this subsection:

49.49(7)(a)1. 1. “Commission” means an entity that is created by contract between 2 or more political subdivisions under s. 66.0301 to operate a nursing home or intermediate care facility and to which all of the following apply:

49.49(7)(a)1.a. a. The entity is the named licensee for the nursing home or intermediate care facility.

49.49(7)(a)1.b. b. The entity is the certified provider under s. 49.45 (2) (a) 11. for the nursing home or intermediate care facility and is the recipient of medical assistance reimbursement for services provided by the nursing home or intermediate care facility.

49.49(7)(a)1.c. c. The entity owns or leases the building in which the nursing home or intermediate care facility is located.

49.49(7)(a)1.d. d. The entity provides or contracts for provision of nursing home or intermediate care facility services.

49.49(7)(a)1.e. e. The entity controls admissions and discharges from the nursing home or intermediate care facility.

49.49(7)(a)1.f. f. The entity allocates the costs of operating the nursing home or intermediate care facility, and of providing services to residents of the nursing home or intermediate care facility, among the political subdivisions that are parties to the contract and assesses each political subdivision that is a party to the contract the portion of the costs allocated to that political subdivision.

49.49(7)(a)2. 2. “Member” means a political subdivision that is a party to a contract to create a commission.

49.49(7)(a)3. 3. “Political subdivision” means a county, city, village, or town.

49.49(7)(b) (b) A commission’s imposition of an assessment on a member for the costs incurred by the commission to operate the nursing home or intermediate care facility and to provide services to residents of the nursing home or intermediate care facility is a charge internal to the commission and does not constitute billing a 3rd party for services provided on behalf of an individual.

49.49(7)(c) (c) A member’s payment of an assessment described under par. (b) is a transfer of funds internal to the commission and does not constitute a purchase of services on behalf of an individual, regardless of whether the payment is made from the member’s general fund, made pursuant to a purchase of services agreement between a member’s human services department or other department and the commission, or by a combination of these payment methods.

49.49(7)(d) (d) A commission’s imposition of an assessment described under par. (b), a member’s payment of the assessment as described under par. (c), and acceptance of the payment by the commission do not constitute conduct prohibited under s. 946.91 (6) or prohibited under s. DHS 106.04 (3), Wis. Adm. Code, in effect on May 26, 2010. It is the intent of the legislature to create a mechanism whereby 2 or more political subdivisions may share in the operation, use, and funding of a nursing home or intermediate care facility without violating 42 USC 1320a-7b (d) or 42 USC 1396a (a) (25) (C).

49.49 History History: 1977 c. 418; 1979 c. 89; 1981 c. 317; 1985 a. 29 s. 3202 (23); 1985 a. 269; 1989 a. 23, 31; 1995 a. 27; 1997 a. 283; 2001 a. 109; 2003 a. 309; 2007 a. 20; 2009 a. 283; 2013 a. 226; 2015 a. 195 s. 83.

49.49 Annotation The only state of mind requirement for a violation of sub. (1) (a) 1. is the intentional making or causing the making of a false statement that appears in an application; that anyone actually received a medical assistance benefit need not be proved. State v. Williams, 179 Wis. 2d 80, 505 N.W.2d 468 (Ct. App. 1993).

49.49 Annotation Sub. (3m) and related rules require medical assistance providers to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons. A private pay patient subsequently found retroactively eligible does not have a federally protected right to reimbursement from a medical assistance provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. Keup v. DHFS, 2004 WI 16, 269 Wis. 2d 59, 675 N.W.2d 755, 02-0456.

49.49 Annotation The state had a constitutional right to a jury trial on its claim under sub. (4m). State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232.

49.49 Annotation When the defendant hospital did not send bills directly to Medical Assistance patients, but rather filed liens against the patients’ potential settlements with a tortfeasor’s insurer, the liens did not constitute “direct charges upon” the patients and were therefore permissible under the plain language of the second prohibition in sub. (3m) (a). Gister v. American Family Mutual Insurance Co., 2012 WI 86, 342 Wis. 2d 496, 818 N.W.2d 880, 09-2795.

49.49 Annotation Sub. (6) permits recovery of attorney fees for private counsel hired by the state. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232.

49.49 Annotation Sub. (4m) (a) 2. unambiguously applies to the amount of payment as well as the right to be paid. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232.

49.49 Annotation Nursing home guarantor agreements may violate sub. (4) after a resident becomes certified Medicaid eligible. 76 Atty. Gen. 295.

49.493 49.493 Benefits under uninsured health plans.

49.493(1) (1) In this section:

49.493(1)(a) (a) “Department or contract provider” means the department, the county providing the medical benefits or assistance or a health maintenance organization that has contracted with the department to provide the medical benefits or assistance.

49.493(1)(b) (b) “Medical benefits or assistance” means medical benefits under s. 49.02 or 253.05 or medical assistance.

49.493(1)(c) (c) “Uninsured health plan” means a partially or wholly uninsured plan, including a plan that is subject to 29 USC 1001 to 1461, providing health care benefits.

49.493(2) (2) The providing of medical benefits or assistance constitutes an assignment to the department or contract provider, to the extent of the medical benefits or assistance provided, for benefits to which the recipient would be entitled under any uninsured health plan.

49.493(3) (3) An uninsured health plan may not do any of the following:

49.493(3)(a) (a) Exclude a person or a person’s dependent from coverage under the uninsured health plan because the person or the dependent is eligible for medical assistance.

