Chapter DHS 108

DHS 108.01(4)(e)4. 4. Course of treatment prescribed; and

DHS 108.01(4)(e)5. 5. Name of provider.

DHS 108.01(5) (5) For purposes of direct program administration, the department may permit disclosure to, or use of safeguarded information by, legally qualified persons or agency representatives outside the department. Governmental authorities, the courts, and law enforcement officers are persons outside the department who shall comply with sub. (6).

DHS 108.01(6) (6) Persons or agency representatives outside the department to whom the department may disclose or permit use of safeguarded information shall meet the following qualifications:

DHS 108.01(6)(a) (a) The purpose for use or disclosure shall involve direct program administration; and

DHS 108.01(6)(b) (b) The person or the person’s agency shall be bound by law or other legally enforceable obligation to observe confidentiality standards comparable to those observed by the department.

DHS 108.01(7) (7) Unless it is related to direct program administration, the department shall respond to a subpoena for a case record or for agency representative testimony regarding an applicant or recipient as follows:

DHS 108.01(7)(a) (a) The department shall provide the court and all parties to the proceeding with a copy of this section;

DHS 108.01(7)(b) (b) The department shall request that the attorney general intervene in the proceeding in a manner which will give effect to this section; and

DHS 108.01(7)(c) (c) The department shall notify in writing applicants or recipients affected by a subpoena for safeguarded information.

DHS 108.01(8) (8) The department shall publicize this section as follows:

DHS 108.01(8)(a) (a) Publication in the Wisconsin administrative code;

DHS 108.01(8)(b) (b) Incorporation by reference in certification procedures for all providers; and

DHS 108.01(8)(c) (c) Incorporation in information provided to recipients regarding their rights and responsibilities.

DHS 108.01(9) (9) The secretary or a designee shall determine the appropriate application of this section to circumstances not covered expressly by this section. Use or disclosure not expressly provided for in this section may not occur prior to this determination.

DHS 108.01 History History: Cr. Register, December, 1979, No. 288, eff. 2-1-80; am. Register, February, 1986, No. 362, eff. 3-1-86.

DHS 108.02 DHS 108.02 Department rights and responsibilities.

DHS 108.02(1) (1) Different benefits for different groups. The department may offer MA benefits to the categorically needy which are different from the benefits offered to the medically needy, subject to ss. 49.46 (2) (a) and 49.47 (6) (a), Stats. For the categorically needy, benefits shall meet federal minimum standards of coverage under 42 CFR 435.100-135. The department need not provide the same benefits that the categorically needy receive to individuals who are determined to be medically needy. The department is not required to provide the same amount, duration and scope of services to all the different groups who make up the medically needy population.

DHS 108.02(2) (2) Reimbursement methods and payment levels. The department may establish the reimbursement methods and payment levels for program services subject to the requirements of federal and state statutes, regulations and chs. DHS 101 to 107 and this chapter. Notice of specific changes or updates to payment levels shall be communicated to the service providers by the department through periodic publication of provider handbooks.

DHS 108.02(3) (3) Advisory committees. The department may appoint and make use of professional advisory committees on an ad hoc basis to provide expertise for development of service or reimbursement policies.

DHS 108.02(4) (4) Provider handbooks and bulletins. The department shall publish provider handbooks, bulletins and periodic updates to inform providers of changes in state or federal law, policy, reimbursement rates and formulas, departmental interpretation, and procedural directives such as billing and prior authorization procedures, specific reimbursement changes and items of general information. The department shall inform providers in a handbook, bulletin or other publication of specific services requiring collection of benefits from medicare or other health care plans under s. DHS 106.03 (7) before benefits are claimed from the MA program. Information regarding eligibility for medicare or for another health care plan as identified on the recipient’s MA identification card shall also be included in these publications.

DHS 108.02(5) (5) Notification of recipients. The department shall publish periodic notification to eligible recipients, as necessary, to provide general information regarding MA program benefits and procedural requirements, and to notify recipients of any benefit or eligibility changes.

DHS 108.02(6) (6) Notice of change in method or level of reimbursement.

DHS 108.02(6)(a) (a) Except as provided in par. (b), the department shall publish a public notice in the Wisconsin administrative register of any significant proposed change in the statewide method or level of reimbursement for a service, in compliance with 42 CFR 447.205. This notice shall include information on the procedure for obtaining details of the proposed change, why the change is proposed and how to provide public comment to the department.

