Chapter DHS 106

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;

DHS 106.08(2)(e) (e) For interference with recipient rights specified under ch. DHS 104; or

DHS 106.08(2)(f) (f) For refusal or repeated failure to comply with one or more requirement specified under this chapter.

DHS 106.08(3) (3) The department may impose one or more of the following intermediate sanctions for a violation listed under sub. (2):

DHS 106.08(3)(a) (a) Referral to the appropriate peer review organization, licensing authority or accreditation organization;

DHS 106.08(3)(b) (b) Transfer to a provider agreement of limited duration which also may stipulate specific conditions of participation;

DHS 106.08(3)(c) (c) Requiring prior authorization of some or all of the provider’s services;

DHS 106.08(3)(d) (d) Review of the provider’s claims before payment;

DHS 106.08(3)(e) (e) Restricting the provider’s participation in the MA program;

DHS 106.08(3)(f) (f) Requiring an independent audit of the provider’s practices and records, with the findings and recommendations to be provided to the department;

DHS 106.08(3)(g) (g) Requiring the provider to perform a self-audit following instructions provided by the department; and

DHS 106.08(3)(h) (h) Requiring the provider, in a manner and time specified by the department, to correct deficiencies identified in a department audit, independent audit or department survey or inspection.

DHS 106.08(4) (4) In determining the appropriate sanction or sanctions to be applied to a non-compliant provider and the duration of the sanction or sanctions, the department shall consider:

DHS 106.08(4)(a) (a) The seriousness and extent of the offense or offenses;

DHS 106.08(4)(b) (b) History of prior offenses;

DHS 106.08(4)(c) (c) Prior sanctions;

DHS 106.08(4)(d) (d) Provider willingness and ability to comply with MA program requirements;

DHS 106.08(4)(e) (e) Whether a lesser sanction will be sufficient to remedy the problem in a timely manner;

DHS 106.08(4)(f) (f) Actions taken or recommended by peer review organizations, licensing authorities and accreditation organizations;

DHS 106.08(4)(g) (g) Potential jeopardy to recipient health and safety and the relationship of the offense to patient care; and

DHS 106.08(4)(h) (h) Potential jeopardy to the rights of recipients under federal or state statutes or regulations.

DHS 106.08 History History: Cr. Register, February, 1993, No. 446, eff. 3-1-93; corrections in (2) (c), (d) and (e) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 106.09 DHS 106.09 Departmental discretion to pursue monetary recovery.

DHS 106.09(1) (1) Nothing in this chapter shall preclude the department from pursuing monetary recovery from a provider at the same time action is initiated to impose sanctions provided for under this chapter.

DHS 106.09(2) (2) The department may pursue monetary recovery from a provider of case management services or community support program services when an audit adjustment or disallowance has been attributed to the provider by the federal health care financing administration or the department. The provider shall be liable for the entire amount. However, no fiscal sanction under this subsection shall be taken against a provider unless it is based on a specific policy which was:

DHS 106.09(2)(a) (a) In effect during the time period being audited; and

DHS 106.09(2)(b) (b) Communicated to the provider in writing by the department or the federal health care financing administration prior to the time period audited.

DHS 106.09 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; r. and recr. Register, February, 1988, No. 386, eff. 3-1-88; emerg. am. (2) (intro.), eff. 1-1-90; am. (2) (intro.), Register, September, 1990, No. 417, eff. 10-1-90; renum. from HSS 106.075, Register, February, 1993, No. 446, eff. 3-1-93.

DHS 106.10 DHS 106.10 Withholding payment of claims.

DHS 106.10(1) (1) Suspension or termination from participation shall preclude a provider from submitting any claims for payment, either personally or through claims submitted by any clinic, group, corporation or other association for any health care provided under MA, except for health care provided prior to the suspension or termination.

DHS 106.10(2) (2) No clinic, group, corporation or other association which is a provider of services may submit any claim for payment for any health care provided by an individual provider within that organization who has been suspended or terminated from participation in MA, except for health care provided prior to the suspension or termination.

DHS 106.10(3) (3) The department may recover any payments made in violation of this subsection. Knowing submission of these claims shall be a grounds for administrative sanctions against the submitting provider.

DHS 106.10 History History: Cr. Register, December, 1979, No. 288. eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; r. (1), renum. (2) (a) to (c) to be (1) to (3), Register, February, 1988, No. 386, eff. 3-1-88; renum. from HSS 106.08, Register, February, 1993, No. 446, eff. 3-1-93.

DHS 106.11 DHS 106.11 Pre-payment review of claims.

DHS 106.11(1) (1) Health care review committees. The department shall establish committees of qualified health care professionals to evaluate and review the appropriateness, quality and quantity of services furnished recipients.

DHS 106.11(2) (2) Referral of aberrant practices. If the department has cause to suspect that a provider is prescribing or providing services which are not necessary for recipients, are in excess of the medical needs of recipients, or do not conform to applicable professional practice standards, the department shall, before issuing payment for the claims, refer the claims to the appropriate health care review committee established under sub. (1). The committee shall review and evaluate the medical necessity, appropriateness and propriety of the services for which payment is claimed. The decision to deny or issue the payment for the claims shall take into consideration the findings and recommendation of the committee.

