Chapter DHS 106

DHS 106.06(3)(a)3. 3. Detrimental to the health and safety of the recipient; or

DHS 106.06(3)(a)4. 4. Of grossly inferior quality.

DHS 106.06(3)(b) (b) Findings precipitating action by the department under this subsection shall be based on the written findings of a peer review committee established by the department or a PRO under contract to the department to review and evaluate health care services provided under the program. The findings shall be presumptive evidence that the provider has engaged in improper activities under this subsection.

DHS 106.06(4) (4) Suspension or revocation. The licensure, certification, authorization or other official entitlement required as a prerequisite to the provider’s certification to participate in the program has been suspended, restricted, terminated, expired or revoked;

DHS 106.06(4m) (4m) In the case of a freestanding personal care agency as defined in s. DHS 105.17 (1) (a), the freestanding personal care agency has violated one or more of the applicable requirements of ch. DHS 105 in a manner or to a degree that may endanger or threaten the health or safety of clients, has not paid the fee, or has failed to provide information requested by the department in connection with certification;

DHS 106.06(5) (5) Public health in jeopardy. A provider’s licensure, certification, authorization or other official entitlement has been suspended, terminated, expired or revoked under state or federal law following a determination that the health, safety or welfare of the public is in jeopardy;

DHS 106.06(6) (6) Medicare sanctions.

DHS 106.06(6)(a) (a) The provider is excluded or terminated from the medicare program or otherwise sanctioned by the medicare program because of fraud or abuse of the medicare program under 42 CFR 420.101 or 474.10.

DHS 106.06(6)(b) (b) The provider is suspended from the medicare program for conviction of a medicare program-related crime under 42 CFR 420.122.

DHS 106.06(6)(c) (c) The provider is a party convicted of a crime, ineligible to participate in the medicare program and the health care financing administration directs the department to suspend the provider;

DHS 106.06(7) (7) Service during period of noncertification. The provider has provided a service to a recipient during a period in which provider’s licensure, certification, authorization, or other entitlement to provide the service was terminated, suspended, expired or revoked;

DHS 106.06(8) (8) Criminal conviction. The provider has been convicted of a criminal offense related to providing or claiming reimbursement for services under medicare or under this or any other state’s MA program. In this subsection, “convicted” means that a judgment of conviction has been entered by a federal, state or local court, irrespective of whether an appeal from that judgment is pending;

DHS 106.06(9) (9) False statements. The provider knowingly made or caused to be made a false statement or misrepresentation of material fact in connection with provider’s application for certification or recertification;

DHS 106.06(10) (10) Failure to report status change. The provider has concealed, failed or refused to disclose any material change in licensure, certification, authorization, or ownership which, if known to the department, would have precluded the provider from being certified;

DHS 106.06(11) (11) Concealment of outside controlling interests. The provider at the time of application for certification under ch. DHS 105 or after receiving that certification knowingly misrepresented, concealed or failed to disclose to the department full and complete information as to the identity of each person holding an ownership or controlling interest in the provider;

DHS 106.06(12) (12) Concealment of provider’s controlling interests. The provider at the time of application for certification under ch. DHS 105 or after receiving that certification knowingly misrepresented, concealed or failed to disclose to the department an ownership or controlling interest the provider held in a corporation, partnership, sole proprietorship or other entity certified under the program;

DHS 106.06(13) (13) False statements concerning the nature and scope of services. The provider made or caused to be made false statements or misrepresentation of material facts in records required under s. DHS 105.02 (4), (6) or (7) and maintained by the provider for purposes of identifying the nature and scope of services provided under the program;

DHS 106.06(14) (14) False statements concerning the costs of services. The provider has knowingly made or caused to be made false statements or has misrepresented material facts in connection with the provider’s usual and customary charges submitted to the department as a claim for reimbursement;

DHS 106.06(15) (15) False statements concerning cost reports. The provider has knowingly made or caused to be made false statements or misrepresentation of material facts in cost reports relating to the provider’s costs, expenditures or usual and customary charges submitted to the department for the purpose of establishing reimbursement rates under the program;

DHS 106.06(16) (16) Failure to keep records. The provider has failed or refused to prepare, maintain or make available for inspection, audit or copy by persons authorized by the department, records necessary to fully disclose the nature, scope and need of services provided recipients;

DHS 106.06(17) (17) False statement on claim. The provider has knowingly made or caused to be made a false statement or misrepresentation of a material fact in a claim;

