Wisconsin Legislature: DHS 10.56(1m)(a)

(j) Termination of the family care benefit.

(k) Determinations of protection of income and resources of a couple for maintenance of a community spouse under s. DHS 10.35 to the extent a hearing would be available under s. 49.455 (8) (a), Stats.

(L) Recovery of incorrectly paid family care benefit payments as provided under s. DHS 108.03 (3).

(m) Hardship waivers, as provided in s. DHS 108.02 (12) (e), and placement of liens as provided in ch. HA 3.

(n) Determination of temporary ineligibility for the family care benefit resulting from divestment of assets under s. DHS 10.32 (1) (i).

(1m) Exception to right to fair hearing. An enrollee does not have a right to a fair hearing under sub. (1g), if the sole issue is a federal or state law requiring an automatic change adversely affecting some or all enrollees and the enrollee does not dispute that they fall within the category of enrollees to be affected by the change.

(2) Grievances. An enrollee may contest any decision, omission or action of a CMO other than those specified under sub. (1g) by filing a grievance with the CMO under s. DHS 10.53 (2). If the enrollee is not satisfied with the CMO’s grievance decision, or if the CMO fails to issue a grievance decision within the timeframes specified under s. DHS 10.53 (2) (d), the enrollee may request a department review under s. DHS 10.54.

(3) Requesting a fair hearing. Receipt of notice is presumed within 5 days of the date the notice was mailed. A client shall file their request for a fair hearing in writing within the timeframes specified under subs. (1) and (1g) with the division of hearings and appeals in the department of administration. A hearing request shall be considered filed on the date of actual receipt by the division of hearings and appeals, or the date of the postmark, whichever is earlier. A request filed by facsimile is complete upon transmission. If the request is filed by facsimile transmission and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period. If a client asks the department, a county agency, a resource center or CMO for assistance in writing a fair hearing request, the department, resource center or CMO shall provide that assistance.

Note: A hearing request can be submitted by mail or hand-delivered to the Division of Hearings and Appeals, at 4822 Madison Yards Way, 5th Floor North, Madison, WI 53705-5400, faxed to the Division at (608) 264-9885, or emailed to the Division at DHAMail@wisconsin.gov. The Division’s telephone number is (608) 266-3096.

(4) Department review of fair hearing requests.

(a) When the division of hearings and appeals receives a request for a fair hearing under this chapter, it shall set the date for the hearing in accordance with ch. HA 3 and notify the department that it has received the request.

(b) When an enrollee has requested a fair hearing under sub. (3), the department shall conduct an informal review to identify, and, as appropriate, intervene in, fair hearing requests related to member health and safety, contract non-compliance and complex situations, if it appears to the department that informal resolution of the matter may be appropriate.

(5) Fair hearing procedures.

(a) The division of hearings and appeals shall conduct a fair hearing pursuant to this section in accordance with ch. HA 3, in response to each fair hearing requested unless, prior to the scheduled hearing date, any of the following occurs:

1. The client withdraws the request in writing.

2. The contested matter is resolved under sub. (4).

3. In the case of an enrollee appealing a CMO decision, the person voluntarily disenrolls from the CMO.

4. The petitioner has abandoned the hearing request. The division of hearings and appeals shall determine that abandonment has occurred when the petitioner, without good cause, fails to appear personally or by representative at the time and place set for the hearing. Abandonment may also be deemed to have occurred when the petitioner or the authorized representative fails to respond within a reasonable time to correspondence from the division regarding the hearing.

5. An informal resolution is proposed that is acceptable to the client, and the client agrees, in writing, to the resolution or withdraws the request for fair hearing.

6. An informal resolution acceptable to the client appears imminent to all parties, and the client requests rescheduling of the fair hearing. If the informal resolution that was anticipated is, in fact, not acceptable to the client, a new hearing date shall be set promptly.

(b) In accordance with ch. HA 3, the division of hearings and appeals:

1. Shall consider and apply all standards and requirements of this chapter.

2. Shall issue a decision within 90 days of the date of receipt of the request for fair hearing.

3. May dismiss the petition if the client does not appear at a scheduled hearing and does not contact the division of hearings and appeals with good cause for postponement.

