Chapter DHS 104

Register December 2008 No. 636

Chapter DHS 104

RECIPIENT RIGHTS AND DUTIES

DHS 104.01   Recipient rights.

DHS 104.02   Recipient duties.

DHS 104.03   Primary provider.

DHS 104.035   Prudent buyer limitations.

DHS 104.05   Preferred enrollment.

Ch. DHS 104 Note Note: Chapter HSS 104 was renumbered Chapter HFS 104 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1997, No. 493. Chapter HFS 104 was renumbered to chapter DHS 104 under s. 13.92 (4) (b) 1., Stats., and corrections made under s. 13.92 (4) (b) 7, Stats., Register December 2008 No. 636.

DHS 104.01 DHS 104.01 Recipient rights.

DHS 104.01(1) (1) Civil rights. No applicant for or recipient of medical assistance (MA) may be excluded from participation in MA or denied benefits or otherwise be subjected to discrimination under MA for reasons which violate Title VI of the civil rights act of 1964, as amended, 42 USC 200d et seq., and the implementing regulations, 45 CFR Part 80.

DHS 104.01(2) (2) Rights of individuals with disabilities. No otherwise qualified individual with a disability may, solely by reason of disability, be excluded from the participation in MA, be denied benefits of MA or be subjected to discrimination under MA.

DHS 104.01 Note Note: See s. 504 of the rehabilitation act of 1973, as amended, 29 USC 794, and the implementing regulations, 45 CFR Part 84.

DHS 104.01(3) (3) Confidentiality of medical information. Information about recipients shall be confidential and only disclosable in accordance with 42 CFR pt. 2 and ss. 146.81 to 146.83, Stats. No privilege exists under MA regarding communications or disclosures of information requested by appropriate federal or state agencies or their authorized agents concerning the extent or kind of services provided recipients under the program. The disclosure by a provider of these communications or medical records, made in good faith under the requirements of this program, shall not create any civil liability or provide any basis for criminal actions for unprofessional conduct.

DHS 104.01(4) (4) Free choice of provider.

DHS 104.01(4)(a) (a) Selection of a provider. The department or agency shall maintain a current list of certified providers and shall assist eligible persons in securing appropriate care.

DHS 104.01(4)(b) (b) Limitations. A recipient may request service from any certified provider, subject to ss. DHS 104.02 (1), 104.03, and 104.05, except as provided in pars. (d), (f) and (g).

DHS 104.01(4)(c) (c) Right to fair hearing. A recipient who believes the recipient’s freedom of choice of provider has been denied or impaired unfairly may request a fair hearing within 45 days of the department’s action.

DHS 104.01(4)(d) (d) Nursing home admission. Free choice of a skilled nursing or intermediate care facility shall be limited so as to provide only care which is necessary to meet the medical and nursing needs of the recipient. A pre-admission screening assessment shall take place to determine appropriate service needs.

DHS 104.01(4)(e) (e) Non-covered services. A recipient’s participation in MA does not preclude the recipient’s right to seek and pay for services not covered by the program.

DHS 104.01(4)(f) (f) Case management services. Only recipients in the target populations designated by the department in s. DHS 107.32 (1) (a) 2 may choose case management services. Receipt of case management services does not restrict a recipient’s right to receive other MA services from any certified provider.

DHS 104.01(4)(g) (g) Presumptive eligibility determination. A recipient who requests a determination of presumptive eligibility to receive MA services shall file an application only with a qualified provider designated by the department and certified under s. DHS 103.11.

DHS 104.01(5) (5) Appeals.

DHS 104.01(5)(a) (a) Fair hearing.

DHS 104.01(5)(a)1. 1. Applicants and recipients have the right to a fair hearing in accordance with procedures set out in this subsection when aggrieved by action or inaction of the agency or the department. This subsection does not apply to actions taken by a PRO or to adverse benefit determinations made by a care management organization or managed care organization under s. 46.287 (2) (a) 1m. or 49.45 (5) (ag), Stats.

DHS 104.01(5)(a)2. 2. Every applicant or recipient shall be informed in writing at the time of application for MA and at the time of any action affecting the recipient’s claim of the right to a fair hearing, of the manner by which a fair hearing may be obtained and of the right to be represented or to represent self at such a fair hearing.

DHS 104.01(5)(a)3. 3. The applicant or recipient shall be provided reasonable time, not to exceed 45 days, in which to appeal an agency action. The department shall take prompt, definitive, and final administrative action within 90 days of the date of the request for a hearing.

DHS 104.01(5)(a)4. 4. No fair hearing is required when the sole issue being petitioned involves an automatic grant adjustment or change which affects an entire class of recipients and is the result of a change in state or federal law.

DHS 104.01(5)(b) (b) Purpose of hearing. The purpose of the fair hearing is to allow a recipient to appeal department actions which result in the denial, discontinuation, termination, suspension or reduction of the recipient’s MA benefits. The fair hearing process is not intended for recipients who wish to lodge complaints against providers concerning quality of services received, nor is it intended for recipients who wish to institute legal proceedings against providers. Recipients’ complaints about quality of care should be lodged with the appropriate channels established for this purpose, to include but not limited to provider peer review organizations, consumer advocacy organizations, regulatory agencies and the courts.