DHS 106.06(18) (18) Obstruction of investigation. The provider has intentionally by act of omission or commission obstructed an investigation or audit being conducted by authorized departmental personnel pursuant to s. 49.45 (3) (g), Stats.;

DHS 106.06(19) (19) Payment for referral. The provider has offered or paid to another person, or solicited or received from another person, any remuneration in cash or in kind in consideration for a referral of a recipient for the purpose of procuring the opportunity to provide covered services to the recipient, payment for which may be made in whole or in part under the program;

DHS 106.06(20) (20) Failure to request copayments. The provider has failed to request from recipients the required copayment, deductible or coinsurance amount applicable to the service provided to recipients after having received a written statement from the department noting the provider’s repeated failure to request required copayments, deductible or coinsurance amounts and indicating the intent to impose a sanction if the provider continues to fail to make these requests;

DHS 106.06 Note Note: See s. 49.45 (18), Stats., and s. DHS 106.04 (2) for requirements on copayments, deductibles and coinsurance amounts.

DHS 106.06(21) (21) Charging recipient. The provider has, in addition to claiming reimbursement for services provided a recipient, imposed a charge on the recipient for the services or has attempted to obtain payment from the recipient in lieu of claiming reimbursement through the program contrary to provisions of s. DHS 106.04 (3);

DHS 106.06(22) (22) Racial or ethnic discrimination. The provider has refused to provide or has denied services to recipients on the basis of the recipient’s race, color or national origin in violation of the Civil Rights Act of 1964, as amended, 42 USC 200d, et. Seq., and the implementing regulations. 45 CFR Part 80.

DHS 106.06(23) (23) Disability discrimination. The provider has refused to provide or has denied services to a recipient with a disability solely on the basis of disability, thereby violating section 504 of the Rehabilitation Act of 1973, as amended, 29 USC 794.

DHS 106.06(24) (24) Funds mismanagement. A provider providing skilled nursing or intermediate care services has failed to or has refused to establish and maintain an accounting system which ensures full and complete accounting of the personal funds of residents who are recipients, or has engaged in, caused, or condoned serious mismanagement or misappropriation of the funds;

DHS 106.06 Note Note: See s. DHS 107.09 (4) (i) for requirements concerning accounting for the personal funds of nursing home residents.

DHS 106.06(25) (25) Refusal to repay erroneous payments. The provider has failed to repay or has refused to repay amounts that have been determined to be owed the department either under s. DHS 106.04 (5) or pursuant to a judgment of a court of competent jurisdiction, as a result of erroneous or improper payments made to the provider under the program;

DHS 106.06(26) (26) Faulty submission of claims, failure to heed MA billing standards, or submission of inaccurate billing information. The provider has created substantial extraordinary processing costs by submitting MA claims for services that the provider knows, or should have known, are not reimbursable by MA, MA claims which fail to provide correct or complete information necessary for timely and accurate claims processing and payment in accordance with proper billing instructions published by the department or the fiscal agent, or MA claims which include procedure codes or procedure descriptions that are inconsistent with the nature, level or amount of health care provided to the recipient, and, in addition, the provider has failed to reimburse the department for extraordinary processing costs attributable to these practices;

DHS 106.06(28) (28) Other termination reasons. The provider, a person with management responsibility for the provider, an officer or person owning directly or indirectly 5% or more of the shares or other evidences of ownership of a corporate provider, a partner in a partnership which is a provider, or the owner of a sole proprietorship which is a provider, was:

DHS 106.06(28)(a) (a) Terminated from participation in the program within the preceding 5 years;

DHS 106.06(28)(b) (b) A person with management responsibility for a provider previously terminated under this section, or a person who was employed by a previously terminated provider at the time during which the act or acts occurred which served as the basis for the termination of the provider’s program anticipation and knowingly caused, concealed, performed or condoned those acts;

DHS 106.06(28)(c) (c) An officer of or person owning, either directly or indirectly, 5% of the stock or other evidences of ownership in a corporate provider previously terminated at the time during which the act or acts occurred which served as the basis for the termination;

DHS 106.06(28)(d) (d) An owner of a sole proprietorship or a partner in a partnership that was terminated as a provider under this section, and the person was the owner or a partner at the time during which the act or acts occurred which served as the basis for the termination;

DHS 106.06(28)(e) (e) Convicted of a criminal offense related to the provision of services or claiming of reimbursement for services under medicare or under this or any other state’s medical assistance program. In this subsection, “convicted” means that a judgment of conviction has been entered by a federal, state or local court, irrespective of whether an appeal from the judgment is pending;

DHS 106.06(28)(f) (f) Excluded, terminated, suspended or otherwise sanctioned by medicare or by this or any other state’s medical assistance program; or

DHS 106.06(28)(g) (g) Barred from participation in medicare by the federal department of health and human services, and the secretary of the federal department of health and human services has directed the department to exclude the individual or entity from participating in the MA program under the authority of section 1128 or 1128A of the social security act of 1935, as amended.

