Chapter DHS 106

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.