49.493(3)(b) (b) Terminate its coverage of a person or a person’s dependent because the person or the dependent is eligible for medical assistance.

49.493(3)(c) (c) Provide different benefits of coverage to a person or the person’s dependent because the person or the dependent is eligible for medical assistance than it provides to persons and their dependents who are not eligible for medical assistance.

49.493(3)(d) (d) Impose on the department or contract provider, as assignee of a person or a person’s dependent who is covered under the uninsured health plan and who is eligible for medical benefits or assistance, requirements that are different from those imposed on any other agent or assignee of a person who is covered under the uninsured health plan.

49.493(4) (4) Benefits provided by an uninsured health plan shall be primary to medical benefits or assistance.

49.493 History History: 1991 a. 178, 214; 1993 a. 481; 1995 a. 27, 407; 1999 a. 32.

49.496 49.496 Recovery of correct medical assistance payments.

49.496(1) (1) Definitions. In this section:

49.496(1)(af) (af) “Decedent” means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.

49.496(1)(ah) (ah) “Disabled” has the meaning given in s. 49.468 (1) (a) 1.

49.496(1)(b) (b) “Home” means property in which a person has an ownership interest consisting of the person’s dwelling and the land used and operated in connection with the dwelling.

49.496(1)(bk) (bk) “Long-term care program” means any of the following:

49.496(1)(bk)1. 1. The family care program providing the benefit under s. 46.286.

49.496(1)(bk)2. 2. The self-directed services option that operates under a waiver from the secretary of the federal department of health and human services under 42 USC 1396n (c) in which an enrolled individual selects his or her own services and service providers.

49.496(1)(bk)3. 3. The family care partnership program that is an integrated health and long-term care program operated under an amendment to the state medical assistance plan under 42 USC 1396u-2 and a waiver under 42 USC 1396n (c).

49.496(1)(bk)4. 4. The program for all-inclusive care for the elderly under 42 USC 1396u-4.

49.496(1)(bk)5. 5. Any program that provides long-term care services and is operated by the department under an amendment to the state medical assistance plan under 42 USC 1396n (i) or 42 USC 1396u-2; a waiver of medical assistance laws under 42 USC 1396n (c), 42 USC 1396n (b) and (c), or 42 USC 1396u; or a demonstration project under 42 USC 1315 or 42 USC 1396n (c).

49.496(1)(bw) (bw) “Nonrecipient surviving spouse” means any person who was married to a recipient while the recipient was receiving services for which the cost may be recovered under sub. (3) (a) and who survived the recipient.

49.496(1)(c) (c) “Nursing home” has the meaning given in s. 50.01 (3).

49.496(1)(cm) (cm) “Property of a decedent” means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, revocable trust, or any other arrangement, excluding an irrevocable trust.

49.496(1)(d) (d) “Recipient” means a person who receives or received medical assistance.

49.496(2) (2) Liens on the homes of nursing home residents and inpatients at hospitals.

49.496(2)(a) (a) Except as provided in par. (b), the department may obtain a lien on a recipient’s home if the recipient resides in a nursing home, or if the recipient resides in a hospital and is required to contribute to the cost of care, and the recipient cannot reasonably be expected to be discharged from the nursing home or hospital and return home. The lien is for the amount of medical assistance paid on behalf of the recipient that is recoverable under sub. (3) (a).

49.496(2)(b) (b) The department may not obtain a lien under this subsection if any of the following persons lawfully reside in the home:

49.496(2)(b)1. 1. The recipient’s spouse.

49.496(2)(b)2. 2. The recipient’s child who is under age 21 or is disabled.

49.496(2)(b)3. 3. The recipient’s sibling who has an ownership interest in the home and who has lived in the home continuously beginning at least 12 months before the recipient was admitted to the nursing home or hospital.

49.496(2)(c) (c) Before obtaining a lien on a recipient’s home under this subsection, the department shall do all of the following:

49.496(2)(c)1. 1. Notify the recipient in writing of its determination that the recipient cannot reasonably be expected to be discharged from the nursing home or hospital, its intent to impose a lien on the recipient’s home and the recipient’s right to a hearing on whether the requirements for the imposition of a lien are satisfied.

49.496(2)(c)2. 2. Provide the recipient with a hearing if he or she requests one.

49.496(2)(d) (d) The department shall obtain a lien under this subsection by recording a lien claim in the office of the register of deeds of the county in which the home is located.

49.496(2)(e) (e) The department may not enforce a lien under this subsection while the recipient lives unless the recipient sells the home and does not have a living child who is under age 21 or disabled or a living spouse.

49.496(2)(f) (f) The department may not enforce a lien under this subsection after the death of the recipient as long as any of the following survive the recipient:

49.496(2)(f)1. 1. A spouse.

49.496(2)(f)2. 2. A child who is under age 21 or disabled.

49.496(2)(f)3. 3. A child of any age who resides in the home, if that child resided in the home for at least 24 months before the recipient was admitted to the nursing home or hospital and provided care to the recipient that delayed the recipient’s admission to the nursing home or hospital.

49.496(2)(f)4. 4. A sibling who resides in the home, if the sibling resided in the home for at least 12 months before the recipient was admitted to the nursing home or hospital.

49.496(2)(g) (g) The department may enforce a lien imposed under this subsection by foreclosure in the same manner as a mortgage on real property.

49.496(2)(h) (h) The department shall file a release of a lien imposed under this subsection if the recipient is discharged from the nursing home or hospital and returns to live in the home.

49.496(3) (3) Recovery from estates.