DHS 106.06(29) (29) Billing for services of a non-certified provider. The provider submitted claims for services provided by an individual whose MA certification had been terminated or suspended, and the submitting provider had knowledge of the individual’s termination or suspension; or

DHS 106.06(30) (30) Business transfer liability. The provider has failed to comply with the requirements of s. 49.45 (21), Stats., regarding liability for repayment of overpayments in cases of business transfer.

DHS 106.06 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; emerg. am. (28) (e) and (f), cr. (28) (g), eff. 2-19-88; am. (28) (e) and (f), cr. (28) (g), Register, August, 1988, No. 392, eff. 9-1-88; correction in (25) made under s. 13.93 (2m) (b) 7., Stats., Register February 2002 No. 554; corrections in (11), (12) and (13) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 09-107: cr. (4m) Register August 2010 No. 656, eff. 9-1-10; CR 20-039: r. (27) Register October 2021 No. 790, eff. 11-1-21; CR 20-068: am. (intro.), (22), (23) Register December 2021 No. 792, eff. 1-1-22.

DHS 106.065 DHS 106.065 Involuntary termination and alternative sanctions for home care providers.

DHS 106.065(1) (1) Termination.

DHS 106.065(1)(a) (a) The department may terminate a home care provider’s certification to participate in the MA program for failure to comply with the requirements of s. DHS 105.19, 107.11, 107.113 or 107.12, as applicable, or for any of the reasons described in s. DHS 106.06 after reasonable notice and opportunity for a hearing under s. DHS 106.12 (4).

DHS 106.065(1)(b) (b) The department shall provide at least 15 working days advance notice of termination to the provider, except at least 5 calendar days advance notice to providers is required in situations where the recipient’s health and safety is in immediate jeopardy.

DHS 106.065(1)(c) (c) Any provider terminated under this section shall have 30 calendar days from the date of termination of certification to make alternative care arrangements for MA recipients under the provider’s care before the effective date of termination. After the 30-day period, MA payment for services provided will cease, except for payments to providers terminated in immediate jeopardy situations. In immediate jeopardy situations, as determined by the department, the department may make alternative care arrangements to preserve continuity of care and for the protection of the recipient.

DHS 106.065(2) (2) Alternative sanctions.

DHS 106.065(2)(a) (a) In the event the department finds it more appropriate to take alternative action to termination of certification under sub. (1) to ensure compliance with program requirements, it may impose one or more sanctions under par. (b) for no more than 6 months following the last day of the department’s review of the provider. If, at the end of the 6 month period, the provider continues to not comply with the MA program requirement or requirements, the provider shall be terminated from MA program participation under sub. (1).

DHS 106.065(2)(b) (b) The department may apply one or several of the following sanctions:

DHS 106.065(2)(b)1. 1. Suspension of payment for new admissions;

DHS 106.065(2)(b)2. 2. Suspension of payments for new admissions who require particular types of services;

DHS 106.065(2)(b)3. 3. Suspension of payments for any MA recipient requiring a particular type of service;

DHS 106.065(2)(b)4. 4. A plan of correction prescribed by the department;

DHS 106.065(2)(b)5. 5. Provider monitoring by the department;

DHS 106.065(2)(b)6. 6. Appointment of a temporary manager; or

DHS 106.065(2)(b)7. 7. Any of the sanctions described in s. DHS 106.07 (4).

DHS 106.065(2)(c) (c) In determining the most effective sanctions to be applied to a non-compliant provider, the department shall consider:

DHS 106.065(2)(c)1. 1. The severity and scope of noncompliance;

DHS 106.065(2)(c)2. 2. The relationship of several areas of the deficiencies or noncompliance;

DHS 106.065(2)(c)3. 3. The provider’s previous compliance history, particularly as it relates to the insufficiencies under consideration;

DHS 106.065(2)(c)4. 4. Immediate or potential jeopardy to patient health and safety;

DHS 106.065(2)(c)5. 5. The direct relationship to patient care; and

DHS 106.065(2)(c)6. 6. The provider’s financial condition.