DHS 106.11(3) (3) Withdrawal of review committee members for conflict of interest. No individual member of a health care review committee established under sub. (1) may participate in a review and evaluation contemplated in sub. (2) if the individual has been directly involved in the treatment of recipients who are the subject of the claims under review or if the individual is financially or contractually related to the provider under review or if the individual is employed by the provider under review.

DHS 106.11(4) (4) Provider notification of prepayment review. A provider shall be notified by the department of the institution of the pre-payment review process under sub. (2). Payment shall be issued or denied, following review by a health care review committee, within 60 days of the date on which the claims were submitted to the fiscal agent by the provider.

DHS 106.11(5) (5) Application of sanction. If a health care review committee established under sub. (1) finds that a provider has delivered services that are inappropriate or not medically necessary, the department may require the provider to request and receive from the department authorization prior to the delivery of any service under the program.

DHS 106.11 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86; renum. from HSS 106.09, Register, February, 1993, No. 446, eff. 3-1-93.

DHS 106.12 DHS 106.12 Procedure, pleadings and practice.

DHS 106.12(1) (1) Scope. The provisions of this section shall govern the following administrative actions by the department:

DHS 106.12(1)(a) (a) Decertification or suspension of a provider from the medical assistance program pursuant to s. 49.45 (2) (a) 12., Stats.;

DHS 106.12(1)(b) (b) Imposition of additional sanctions for non-compliance with the terms of provider agreements under s. 49.45 (2) (a) 9., Stats., or certification criteria established under s. 49.45 (2) (a) 11., Stats., pursuant to s. 49.45 (2) (a) 13., Stats.; and

DHS 106.12(1)(c) (c) Any action or inaction for which due process is otherwise required under s. 227.42, Stats.

DHS 106.12(1m) (1m) Application. The provisions of this section do not apply to either of the following:

DHS 106.12(1m)(a) (a) Hearings to contest recoveries by the department of overpayments to providers. Requests for hearings and hearings under these circumstances are governed exclusively by s. DHS 108.02 (9) (e); or

DHS 106.12(1m)(b) (b) Contests by providers of the propriety of the amount of payment received from the department, including contests of claim payment denials. The exclusive procedure for these contests is as provided in s. DHS 106.03 (3) (b) 5, except as may be provided under the terms of the applicable provider agreement, pursuant to s. 49.45 (2) (a) 9., Stats.

DHS 106.12(2) (2) Due process. The department shall assure due process in implementing any action described in sub. (1) by providing written notice, a fair hearing and written decision pursuant to s. 49.45 (2) (a) 14., Stats., or as otherwise required by law. In addition to any provisions of this section, the procedures implementing a fair hearing and a written decision shall comply with the provisions of ch. 227, Stats.

DHS 106.12(3) (3) Written notice. The department shall begin actions described under sub. (1) by serving upon the provider written notice of the intended action or written notice of the action. Notice of intended action described under sub. (1) (a) and (b) shall include the following:

DHS 106.12(3)(a) (a) A brief and plain statement specifying the nature of and identifying the statute, regulation or rule giving the department the authority to initiate the action;

DHS 106.12(3)(b) (b) A short and plain statement identifying the nature of the transactions, occurrences or events which served as the basis for initiating the action; and

DHS 106.12(3)(c) (c) A statement advising the provider of the right to a hearing and the procedure for requesting a hearing.

DHS 106.12(4) (4) Request for hearing. A provider desiring to contest a departmental action or inaction under sub. (1) may request a hearing on any matter contested. The request shall be in writing and shall:

DHS 106.12(4)(a) (a) Be served upon the department of administration’s division of hearings and appeals unless otherwise directed by the secretary;

DHS 106.12(4)(b) (b) For requests for hearings on actions or intended actions by the department, be served within 15 days of the date of service of the department’s notice of intended action or notice of action;

DHS 106.12(4)(c) (c) For requests for hearings on inactions by the department, be served within 60 days from the date the provider first became aware of, or should have become aware of with the exercise of reasonable diligence, the cause of the appeal;

DHS 106.12(4)(d) (d) Contain a brief and plain statement identifying every matter or issue contested; and

DHS 106.12(4)(e) (e) Contain a brief and plain statement of any new matter which the provider believes constitutes a defense or mitigating factor with respect to non-compliance alleged in the notice of action.

DHS 106.12 Note Note: Hearing requests should be sent to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707.

DHS 106.12(5) (5) Timing of actions taken against a provider.

DHS 106.12(5)(a) (a) Except as provided under par. (b), if no request for a hearing is timely filed, no action described in sub. (1) (a) and (b) may be taken by the department until 15 days after the notice of intended action has been served. Except as provided under par. (b), if a request for a hearing has been timely filed, no action described in sub. (1) (a) or (b) may be taken by the department until the hearing examiner issues a final decision.

DHS 106.12(5)(b) (b) Actions described under sub. (1) (a) and (b) may be taken against a provider 15 days after service of the notice of intended action and without a prior hearing when the action is initiated by the department under s. DHS 106.06 (4), (5), (6), (8) or (28). If the provider prevails at the hearing, the provider shall be reinstated retroactive to the date of de-certification or suspension.

DHS 106.12(6) (6) Final decision.