(c) An applicant for or recipient of medical assistance is not entitled to a hearing concerning the identical dispute or matter under both this section and 42 CFR 431.200 to 431.246.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 04-040: am. (1) (a), (2), and (4) (b) Register November 2004 No. 587, eff. 12-1-04; corrections in (1) (i) and (j) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 09-003: am. (1), cr. (1m) Register November 2009 No. 647, eff. 12-1-09; CR 22-026: am. (1), renum. (1) (d) to (1g) (b), r. (1) (e), renum. (1) (f) to (1g) (i), renum. (1) (g) to (1g) (j) and am., renum. (1) (h) to (k) to (1g) (k) to (n), cr. (1g) (intro.) (a), (c), (d) to (h), am. (1m) to (3), (4) (title), (b), (5) (a) 3. Register May 2023 No. 809, eff. 6-1-23; correction in (1g) (title) made under s. 13.92 (4) (b) 2., Stats., Register May 2023 No. 809.

DHS 10.56 Continuation of services.

(1) Request for continuation of services pending outcome of cmo appeal. Prior to reducing, suspending or terminating services under the family care benefit, a CMO shall provide to the enrollee prior notification of its intent to reduce, suspend or terminate the services in accordance with s. DHS 10.52 (3). If an enrollee who has received a notice that services will be reduced, suspend or terminated files an appeal with the CMO under s. DHS 10.53 (2) before the effective date of the reduction, suspension or termination, the enrollee may request that the CMO continue to provide the services pending the outcome of the appeal.

(1m) Request for continuation of services pending outcome of dha fair hearing. An enrollee is entitled to continuation of services pending the outcome of a fair hearing if all of the following apply:

(a) The CMO’s decision on appeal under s. DHS 10.53 (2) is to proceed with reducing, suspending, or terminating the enrollee’s service.

(b) The enrollee’s services were continued pending the outcome of the CMO appeal decision.

(c) The enrollee requests a fair hearing on the CMO’s appeal decision before the effective date of the CMO’s appeal decision.

(d) The enrollee requests continuation of services before the effective date of the CMO’s appeal decision.

(2) Requirement for continuation. Except as provided in sub. (2m), a CMO may not reduce, suspend or terminate services under dispute pending the outcome of the enrollee’s appeal under s. DHS 10.53 (2) or fair hearing under s. DHS 10.55 if a request for continued benefits was made under sub. (1) or (1m).

(2m) Exemption from right to continuation. If the sole issue is a federal or state law requiring an automatic change adversely affecting some or all enrollees and the enrollee does not dispute that he or she falls within the category of enrollees to be affected by the change, the enrollee does not have the right to continuation of services pending the outcome of the enrollee’s appeal under s. DHS 10.53 (2) or fair hearing under s. DHS 10.55. A CMO will not receive a monthly capitated payment for such an individual and is not required to continue services in such circumstances.

(3) Liability for continuation of services. The enrollee shall be liable for the cost of services provided during the period in which services have been continued under this section if the outcome of the appeal or fair hearing is unfavorable to the enrollee. The CMO shall notify in writing an enrollee who requests continuation of services under this section of the potential for liability under this subsection and the time period during which the enrollee will be liable. If the department or its designee determines that the person would incur a significant and substantial financial hardship as a result of repaying the cost of the services provided, the department may waive or reduce the enrollee’s liability under this subsection.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 09-003: am. (2), cr. (2m) Register November 2009 No. 647, eff. 12-1-09; CR 22-026: am. (1), cr. (1m), am. (2) to (3) Register May 2023 No. 809, eff. 6-1-23.

DHS 10.57 Cooperation with advocates.

(1) Definitions. In this section:

(a) “Advocate” means an individual or organization whom a client has chosen to assist him or her in articulating the client’s preferences, needs and decisions.

(b) “Cooperate” means:

1. To provide any information related to the client’s eligibility, entitlement, cost sharing, care planning, care management, services or service providers to the extent that the information is pertinent to matters in which the client has requested the advocate’s assistance.

