Chapter DHS 109

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.

DHS 109.53(5) (5) Request for hearing on recovery action. If a SeniorCare provider chooses to contest the propriety of a proposed recovery under sub. (1), the SeniorCare 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 submitted in writing to the department of administration’s division of hearings and appeals and shall briefly identify the basis for contesting the proposed recovery. The date of service of a SeniorCare provider’s request for a hearing shall be the date on which the department of administration’s division of hearing and appeals receives the request. 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 SeniorCare 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.

DHS 109.53 Note Note: A hearing request should be mailed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707, 608–266–3096. Hearing requests may be delivered in person to that office at 5005 University Ave., Room 201, Madison, Wisconsin or transmitted by facsimile machine to 608-264-9885.

DHS 109.53 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

DHS 109.54 DHS 109.54 Incorporation of Medicaid standards. The following provisions applicable to the medical assistance program apply to SeniorCare providers for acts and activities pertaining to the SeniorCare program:

DHS 109.54(1) (1) General requirements for provision of services. The provisions of s. DHS 106.02 apply to the SeniorCare program.

DHS 109.54(2) (2) Manner of preparing and submitting claims for reimbursement. With the exception of s. DHS 106.03 (2) (d), (3) (c) 3. and (5) (br), the provisions of s. DHS 106.03 apply to the SeniorCare program.

DHS 109.54(3) (3) Payment of claims for reimbursement. With the exception of s. DHS 106.04 (2) and (3) (b) and (c), the provisions of s. DHS 106.04 apply to the SeniorCare program.

DHS 109.54(4) (4) Intermediate sanctions. The provisions of s. DHS 106.08 apply to the SeniorCare program.

DHS 109.54(5) (5) Departmental discretion to pursue monetary recovery. The provisions of s. DHS 106.09 (1) apply to the SeniorCare program.

DHS 109.54(6) (6) Withholding payment of claims. The provisions of s. DHS 106.10 apply to the SeniorCare program.

DHS 109.54(7) (7) Prepayment review of claims. The provisions of s. DHS 106.11 apply to the SeniorCare program.

DHS 109.54(8) (8) Procedure, pleadings and practice. The provisions of s. DHS 106.12 apply to the SeniorCare program.

DHS 109.54 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; corrections in (1) to (8) made under s. 13.92 (4) (b) 7., Stats., Register December 2008 No. 636.

subch. VI of ch. DHS 109 Subchapter VI — Participant Rights and Responsibilities

DHS 109.61 DHS 109.61 Participant duties.

DHS 109.61(1) (1) Not to seek duplication of services. A participant may not seek the same or similar covered drugs from more than one SeniorCare provider.

DHS 109.61(2) (2) Prior identification of eligibility. Except in emergencies that preclude prior identification, the participant shall, before receiving prescription drugs, inform the SeniorCare provider that the participant is receiving benefits under SeniorCare and shall present to the SeniorCare provider a current valid SeniorCare identification card.

DHS 109.61(3) (3) Review of benefits notice. Participants shall review the explanation of benefits (EOB) notice sent to them by the department and shall report to the department any payments made for drugs not actually provided.

DHS 109.61(4) (4) Informational cooperation with SeniorCare providers. Participants shall give SeniorCare providers full, correct and truthful information requested by SeniorCare providers and necessary for the submission of correct and complete claims for SeniorCare reimbursement, including information about all of the following:

DHS 109.61(4)(a) (a) The participant’s eligibility status, accurate name, address and SeniorCare identification number.

DHS 109.61(4)(b) (b) The participant’s use of the SeniorCare card.

DHS 109.61(4)(c) (c) The participant’s use of SeniorCare benefits.

DHS 109.61(4)(d) (d) The participant’s coverage under other insurance programs.

DHS 109.61(5) (5) Not to abuse or misuse the SeniorCare card or benefits. If a participant abuses or misuses the SeniorCare card or SeniorCare benefits in any manner, the department may terminate benefits or limit access to benefits under s. DHS 109.31 (4). For purposes of this subsection, “abuses or misuses” includes any of the following actions:

DHS 109.61(5)(a) (a) Altering or duplicating the SeniorCare card in any manner.

DHS 109.61(5)(b) (b) Permitting the use of the SeniorCare card by any unauthorized individual for the purpose of obtaining health care through SeniorCare.

DHS 109.61(5)(c) (c) Using a SeniorCare card that belongs to a person not authorized under that card.

DHS 109.61(5)(d) (d) Using the SeniorCare card to obtain any covered service for another individual.

DHS 109.61(5)(e) (e) Duplicating or altering prescriptions.

DHS 109.61(5)(f) (f) Knowingly misrepresenting material facts as to medical symptoms for the purpose of obtaining any covered service.

DHS 109.61(5)(g) (g) Knowingly furnishing incorrect eligibility status or other information to a SeniorCare provider.

DHS 109.61(5)(h) (h) Knowingly furnishing false information to a SeniorCare provider in connection with health care previously rendered to the participant and for which SeniorCare has been billed.

DHS 109.61(5)(i) (i) Knowingly obtaining health care in excess of established program limitations, or knowingly obtaining health care that is clearly not medically necessary.

DHS 109.61(5)(j) (j) Otherwise obtaining health care by false pretenses.

DHS 109.61 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; CR 22-046: am. (2) Register June 2023 No. 810, eff. 7-1-23.

DHS 109.62 DHS 109.62 Recovery of incorrect payments from participants.

