Chapter DHS 109

DHS 109.42(1) (1) No person may do any of the following:

DHS 109.42(1)(a) (a) Knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for any SeniorCare benefit or payment.

DHS 109.42(1)(b) (b) Knowingly and willfully make or cause to be made any false statement or representation of a material fact for use in determining rights to any SeniorCare benefit or payment.

DHS 109.42(1)(c) (c) Have knowledge of the occurrence of any event affecting the initial or continued right to any SeniorCare benefit or payment, or the initial or continued right to any such benefit, or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, or conceal or fail to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

DHS 109.42(1)(d) (d) Having made application to receive any SeniorCare benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such benefit or payment or any part thereof to a use other than for the use and benefit of such other person.

DHS 109.42(2) (2) Violators of this section shall be subject to penalties under s. 49.688 (9), Stats.

DHS 109.42 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

subch. V of ch. DHS 109 Subchapter V — Provider Rights and Responsibilities

DHS 109.51 DHS 109.51 Provider responsibility.

DHS 109.51(1) (1) Audit and program monitoring.

DHS 109.51(1)(a) (a) Providers shall comply with the audit and program monitoring conditions under s. DHS 105.01 (3) (f) 1. to 3.

DHS 109.51(1)(b) (b) Nothing in this subsection shall be construed to limit the right of a provider to appeal a department recovery action brought under s. DHS 109.53 (4).

DHS 109.51(2) (2) Confidentiality of medical information. Information about participants shall be confidential in accordance with ss. 146.81 to 146.83, Stats. No privilege exists under the SeniorCare program regarding communications or disclosures of information requested by appropriate federal or state agencies or an authorized agent of such agencies concerning the extent or kind of services provided participants under the program. The disclosure by a SeniorCare provider of these communications or medical records, made in good faith under the requirements of this program, shall not create any civil liability or provide any basis for criminal actions for unprofessional conduct.

DHS 109.51(3) (3) Provider responsibility. At the request of a person authorized by the department and on presentation of that person’s credentials, a SeniorCare provider shall permit access to any requested records, whether in written, electronic, or micrographic form. Access for purposes of this subsection shall include the opportunity to inspect, review, audit and reproduce the records.

DHS 109.51(4) (4) Record retention. Termination of a SeniorCare provider’s program participation does not end the SeniorCare provider’s responsibility to retain and provide access to records unless an alternative arrangement for retention, maintenance and access has been established by the SeniorCare provider and approved in writing by the department.

DHS 109.51(5) (5) Submission of claims. A SeniorCare provider shall submit all claims for prescription drugs purchased by a participant during spend-down and deductible periods.

DHS 109.51(6) (6) Third party liability. A SeniorCare provider shall seek reimbursement from any third party insurer legally liable to contribute in whole or in part to the cost of prescription drugs prior to billing the SeniorCare program.

DHS 109.51(7) (7) Refunds to participants. A SeniorCare provider shall fully refund participant payments for drugs subsequently covered by SeniorCare. If either the deductible or copayment retroactively applies, the provider shall fully refund the participant the excess amount that the participant paid. The excess is the difference between the actual amount the participant paid and the amount the participant is responsible for under SeniorCare.

DHS 109.51(8) (8) Limitations on copayments and deductibles.

DHS 109.51(8)(a) (a) As a condition of participation by a SeniorCare provider in the program under s. 49.45, 49.46, or 49.47, Stats., the SeniorCare provider may not charge an eligible participant who presents a valid prescription order and a SeniorCare identification an amount for a prescription drug under the order that exceeds the following:

DHS 109.51(8)(a)1. 1. For a deductible benefit, as specified in s. DHS 109.13 (3), the program payment rate.

DHS 109.51(8)(a)2. 2. For a prescription benefit, the copayment amount, as applicable, that is specified in s. DHS 109.13 (2) (b). No dispensing fee may be charged to a person under this paragraph.

DHS 109.51(8)(a)3. 3. For persons receiving spend-down services, as specified in s. DHS 109.13 (4), the retail price.

DHS 109.51(8)(b) (b) The department shall calculate and transmit amounts that may be used in calculating charges under par. (a) to SeniorCare providers.

DHS 109.51 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; correction in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; CR 22-046: am. (5) Register June 2023 No. 810, eff. 7-1-23.

DHS 109.52 DHS 109.52 Provider certification.

