Chapter DHS 106

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.

DHS 106.12(6)(a) (a) If payment of claims to the provider is being withheld by the department under s. DHS 106.08 (1), a final decision shall be made by the department within 150 days of receipt of the hearing request.

DHS 106.12(6)(b) (b) The hearing examiner’s decision shall be the final decision of the department for contested actions under sub. (1) (a) and (b).

DHS 106.12(7) (7) Effect of failure to appear at hearing.

DHS 106.12(7)(a) (a) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b), the hearing examiner may enter an order dismissing the department’s action, pursuant to the motion of the provider or on its own motion.

DHS 106.12(7)(b) (b) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (c), the hearing examiner may enter an order granting the relief sought by the provider upon due proof of facts which show the provider’s entitlement to the relief.

DHS 106.12(7)(c) (c) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b), the hearing examiner may enter an order dismissing the provider’s appeal upon due proof of facts which show the department’s entitlement to the remedy or relief sought in the action.

DHS 106.12(7)(d) (d) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (c) the hearing examiner may enter an order dismissing the provider’s appeal, pursuant to the motion of the department or on its own motion.

DHS 106.12(7)(e) (e) The department of administration’s division of hearings and appeals may by order reopen a default arising from a failure of either party to appear on the date set for hearing. The order may be issued upon motion or petition duly made and good cause shown. The motion shall be made within 20 days after the date of the hearing examiner’s default order.

DHS 106.12(8) (8) Dates of service. The date of service of a written notice required under sub. (3) shall be the date on which the provider receives the notice. The notice shall be conclusively presumed to have been received within 5 days after evidence of mailing. The date of service of a request for hearing under sub. (4) shall be the date on which the division of hearings and appeals receives the request.

DHS 106.12 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; r. and recr. Register, February, 1986, No. 362, eff. 3-1-86; am. (1) (c) and (4) (b), r. and recr. (5) (a) and (b), r. (5) (c), cr. (8), Register, February, 1988, No. 386, eff. 3-1-88; renum. from HSS 106.10, r. (1m), Register, February, 1993, No. 446, eff. 3-1-93; correction in (1m) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

DHS 106.13 DHS 106.13 Discretionary waivers and variances. A provider or recipient may apply for and the department shall consider applications for a discretionary waiver or variance of any rule in chs. DHS 102 to 105, 107 and 108, excluding ss. DHS 107.02 (1) (b), (2) (e) to (j) and (3) (a) and (b) and (d) to (h), 107.03 (1) to (8) and (10) to (18), and 107.035. Waivers and variances shall not be available to permit coverage of services that are either expressly identified as non-covered in ch. DHS 107 or are not expressly mentioned in ch. DHS 107. The following requirements and procedures apply to applications under this section:

DHS 106.13(1) (1) Requirements for a discretionary waiver or variance. A discretionary wavier or variance may be granted only if the department finds all of the following are met:

DHS 106.13(1)(a) (a) The waiver or variance will not adversely affect the health, safety or welfare of any recipient;

DHS 106.13(1)(b) (b) Either:

DHS 106.13(1)(b)1. 1. Strict enforcement of a requirement would result in unreasonable hardship on the provider or on a recipient; or

DHS 106.13(1)(b)2. 2. An alternative to a rule, including a new concept, method, procedure or technique, new equipment, new personnel qualifications or the implementation of a pilot project is in the interests of better care or management;

DHS 106.13(1)(c) (c) The waiver or variance is consistent with all applicable state and federal statutes and federal regulations;

DHS 106.13(1)(d) (d) Consistent with the MA state plan and with the federal health care financing administration and other applicable federal program requirements, federal financial participation is available for all services under the waiver or variance; and

DHS 106.13(1)(e) (e) Services relating to the waiver or variance are medically necessary.

DHS 106.13(2) (2) Application for a discretionary waiver or variance.

DHS 106.13(2)(a) (a) A request for a waiver or variance may be made at any time. All applications for a discretionary waiver or variance shall be made in writing to the department, specifying the following:

DHS 106.13(2)(a)1. 1. The rule from which the waiver or variance is requested;

DHS 106.13(2)(a)2. 2. The time period for which the waiver or variance is requested;

DHS 106.13(2)(a)3. 3. If the request is for a variance, the specific alternative action which the provider proposes;

DHS 106.13(2)(a)4. 4. The reasons for the request; and

DHS 106.13(2)(a)5. 5. Justification that sub. (1) would be satisfied.

DHS 106.13 Note Note: Discretionary waiver or variance requests should be sent to the Division of Health Care Financing, P.O. Box 309, Madison, Wisconsin 53701.

DHS 106.13(2)(b) (b) The department may require additional information from the provider or the recipient prior to acting on the request.

DHS 106.13(2)(c) (c) The terms of a discretionary waiver or variance may be modified by the department at any time to ensure that the requirements of sub. (1) and the conditions or limitations established under this paragraph are met during the duration of the waiver or variance. The department may impose any conditions or limitations on the granting of a discretionary waiver or variance necessary to ensure that the requirements of sub. (1) are met during the duration of the waiver or variance or to ensure compliance with rules not waived or varied. The department may limit the duration of any discretionary waiver or variance.

DHS 106.13(2)(d) (d) The department may revoke a discretionary waiver or variance at any time if it determines that the terms, conditions or limitations established under par. (c) or any of the requirements under sub. (1) are not met, if it determines that there is evidence of fraud or MA program abuse by the provider or recipient, or if any of the facts upon which the waiver or variance was originally based is no longer true. The department may also revoke a waiver or variance at any time upon request of the applicant. The department shall mail a written notice at least 10 days prior to the effective date of the revocation or modification to the provider or recipient who originally requested the waiver or variance.

DHS 106.13(2)(e) (e) The denial, modification, limitation or revocation of a discretionary waiver or variance may be contested under s. DHS 106.12 or 104.01 (5) by the provider or recipient who requested the discretionary waiver or variance, provided that the sole issue in any fair hearing under this paragraph is whether the department acted in an arbitrary and capricious manner or otherwise abused its discretion in denying, modifying, limiting or revoking a discretionary waiver or variance.

DHS 106.13 History History: Cr. Register, February, 1993, No. 446, eff. 3-1-93; correction in (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.