2. To assure that a client who requests assistance from an advocate is not subject to any form of retribution for doing so.

(2) Cooperation with advocates. The department and each resource center and CMO shall cooperate with any advocate selected by a client. Nothing in this section allows the unauthorized release of client information or abridges a client’s right to confidentiality.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00.

Subchapter VI — Recovery of Paid Benefits

DHS 10.61 Recovery of incorrectly paid benefits. County agencies, on behalf of the department, shall recover benefits incorrectly paid under the family care benefit, whether paid on behalf of individuals eligible for medical assistance or not, according to provisions of s. 49.497, Stats., s. DHS 108.03 (3) and policies established by the department or by the department of workforce development. The amount to be recovered is the amount actually paid by a CMO on behalf of a family care enrollee.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; correction made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 10.62 Recovery of correctly paid benefits.

(1) Recovery from the estate of an enrollee. The department shall file a claim against the estate of an enrollee to recover all medical assistance services provided to an individual 55 years or older while the individual was enrolled in family care. Recoveries from the estates of all family care enrollees shall be made in accordance with the provisions in ss. 49.496 (1), (3), (6m), and (7), and 49.849, Stats., and s. DHS 108.02 (11) and (12). The amount to be recovered under this section shall be equal to the amount of the total capitated payment made by the department to the CMO for the enrollee.

(a) The amount to be recovered under this section shall be the actual cost of services received by an enrollee through the family care benefit as reported to the department by the CMO in which the person was enrolled.

Note: Paragraph (a) was inadvertently left in by rule CR 23-046 and will be removed in future rulemaking.

(2) Liens on the homes of nursing home residents and inpatients at hospitals. The department may obtain a lien on an enrollee’s home if the enrollee resides in a hospital and is required to contribute to the cost of care, or if the enrollee resides in a nursing home, and the enrollee cannot reasonably be expected to be discharged from the hospital or nursing home and return home. The department shall obtain liens under this subsection in accordance with the provisions in s. 49.496 (1) and (2), Stats. The lien is for the amount that is recoverable under sub. (1) and for costs that are recoverable under ss. 49.496 and 49.849, Stats.

(3) Use of funds. The department shall deposit amounts recovered under this section to the appropriation under s. 20.435 (4) (im), Stats.

(4) Hearing rights. An enrollee’s exclusive administrative hearing rights are those specified in s. 49.496 (2), Stats., and ch. HA 3 for liens and in s. DHS 108.02 (12) for hardship waivers.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; corrections in (1) (intro.), (b) (intro.) and (4) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; correction in (1) (b) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register November 2009 No. 647; corrections in (1), (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2013 No. 696; corrections in (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register November 2015 No. 719; CR 22-026: am. (1) (b) Register May 2023 No. 809, eff. 6-1-23; CR 23-046: renum. (1) to (1) (intro.) and am., r. (1) (b), renum. (3) (intro.) to (3) and am., r. (3) (a), (b) Register April 2024 No. 820, eff. 5-1-24.

Subchapter VII — Assuring Timely Long-term Care Consultation

DHS 10.73 Information and referral requirements for long-term care facilities.

(1) Purpose. This section implements ss. 50.034 (5m) to (5n) and (8), 50.035 (4m) to (4n) and (11) and 50.04 (2g) to (2h), Stats., which establish requirements for adult family homes, residential care apartment complexes, community-based residential facilities and nursing homes to provide information to prospective residents and to refer certain prospective or newly admitted residents to a resource center and establish penalties for non-compliance.

(2) Applicability. Except as otherwise specified, this section applies to a long-term care facility only to the extent that the secretary has certified under s. DHS 10.71 that one or more resource centers are available for referrals from the facility for one or more specified target groups.