DHS 106.065(2)(d) (d) The department may revisit the provider during the sanction period. Termination procedures may be initiated as a result of the review conducted during the revisit if substantial noncompliance is found to persist, or if recipient safety is potentially or actually compromised.

DHS 106.065 History History: Cr. Register, February, 1993, No. 446, eff. 3-1-93; corrections in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 106.07 DHS 106.07 Effects of suspension or involuntary termination.

DHS 106.07(1) (1) Length of suspension or involuntary termination. In determining the period for which a party identified in this chapter is to be disqualified from participation in the program, the department shall consider the following factors:

DHS 106.07(1)(a) (a) The number and nature of the program violations and other related offenses;

DHS 106.07(1)(b) (b) The nature and extent of any adverse impact on recipients caused by the violations;

DHS 106.07(1)(c) (c) The amount of any damages;

DHS 106.07(1)(d) (d) Any mitigating circumstances; and

DHS 106.07(1)(e) (e) Any other pertinent facts which have direct bearing on the nature and seriousness of the program violations or related offenses.

DHS 106.07(2) (2) Federal exclusions. Notwithstanding any other provision in this chapter, a party who is excluded from participation in the MA program under s. DHS 106.06 (28) (e), (f) or (g) as the result of a directive from the secretary of the federal department of health and human services under the authority of section 1128 or 1128A of the social security act of 1935, as amended, shall be excluded from participation in the MA program for the period of time specified by the secretary of that federal agency.

DHS 106.07(3) (3) Referral to licensing agencies. The secretary shall notify the appropriate state licensing agency of the suspension or termination by MA of any provider licensed by the agency and of the act or acts which served as the basis for the provider’s suspension or termination.

DHS 106.07(4) (4) Other possible sanctions. In addition or as an alternative to the suspension or termination of a provider’s certification, the secretary may impose any or all of the following sanctions against a provider who has been found to have engaged in the conduct described in s. DHS 106.06:

DHS 106.07(4)(a) (a) Referral to the appropriate state regulatory agency;

DHS 106.07(4)(b) (b) Referral to the appropriate peer review mechanism;

DHS 106.07(4)(c) (c) Transfer to a provider agreement of limited duration not to exceed 12 months; or

DHS 106.07(4)(d) (d) Transfer to a provider agreement which stipulates specific conditions of participation.

DHS 106.07 History History: Cr. Register, December, 1979, No. 288. eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; emerg. r. and recr. (2), eff. 2-19-88; am. (2), Register, February, 1988, No. 386, eff. 3-1-88; r. and recr. (2), Register, August, 1988, No. 392, eff. 9-1-88.

DHS 106.08 DHS 106.08 Intermediate sanctions.

DHS 106.08(1) (1) To enforce compliance with MA program requirements, the department may impose on a provider for a violation listed under sub. (2) one or more of the sanctions under sub. (3) unless the requirements of s. DHS 106.065 apply. Any sanction imposed by the department pursuant to this section may be appealed by the provider under s. DHS 106.12. Prior to imposing any alternative sanction under this section the department shall issue a written notice to the provider in accordance with s. DHS 106.12 (3). Nothing in this chapter shall be construed to compel the department, through a fair hearing or otherwise, to impose an intermediate sanction in lieu of suspension or termination of certification, a different intermediate sanction, monetary recoveries, auditing, withholding of claims or pre-payment review, nor may imposition of an intermediate sanction on a provider be construed to limit the department’s authority under s. DHS 106.06, 106.065, 106.07, 106.10 or 106.11, under this section, or under the applicable provider agreement, concluded pursuant to s. 49.45 (2) (a) 9., Stats.

DHS 106.08(2) (2) The department may impose an intermediate sanction under sub. (3) for any of the following violations of this chapter:

DHS 106.08(2)(a) (a) For conduct specified in s. DHS 106.06;

DHS 106.08(2)(b) (b) For refusal to grant the department access to records under s. DHS 106.02 (9) (e);

DHS 106.08(2)(c) (c) For conduct resulting in repeated recoveries under s. DHS 108.02 (9);

DHS 106.08(2)(d) (d) For non-compliance with one or more certification requirement applicable to the type of provider under ch. DHS 105;