DHS 108.02(6)(b) (b) Changes for which no public notice is required include the following:

DHS 108.02(6)(b)1. 1. Changes to conform with medicare methods and federally-invoked upper limits on reimbursement;

DHS 108.02(6)(b)2. 2. Changes required of the department by court order; and

DHS 108.02(6)(b)3. 3. Changes in wholesalers’ or manufacturers’ prices of drugs or materials, if the department’s method of reimbursement is based on direct or wholesale prices as reported in a national standard such as the American druggist blue book, plus a pharmacy dispensing fee.

DHS 108.02(6)(c) (c) Notice in the Wisconsin administrative register shall constitute official notice by the department to its contracted health service providers of a contractual change.

DHS 108.02(7) (7) Mailings and distributions. The department shall mail or distribute materials to applicants, recipients or medical providers, as follows:

DHS 108.02(7)(a) (a) All materials shall be limited to purposes directly related to program administration.

DHS 108.02(7)(b) (b) Materials which may not be mailed or distributed include:

DHS 108.02(7)(b)1. 1. “Holiday” greetings;

DHS 108.02(7)(b)2. 2. General public announcements;

DHS 108.02(7)(b)3. 3. Voting information;

DHS 108.02(7)(b)4. 4. Alien registration notices;

DHS 108.02(7)(b)5. 5. Names of individuals, unless:

DHS 108.02(7)(b)5.a. a. The named individual is connected with direct program administration; or

DHS 108.02(7)(b)5.b. b. The named individual is identified only in an official agency capacity; and

DHS 108.02(7)(b)6. 6. Any material with political implications.

DHS 108.02(7)(c) (c) Materials which may be mailed or distributed include:

DHS 108.02(7)(c)1. 1. Information of immediate interest to applicants’ or recipients’ health and welfare;

DHS 108.02(7)(c)2. 2. Information regarding the deletion or reduction of covered services; and

DHS 108.02(7)(c)3. 3. Consumer protection information.

DHS 108.02(8) (8) Third party liability for cost of services.

DHS 108.02(8)(a) (a) The department shall make reasonable efforts to identify any third party insurer, including medicare, legally liable to contribute in whole or in part to the cost of services provided to a recipient under the MA program.

DHS 108.02(8)(b) (b) When the department has determined that medicare or any other health care plan provides health care coverage to the recipient which is primary to MA, as stated in s. 632.755 (2), Stats., the medicare or other insurance coverage shall be identified on the recipient’s MA identification card by specific codes.

DHS 108.02(8)(c) (c) In the event payment for services otherwise covered by medicare or by another health care plan is unavailable, the provider may bill the department’s MA fiscal agent, identifying the efforts to seek reimbursement from medicare or the other health care plan, on condition that the provider complies with the instructions issued by the department under sub. (4).

DHS 108.02(9) (9) Departmental recoupment of overpayments.

DHS 108.02(9)(a) (a) Recoupment methods. If the department finds that a provider has received an overpayment, including but not limited to erroneous, excess, duplicative and improper payments regardless of cause, under the program, the department may recover the amount of the overpayment by any of the following methods, at its discretion:

DHS 108.02(9)(a)1. 1. Offsetting or making an appropriate adjustment against other amounts owed the provider for covered services;

DHS 108.02(9)(a)2. 2. Offsetting or crediting against amounts determined to be owed the provider for subsequent services provided under the program if:

DHS 108.02(9)(a)2.a. a. The amount owed the provider at the time of the department’s finding is insufficient to recover in whole the amount of the overpayment; and

DHS 108.02(9)(a)2.b. b. The provider is claiming and receiving MA reimbursement in amounts sufficient to reasonably ensure full recovery of the overpayment within a reasonable period of time; or

DHS 108.02(9)(a)3. 3. Requiring the provider to pay directly to the department the amount of the overpayment.

DHS 108.02(9)(b) (b) Written notice. No recovery by offset, adjustment or demand for payment may be made by the department under par. (a), except as provided under par. (c), unless the department gives the provider prior written notice of the department’s intention to recover the amount determined to have been overpaid. The notice shall set forth the amount of the intended recovery, identify the claim or claims in question or other basis for recovery, summarize the basis for the department’s finding that the provider has received amounts to which the provider is not entitled or in excess of that to which the provider is entitled, and inform the provider of a right to appeal the intended action under par. (e). Payment due the department shall be made by the provider within 30 days after the date of service of the notice of intent to recover. Final notices of intent to recover shall be sent by certified mail.