DHS 109.52(1) (1) General. This section identifies the terms and conditions under which SeniorCare providers of drugs are certified for participation in the program.

DHS 109.52(2) (2) Pharmacies.

DHS 109.52(2)(a) (a) For SeniorCare certification, pharmacies located in Wisconsin shall meet the requirements for registration and practice under ch. 450, Stats., and chs. Phar 1 to 17. Pharmacies certified to serve patients under the medical assistance program under ch. DHS 105 are required to serve SeniorCare participants.

DHS 109.52(2)(b) (b) Pharmacies located outside of Wisconsin are exempt from the requirement under par. (a), but shall be registered or licensed by the appropriate agency in the state in which they are located.

DHS 109.52(3) (3) General conditions for participation. In order to be certified by the department to dispense drugs under this program, a SeniorCare provider shall do all of the following:

DHS 109.52(3)(a) (a) Affirm in writing that the SeniorCare provider and each person employed by the SeniorCare provider for the purpose of providing the service holds all licenses or similar entitlements as specified in this chapter and as required by federal or state statute, regulation or rule for the provision of the service.

DHS 109.52(3)(b) (b) Affirm in writing that neither the SeniorCare provider, nor any person in whom the SeniorCare provider has a controlling interest, nor any person having a controlling interest in the SeniorCare provider, has been convicted of a crime related to, or been terminated from, a federally-assisted or state-assisted medical program.

DHS 109.52(3)(c) (c) Disclose in writing to the department all instances in which the SeniorCare provider, any person in whom the SeniorCare provider has a controlling interest, or any person having a controlling interest in the SeniorCare provider has been sanctioned by a federally-assisted or state-assisted medical program.

DHS 109.52(3)(d) (d) Furnish the following information to the department in writing:

DHS 109.52(3)(d)1. 1. The names and addresses of all vendors of drugs, medical supplies or transportation, or other providers in which the SeniorCare provider has a controlling interest or ownership.

DHS 109.52(3)(d)2. 2. The names and addresses of all persons who have a controlling interest in the SeniorCare provider.

DHS 109.52(3)(d)3. 3. Whether any of the persons named in compliance with subd. 1. or 2., is related to another named in subd. 1. or 2.

DHS 109.52(3)(e) (e) Execute a SeniorCare provider agreement with the department.

DHS 109.52(4) (4) Notification of certification decision. Within 60 days after the department receives a complete application for certification, including evidence of licensure or Medicare certification, or both, if required, the department shall either approve the application and issue the certification, or deny the application. If the application for certification is denied, the department shall give the applicant reasons, in writing, for the denial.

DHS 109.52(5) (5) Requirements for maintaining certification.

DHS 109.52(5)(a) (a) Compliance with requirements. A SeniorCare provider shall maintain compliance with the requirements in this subsection in order to maintain SeniorCare certification.

DHS 109.52(5)(b) (b) Change in provider status. A SeniorCare provider shall report to the department in writing any change in licensure, certification, group affiliation, corporate name or ownership by the time of the effective date of the change. The department may require the SeniorCare provider to complete a new provider application and a new provider agreement when a change in status occurs. A SeniorCare provider shall immediately notify the department of any change of address but the department shall not require the completion of a new provider application or a new provider agreement for a change of address.

DHS 109.52(5)(c) (c) Change in ownership. If the ownership of a certified SeniorCare provider changes, the provider agreement shall automatically terminate.

DHS 109.52(5)(d) (d) Program compliance. A SeniorCare provider may lose SeniorCare certification for any of the reasons listed in sub. (12) or in s. DHS 106.06.

DHS 109.52(6) (6) Response to inquiries. A SeniorCare provider shall respond as directed to inquiries by the department regarding the validity of provider information maintained by the department.

DHS 109.52(7) (7) Maintenance of records. A SeniorCare provider shall prepare and maintain whatever records are necessary to fully disclose the nature and extent of services provided by the SeniorCare provider under the program, including those enumerated in sub. (8). Each SeniorCare provider shall maintain all required records for at least a period of 5 years from the date the department pays for the services rendered, unless otherwise stated in this chapter. If a SeniorCare provider’s participation in the program terminates for any reason, all related records shall remain subject to the conditions enumerated in this subsection and sub. (8).