DHS 109.62(1) (1) The department shall begin recovery action against any SeniorCare participant to whom or on whose behalf an incorrect payment was made resulting from any of the following:

DHS 109.62(1)(a) (a) A misstatement or omission of fact by the person supplying information on an application, a request for a new benefit period, or a review of eligibility for SeniorCare benefits.

DHS 109.62(1)(b) (b) A check submitted for the program enrollment fee is returned for non-sufficient funds under s. DHS 109.11 (6) (d).

DHS 109.62(1)(c) (c) A recipient fails to inform the department, within 10 calendar days of the change, of changes in circumstances that affect eligibility.

DHS 109.62(1)(d) (d) A recipient received benefits while an appeal requested under s. DHS 109.63 was pending and the contested decision is upheld.

DHS 109.62(2) (2) The amount of recovery may not exceed the amount of the SeniorCare benefits incorrectly provided.

DHS 109.62(3) (3) Department records of payment for the period of ineligibility shall be evidence of the amounts paid on behalf of the participant.

DHS 109.62(4) (4) The department shall notify the participant or the participant’s representative of the period of ineligibility and the amounts incorrectly paid, and shall request arrangement of repayment within a specified period of time.

DHS 109.62(5) (5) If the department does not recover incorrect payments under sub. (4), the department shall refer cases of possible recovery to the district attorney or corporation counsel for investigation and the district attorney or corporation counsel may bring whatever action may be appropriate for prosecution for fraud or collection under civil liability statutes. If not satisfied at the time the judgment or order for restitution is rendered, judgments obtained in these actions shall be filed as liens against property in any county in which the participant is known to possess assets. Execution may be taken on the judgments as otherwise provided in statute.

DHS 109.62(6) (6) The department may seek recovery through an order for restitution by the court of jurisdiction in which the participant or former participant is being prosecuted for fraud.

DHS 109.62 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

DHS 109.63 DHS 109.63 Participant appeals.

DHS 109.63(1) (1) Except as provided under sub. (2), any participant who is aggrieved by the department’s action or inaction may file an appeal pursuant to the requirements under ch. HA 3 that apply to the medical assistance program.

DHS 109.63(2) (2) 

DHS 109.63(2)(a) (a) A request for a hearing concerning the SeniorCare program may only be made in writing and only to the division of hearings and appeals.

DHS 109.63(2)(b) (b) The participant shall have 45 days from the effective date of the adverse action in which to file a request for hearing.

DHS 109.63(3) (3) If a recipient requests a hearing before the effective date of the action, SeniorCare benefits and services may not be suspended, reduced or discontinued until a decision is rendered after the hearing. However, SeniorCare benefit payments made pending the hearing decision may be recovered by the department if the contested decision or failure to act is upheld.

DHS 109.63 Note Note: A hearing request should be mailed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI, 53707-7875. Hearing requests may be delivered in person to that office at 5005 University Ave., Room 201, Madison, Wisconsin or transmitted by facsimile machine to 608-264-9885.

DHS 109.63 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

subch. VII of ch. DHS 109 Subchapter VII — Program Administration

DHS 109.71 DHS 109.71 Rebate agreement. The department shall provide to a drug manufacturer that sells drugs for prescribed use in this state documents designed for use by the manufacturer in entering into a rebate agreement with the department. The manufacturer shall make rebate payments for each prescription drug of the manufacturer that is prescribed for and purchased by persons under s. DHS 109.13 (2) (b) and (3) (b), to the state treasurer to be credited to the appropriation account under s. 20.435 (4) (j), Stats., each calendar quarter or according to a schedule established by the department.

DHS 109.71 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

DHS 109.72 DHS 109.72 Payment for drugs. The department shall provide to SeniorCare providers payments for prescription drugs sold by the SeniorCare providers to eligible persons under s. DHS 109.13 (2) (b). The payment for each prescription drug under this subsection shall be no more than the program payment rate, minus any copayment paid by the person under s. DHS 109.13 (2) (b).

DHS 109.72 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.

DHS 109.73 DHS 109.73 Program suspension. During any period in which funding under s. 20.435 (4) (bv), Stats., is completely expended for the payments to SeniorCare providers, the requirements of ss. DHS 109.71 and 109.72 do not apply to prescription drugs purchased during that period. However, the department shall continue to accept applications and determine eligibility under subchapter II and shall indicate to applicants that the eligibility of program participants to purchase prescription drugs as specified in this chapter, under the requirements of s. DHS 109.72, is conditioned on the availability of funding under s. 20.435 (4) (bv), Stats.

DHS 109.73 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03; CR 22-046: am. Register June 2023 No. 810, eff. 7-1-23.

DHS 109.74 DHS 109.74 Safeguarded information.

DHS 109.74(1) (1) Except for purposes directly related to direct program administration, the department may not use or disclose any information concerning past or present applicants and participants in SeniorCare.

DHS 109.74(2) (2) 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. (3).

DHS 109.74(3) (3) Persons or agency representatives outside the department to whom the department may disclose or permit use of safeguarded information shall meet all of the following qualifications:

DHS 109.74(3)(a) (a) The persons’ or agency representatives’ purpose for use or disclosure shall involve direct program administration.

DHS 109.74(3)(b) (b) The person or agency shall be bound by law or other legally enforceable obligation to observe confidentiality standards comparable to those observed by the department.

DHS 109.74 History History: CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03.