(3) Provision of information required. Subject to sub. (2), the long-term care facility shall give to each prospective resident, the resident’s guardian, or a representative designated by the resident written information about the services of a resource center, the family care benefit and the availability of screening to determine the prospective resident’s eligibility for the family care benefit. The facility shall provide the information at the time it first provides, in response to a request from the person or his or her representative, any written information about the facility, its services or potential admission, or at the time that it accepts an application for admission from the person, whichever is first. The written information shall be provided to the facility by the department or by the resource center that is the subject of the information.

(4) Required referral.

(a) Subject to sub. (2), a long-term care facility shall refer a person seeking admission to the facility to the resource center serving the county in which the person resides or intends to reside, if the person has a disability or condition expected to last at least 90 days and is at least 65 years or age or has a developmental or physical disability. The facility shall make the referral when it first provides an assessment of the person’s needs for nursing or residential services, or at the time that it accepts an application for admission from the person. The facility is not required to make the referral if any of the following applies:

1. The person is under the age of 17 years and 6 months.

2. A functional screen under s. DHS 10.33 has been completed for the person within the previous 6 months.

3. The person is seeking admission to the long-term care facility only for respite care.

4. The person is an enrollee of a care management organization.

5. The long-term care facility has been notified that the person was referred to the resource center by another entity within the previous 30 days.

(b) If the long-term care facility admits a person without referral because the person’s disability or condition is not expected to last at least 90 days, the facility shall later refer the person to the resource center if the person’s disability or condition is later expected to last at least 90 days. The facility shall refer the person within three business days of determining that the person’s disability or condition is likely to last longer than was expected at the time of admission.

(c) A person seeking admission or about to be admitted to a long-term care facility on a private pay basis who is referred to a resource center need not provide financial information to a resource center or county agency, unless the person is expected to be eligible for medical assistance within 6 months or unless the person wishes to apply for the family care benefit.

(5) Penalties for rcacs and cbrfs.

(a) Forfeiture. If the department finds that a residential care apartment complex or a community-based residential facility has not complied with the requirements of this section, it may directly impose a forfeiture of not more than $500 for each violation. If the department determines that a forfeiture should be assessed for a particular violation, the department shall send a notice of assessment to the facility. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated, and shall inform the facility of the right to a hearing under par. (b).

(b) Right to hearing. A residential care apartment complex or a community-based residential facility may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under par. (a), a written request for a hearing under s. 227.44, Stats., to the division of hearings and appeals in the department of administration. A hearing request shall be considered filed on the date of actual receipt by the division of hearings and appeals, or the date of the postmark, whichever is earlier. A request filed by facsimile is complete upon transmission. If the request is filed by facsimile transmission and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period. The hearing shall be scheduled and conducted in accordance with the requirements of ss. 50.034 (8) (c) and 50.035 (11) (c), Stats.

Note: A hearing request should be addressed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707. Hearing requests may be delivered in person to that office at 5005 University Avenue, Room 201, Madison, WI.

(c) Payment of forfeitures. All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under par. (b), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(6) Penalties for nursing homes. Failure to comply with the requirements of s. 50.04 (2g) and (2h), Stats., and this section is a class “C” violation under s. 50.04 (4) (b) 3., Stats.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 22-026: am. (1), (4) (a) 1. Register May 2023 No. 809, eff. 6-1-23.

DHS 10.74 Requirements for resource centers. The department shall establish, through its contracts with resource centers, minimum timeliness requirements for completion of resource center duties related to responding to referrals from long-term care facilities. Minimum timeliness requirements shall specify that the resource center initiate contact with the person who was referred or the person’s designated representative as soon as practical following receipt of a request or referral for the screen or for long-term care services. The resource center’s initial contact is for the purpose of informing the person about the family care benefit and the availability of functional and financial eligibility and cost-sharing screens and long-term care options consultation, and for setting an appointment to provide further consultation and to conduct the screen. The consultation provided by the resource center shall meet the requirements for long-term care options counseling under s. DHS 10.23 (2) (c) and shall be provided in conjunction with performance of the functional and financial eligibility and cost-sharing screens or at another mutually agreed upon time.

History: Cr. Register, October, 2000, No. 538, eff. 11-1-00; CR 23-046: am. Register April 2024 No. 820, eff. 5-1-24.