DHS 108.02(9)(c) (c) Exception. The department need not provide prior written notice under par. (b) when the overpayment was made as a result of a computer processing or clerical error, for a recoupment of a manual partial payment, or when the provider requested or authorized the recovery to be made. In any of these cases the department or its fiscal agent shall provide written notice of any payment adjustments made on the next remittance issued the provider. This notice shall specify the amount of the adjustment made and the claim or claims which were the subject of the adjustments.

DHS 108.02(9)(d) (d) Suspension of payment involving fraud.

DHS 108.02(9)(d)1. 1. The department may suspend MA payments to a provider after the department determines there is a credible allegation of fraud for which an investigation is pending under the MA program against an individual or entity unless the department has good cause, as provided in subd. 6., to not suspend payments or to suspend payment only in part. A credible allegation of fraud is an allegation which has been verified by the department, from any source. Allegations are credible when they have indicia of reliability and the department has reviewed all allegations, facts, and evidence carefully. The department shall act judiciously on a case-by-case basis and will make referrals as appropriate. The department may withhold payments without first notifying the provider of its intention to withhold the payments. A provider is entitled to a hearing under s. DHS 106.12.

DHS 108.02(9)(d)2. 2. The department shall send written notice to the provider of the department’s suspension of MA program payments within 5 days after taking that action unless requested in writing by a law enforcement agency to temporarily withhold such notice. Law enforcement requests may last up to 30 days and may be renewed in writing up to twice and in no event may exceed 90 days. The notice shall state all of the following:

DHS 108.02(9)(d)2.a. a. That payments are being withheld in accordance with this paragraph and 42 CFR 455.23.

DHS 108.02(9)(d)2.b. b. That the withholding action is for a temporary period, as defined under subd. 3., and cite the circumstances under which the suspension of payments will be terminated.

DHS 108.02(9)(d)2.c. c. When appropriate, which type of MA claims or business units of a provider for which suspension is effective.

DHS 108.02(9)(d)2.d. d. That the provider has a right to submit to the department written evidence regarding the allegations of fraud for consideration by the department. The provider shall be informed of this right.

DHS 108.02(9)(d)3. 3. Suspension of the provider’s payments shall be temporary. Suspension of payment may not continue after any of the following circumstances occurs:

DHS 108.02(9)(d)3.a. a. The department or prosecuting authorities determine there is not sufficient evidence of fraud.

DHS 108.02(9)(d)3.c. c. Legal proceedings relating to the provider’s alleged fraud are completed and charges against the provider have been dismissed. In the case of a conviction of a provider for criminal or civil forfeiture offenses, those proceedings shall not be regarded as being completed until all appeals are exhausted. In the case of an acquittal in or dismissal of criminal or civil forfeiture proceedings against a provider, the proceedings shall be regarded as complete at the time of dismissal or acquittal regardless of any opportunities for appeal which the prosecuting authority may have.

DHS 108.02(9)(d)4. 4. The department shall document in writing the termination of a suspension.

DHS 108.02(9)(d)5. 5. Whenever a department investigation leads to the initiation of a payment suspension in whole or part, the department shall make a fraud referral to the department of justice medicaid fraud control and elder abuse unit. The fraud referral shall be made in writing, conform to fraud referral performance standards, and be provided to the department of justice medicaid fraud control and elder abuse unit no later than the next business day after the suspension is enacted. If the department of justice medicaid fraud control and elder abuse unit accepts the fraud referral for investigation, the payment suspension may be continued until the investigation and any associated enforcement proceedings are completed. On a quarterly basis the department shall request certification from the department of justice medicaid fraud control and elder abuse unit that any matter accepted on the basis of a referral continues to be under investigation. If the department of justice medicaid fraud control and elder abuse unit declines to accept the fraud referral for investigation, the payment suspension shall be discontinued.

DHS 108.02(9)(d)6. 6. The department may find that good cause exists not to suspend payments or to not continue a previously imposed payment suspension if any of the following are applicable:

DHS 108.02(9)(d)6.a. a. Law enforcement officials have requested that a payment suspension not be imposed because such a payment suspension may compromise or jeopardize an investigation.