DHS 109.52(8) (8) Records to be maintained. SeniorCare providers shall retain all of the following records:

DHS 109.52(8)(a) (a) Contracts or agreements with persons or organizations for the furnishing of SeniorCare items or services, payment for which may be made in whole or in part, directly or indirectly, by the department.

DHS 109.52(8)(b) (b) Billings and records of services or supplies which are the subject of the billings that are necessary to fully disclose the nature and extent of the SeniorCare services or supplies.

DHS 109.52(8)(c) (c) All policies and regulations adopted by the SeniorCare provider’s governing body.

DHS 109.52(8)(d) (d) Prescriptions that support SeniorCare billings, including records of SeniorCare covered vaccines and vaccine administration.

DHS 109.52(8)(e) (e) SeniorCare patient profiles.

DHS 109.52(8)(f) (f) SeniorCare purchase invoices and receipts.

DHS 109.52(8)(g) (g) Receipts for costs associated with SeniorCare services billed.

DHS 109.52(9) (9) Provider agreement duration. The provider agreement shall, unless terminated, remain in full force and effect for a maximum of one year from the date the department accepts a SeniorCare provider into the program. In the absence of a notice of termination by the SeniorCare provider or department, the agreement shall automatically renew and extend for a period of one year.

DHS 109.52(10) (10) Participation by non–certified persons.

DHS 109.52(10)(a) (a) Reimbursement for emergency services. If a person in Wisconsin or in another state who is not certified as a SeniorCare provider by the department in this state provides emergency services to a Wisconsin participant, that person may not be reimbursed for those services unless the drugs are covered under this chapter and all of the following conditions are met:

DHS 109.52(10)(a)1. 1. The person submits to the department a provider data form and a claim for reimbursement of emergency services on forms prescribed by the department.

DHS 109.52(10)(a)2. 2. The person submits to the department a statement in writing on a form prescribed by the department explaining the nature of the emergency, if known, including a description of the participant’s condition, cause of emergency, diagnosis and extent of injuries, the drugs that were provided and when, and the reason that the participant could not receive drugs from a certified SeniorCare provider.

DHS 109.52(10)(a)3. 3. The person possesses all licenses and other entitlements required under state and federal statutes, rules and regulations, and is qualified to provide all services for which a claim is submitted.

DHS 109.52(10)(b) (b) Reimbursement prohibited for non-emergency services. The department may not reimburse non-emergency services provided by a non-certified person unless the department receives prior authorization as provided in s. DHS 109.32 (2).

DHS 109.52(10)(c) (c) Reimbursement determination. Based upon the signed statement and the claim for reimbursement, the department shall determine whether the services are reimbursable.

DHS 109.52(11) (11) Voluntary termination of program participation.

DHS 109.52(11)(a) (a) Voluntary termination. Any SeniorCare provider may terminate participation in the SeniorCare program and the medical assistance program. A SeniorCare provider electing to terminate program participation shall, at least 30 days before the termination date, notify the department in writing of that decision, the reasons for termination and the effective date of termination from the program.

DHS 109.52(11)(b) (b) Reimbursement. A SeniorCare provider may not claim reimbursement for prescription drugs provided to participants on or after the effective date specified in the termination notice. If the SeniorCare provider’s notice of termination fails to specify an effective date, the department shall terminate the SeniorCare provider’s certification to provide and claim reimbursement for services under the program on the date on which the department receives notice of termination.

DHS 109.52(12) (12) Involuntary termination or suspension from program participation. The provisions of s. DHS 106.06 apply to the SeniorCare program, with the exception of s. DHS 106.06 (3), (24) and (30).

DHS 109.52(13) (13) Effects of suspension or involuntary termination. The provisions of s. DHS 106.07 apply to the SeniorCare program.

DHS 109.52 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; corrections in (2) (a), (5) (d), (12) and (13) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636; correction in (2) (a) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667; CR 22-046: am. (8) (d), (11) (b) Register June 2023 No. 810, eff. 7-1-23.

DHS 109.53 DHS 109.53 Department recovery of overpayments from SeniorCare providers.

DHS 109.53(1) (1) Recoupment methods. If the department finds that a SeniorCare provider has received an overpayment, including but not limited to erroneous, excess, duplicative and improper payments under the program, regardless of cause, the department may recover the amount of the overpayment by any of the following methods, at its discretion:

DHS 109.53(1)(a) (a) Offsetting or making an appropriate adjustment against other amounts owed the SeniorCare provider for covered services.