DHS 104.01(5)(c) (c) Concurrent review.

DHS 104.01(5)(c)1. 1. After the department has received a recipient’s request for a fair hearing and has set the date for the hearing, the department shall review and investigate the facts surrounding the recipient’s request for fair hearing in an attempt to resolve the problem informally.

DHS 104.01(5)(c)2. 2. If before the hearing date an informal resolution is proposed and is acceptable to the recipient, the recipient may withdraw the request for fair hearing.

DHS 104.01(5)(c)3. 3. If before the fair hearing date the concurrent review results in a proposed informal resolution not acceptable to the recipient, the fair hearing shall proceed as scheduled.

DHS 104.01(5)(c)4. 4. If the concurrent review has not resolved the recipient’s complaint satisfactorily by the fair hearing date but an informal resolution acceptable to the recipient appears imminent to all parties, the hearing may be dropped without prejudice and resumed at a later date. However, if the informal resolution proposed by the department is not acceptable to the recipient, the recipient may proceed with a fair hearing and a new hearing date shall be set promptly.

DHS 104.01(5)(c)5. 5. If before the fair hearing date the concurrent review has not been initiated, the fair hearing shall proceed as scheduled.

DHS 104.01(5)(d) (d) Absence of petitioner. If the recipient does not appear at a scheduled hearing and does not contact the department of administration’s division of hearings and appeals with good cause for postponement, the hearing examiner may dismiss the petition.

DHS 104.01(6) (6) Coverage while out-of-state. Medical assistance shall be furnished under any of the following circumstances to recipients who are Wisconsin residents but absent from the state provided that they are within the United States, Canada or Mexico:

DHS 104.01(6)(a) (a) When an emergency arises from accident or illness;

DHS 104.01(6)(b) (b) When the health of the recipient would be endangered if the care and services were postponed until the recipient returned to Wisconsin;

DHS 104.01(6)(c) (c) When the recipient’s health would be endangered if the recipient undertook travel to return to Wisconsin; or

DHS 104.01(6)(d) (d) When prior authorization has been granted for provision of a non-emergency service, except that prior authorization is not required for non-emergency services provided to Wisconsin recipients by border status providers certified by the Wisconsin MA program.

DHS 104.01(7) (7) Free choice of family planning method. Recipients eligible for family planning services and supplies shall have freedom of choice of family planning method so that a recipient may choose in accordance with the dictates of conscience and shall neither be coerced nor pressured into choosing any particular method of family planning.

DHS 104.01(8) (8) Continuation of benefits to community care organization clients. Recipients who were eligible for or receiving services from any of the local community care organization (CCO) projects in La Crosse county, Barron county, or Milwaukee county, in April 1976, shall be allowed to continue to receive any of the CCO services and these services shall be reimbursed under MA.

DHS 104.01(9) (9) Right to information concerning program policy.

DHS 104.01(9)(a) (a) Program manuals. Recipients may examine program manuals and policy issuances which affect the public, including rules and regulations governing eligibility, need and amount of assistance, recipients’ rights and responsibilities and services covered under MA, at the department’s state or regional offices, or an agency’s offices, during regular office hours.

DHS 104.01(9)(b) (b) Notice of intended action.

DHS 104.01(9)(b)1. 1. Except when changes in the law require automatic grant adjustments for classes of recipients, in every instance in which the department intends to discontinue, terminate, suspend or reduce a recipient’s eligibility for MA or coverage of services to a general class of recipients, the department shall send a written notice to the recipient’s last known address at least by the minimum time period required under 42 USC 601-613 and before the date upon which the action would become effective, informing the recipient of the following:

DHS 104.01(9)(b)1.a. a. The nature of the intended action;

DHS 104.01(9)(b)1.b. b. The reasons for the intended action;

DHS 104.01(9)(b)1.c. c. The specific regulations supporting the action;

DHS 104.01(9)(b)1.d. d. An explanation of the recipient’s right to request a fair hearing; and,

DHS 104.01(9)(b)1.e. e. The circumstances under which assistance will be continued if a hearing is requested.

DHS 104.01(9)(b)2. 2. The department shall mail the individual written notice to be received no later than the date of intended action under any of the following circumstances:

DHS 104.01(9)(b)2.a. a. The department receives a clear written statement signed by a recipient that states the recipient no longer wishes assistance, or that gives information which requires termination or reduction of assistance, and the recipient has indicated, in writing, that the recipient understands that the consequence of supplying the information will be termination or reduction of assistance;

DHS 104.01(9)(b)2.b. b. The department has factual information confirming the death of a recipient;

DHS 104.01(9)(b)2.c. c. The recipient has been admitted or committed to an institution and further payments to the recipient do not qualify for federal financial participation under the state plan for MA;

DHS 104.01(9)(b)2.d. d. The recipient has been placed in skilled nursing care, intermediate care or long-term hospitalization;