DHS 108.02(9)(d)6.b. b. Other available remedies implemented by the department more effectively or quickly protect MA funds.

DHS 108.02(9)(d)6.c. c. The department determines, based upon the submission of written evidence by the provider, that the suspension should be removed.

DHS 108.02(9)(d)6.d. d. Beneficiary access to items or services would be jeopardized by a payment suspension if the provider is the sole community physician or the sole source of essential specialized services in a community or the provider serves a large number of beneficiaries within a health resources and services administration-designated medically underserved area.

DHS 108.02(9)(d)6.e. e. Law enforcement declines to certify that a matter continues to be under investigation.

DHS 108.02(9)(d)6.f. f. The department determines that payment suspension is not in the best interests of the MA program.

DHS 108.02(9)(d)7. 7. The department may find that good cause exists to suspend payments in part, or to convert a previously imposed payment suspension in whole to one only in part, to a provider against which there is an investigation of a credible allegation of fraud if any of the following are applicable:

DHS 108.02(9)(d)7.a. a. Beneficiary access to items or services would be jeopardized by a payment suspension in whole or part because provider is the sole community physician or the sole source of essential specialized services in a community, or the provider serves a large number of beneficiaries within a health resources and services administration-designated medically underserved area.

DHS 108.02(9)(d)7.b. b. The department determines, based upon the submission of written evidence by the provider, that the suspension should be imposed only in part.

DHS 108.02(9)(d)7.c. c. The credible allegation focuses solely and definitively on only a specific type of claim or arises from only a specific business unit of the provider and the department determines and documents in writing that a payment suspension in part would effectively ensure that potentially fraudulent claims were not continuing to be paid.

DHS 108.02(9)(d)7.d. d. Law enforcement declines to certify that a matter continues to be under investigation.

DHS 108.02(9)(d)7.e. e. The department determines that payment suspension is not in the best interests of the MA program.

DHS 108.02(9)(d)8. 8. The department shall do all of the following relative to documentation and record retention:

DHS 108.02(9)(d)8.a. a. Maintain for a minimum of 5 years from the date of issuance all materials documenting the life cycle of a payment suspension that was imposed in whole or part, including all notices of suspension of payment in whole or part, all fraud referrals to the department of justice medicaid fraud control and elder abuse unit, all quarterly certifications of continuing investigation status by law enforcement, and all notices documenting the termination of a suspension.

DHS 108.02(9)(d)8.b. b. Maintain for a minimum of 5 years from the date of issuance all materials documenting each instance where a payment was not imposed, imposed only in part, or discontinued for good cause. This type of documentation shall include, at a minimum, detailed information on the basis for the existence of the good cause not to suspend payments, to suspend payments only in part, or to discontinue a payment suspension and, where applicable, must specify how long the department anticipates such a good cause will exist.

DHS 108.02(9)(d)8.c. c. Annually report to the Secretary of the U.S. Health and Human Services.

DHS 108.02(9)(e) (e) Request for hearing on recovery action. If a provider chooses to contest the propriety of a proposed recovery under par. (a), the provider shall, within 20 days after receipt of the department’s notice of intent to recover, request a hearing on the matter. The request shall be in writing and shall briefly identify the basis for contesting the proposed recovery. Receipt of a timely request for hearing shall prevent the department from making the proposed recovery while the hearing proceeding is pending. If a timely request for hearing is not received, the department may recover from current or future obligations of the program to the provider the amount specified in the notice of intent to recover and may take such other legal action as it deems appropriate to collect the amount specified. All hearings on recovery actions by the department shall be held in accordance with the provisions of ch. 227, Stats. The date of service of a provider’s request for a hearing shall be the date on which the department of administration division of hearings and appeals receives the request.

DHS 108.02(10) (10) Estate recovery. The department shall file a claim against the estate of a recipient or client or against the estate of the surviving spouse of a recipient or client as provided in ss. 49.496 and 49.849, Stats., and s. 46.27 (7g), 2017 Stats., to recover only the following:

DHS 108.02(10)(a) (a) The amount of medical assistance paid on or after October 1, 1991, on behalf of the recipient while the recipient resided in a nursing home.