DHS 109.53(1)(b) (b) Offsetting or crediting against amounts the department determines are owed the SeniorCare provider for subsequent services provided under the program if both of the following conditions are met:

DHS 109.53(1)(b)1. 1. The amount owed the SeniorCare provider at the time of the department’s finding is insufficient to recover in whole the amount of the overpayment.

DHS 109.53(1)(b)2. 2. The SeniorCare provider is claiming and receiving SeniorCare reimbursement in amounts sufficient to reasonably ensure full recovery of the overpayment within a reasonable period of time.

DHS 109.53(1)(c) (c) Requiring the SeniorCare provider to pay directly to the department the amount of the overpayment.

DHS 109.53(2) (2) Written notice. No recovery by offset, adjustment or demand for payment may be made by the department under sub. (1), except as provided under sub. (3), unless the department gives the SeniorCare 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, the method 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 SeniorCare provider has received amounts to which the SeniorCare provider is not entitled or in excess of that to which the SeniorCare provider is entitled, and inform the SeniorCare provider of a right to appeal the intended action under sub. (5). The SeniorCare provider shall make payment due the department within 30 days after the date of service of the notice of intent to recover. The department shall send final notices of intent to recover by certified mail.

DHS 109.53(3) (3) Exception. The department is not required to provide written notice under sub. (2) 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 SeniorCare provider requested or authorized the recovery to be made. In any of these cases, the department shall provide written notice of any payment adjustments made on the next remittance issued the SeniorCare provider. The notice shall specify the amount of the adjustment made and the claim that was the subject of the adjustment.

DHS 109.53(4) (4) Withholding of payment involving fraud or willful misrepresentation.

DHS 109.53(4)(a) (a) The department may withhold SeniorCare payments, in whole or in part, to a SeniorCare provider upon the department’s receipt of reliable evidence that the circumstances giving rise to the need for withholding payments involve fraud or willful misrepresentation under the SeniorCare program. Reliable evidence of fraud or willful misrepresentation includes a prosecuting attorney’s filing of criminal charges against the SeniorCare provider or one of its agents or employees. The department may withhold payments without first notifying the SeniorCare provider of its intention to withhold the payments.

DHS 109.53(4)(b) (b) The department shall send written notice to the SeniorCare provider of the department’s withholding of SeniorCare program payments within 5 calendar days after taking that action. The notice shall generally set forth the allegations leading to the withholding, but need not disclose any specific information concerning the ongoing investigation of allegations of fraud and willful misrepresentation. The notice shall provide all of the following information:

DHS 109.53(4)(b)1. 1. A statement that payments are being withheld in accordance with this paragraph.

DHS 109.53(4)(b)2. 2. A statement that the withholding action is for a temporary period, as defined under par. (c), and that cites the circumstances under which withholding will be terminated.

DHS 109.53(4)(b)3. 3. When appropriate, a statement specifying to which type of SeniorCare claims withholding is effective.

DHS 109.53(4)(b)4. 4. A statement informing the SeniorCare provider that the provider has a right to submit to the department written evidence regarding the allegations of fraud and willful misrepresentation for consideration by the department.

DHS 109.53(4)(c) (c) Withholding of the SeniorCare provider’s payments shall be temporary. Payment withholding may not continue after any of the following events occurs:

DHS 109.53(4)(c)1. 1. The department determines after a preliminary investigation there is not sufficient evidence of fraud or willful misrepresentation by the SeniorCare provider to require referral of the matter to an appropriate law enforcement agency and, to the extent of the department’s knowledge, the matter is not already the subject of an investigation or a prosecution by a law enforcement agency or a prosecuting authority.

DHS 109.53(4)(c)2. 2. Any law enforcement agency or prosecuting authority that has investigated or commenced prosecution of the matter determines there is insufficient evidence of fraud or misrepresentation by the SeniorCare provider to pursue criminal charges or civil forfeitures.

DHS 109.53(4)(c)3. 3. Legal proceedings relating to the SeniorCare provider’s alleged fraud or willful misrepresentation are completed and charges against the provider have been dismissed. In the case of a conviction of a SeniorCare provider for criminal or civil forfeiture offenses, those proceedings may 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 SeniorCare provider, the proceedings shall be regarded as complete at the time of dismissal or acquittal regardless of any opportunities for appeal the prosecuting authority may have.