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75 Op. Att'y Gen. 14, 22 (1986)

  (14)   Charges imposed forbidden, exceptions. No provider may impose upon a recipient charges in addition to payments received for services under this section or impose direct charges upon a recipient in lieu of obtaining payment under this section....
75 Op. Att'y Gen. 14, 22 (1986)

  ....
75 Op. Att'y Gen. 14, 22 (1986)

  (b)   If an applicant is determined to be eligible retroactively under s. 49.46(1)(b) and a provider bills the applicant directly for services and benefits rendered during the retroactive period, the provider shall, upon notification of the applicant's retroactive eligibility, submit claims for reimbursement under this section for covered services or benefits rendered during the retroactive period. Upon receipt of payment, the provider shall reimburse the applicant or other person who has made prior payment to the provider....
75 Op. Att'y Gen. 14, 22 (1986)

Section HSS 106.04(2)(b) of the Wisconsin Administrative Code, entitled "Payment on claims for reimbursement," has similar provisions.
75 Op. Att'y Gen. 14, 22-23 (1986)

  Wisconsin nursing homes must honor residents' rights guaranteed by section HSS 132.31 of the Wisconsin Administrative Code in order to participate in Medicaid. Ss. HSS 105.10(2)(k) and 105.115(11), Wis. Adm. Code. These standards must be enforced by the state as a condition of federal funding.
Resident v. Noot
, 305 N.W.2d 311 (Minn. 1981). The rights apply to all residents in a Medicaid certified nursing home, be they program recipients or private pay, simply as a condition for participation in the program. This enumeration of rights states that a resident can be involuntarily discharged or transferred essentially only for medical reasons, his or her welfare or that of other patients, or for non-payment. Ss. HSS 132.31(1)(j) and HSS 132.53(2)(b), Wis. Adm. Code. Conversion of status from private pay to Medicaid and the corresponding loss of revenue to the nursing home cannot be considered nonpayment. Sec. 49.45(14), Stats.; s. HSS 106.04, Wis. Adm. Code. Therefore, contract provisions prohibiting a person from applying for Medicaid, under the guise of requiring a certain length of stay as a private pay resident, cannot be enforced by threats of discharge.
75 Op. Att'y Gen. 14, 23 (1986)

  My conclusion is fortified by the fact that the Department of Health and Social Services has recently put all Wisconsin nursing home providers on notice that violations of private pay duration of stay agreements cannot be grounds for discharge.¯
4
The memo requires that all present and prospective residents be so notified. BQC-85-019 at 2-3.
75 Op. Att'y Gen. 14, 23 (1986)

  It should also be pointed out that providers who continue to utilize such contract provisions may be subject to injunctive sanctions. An open and continuous violation of state law may be deemed a public nuisance and prosecuted as such.
See
e.g.
,
State v. J.C. Penney
, 48 Wis. 2d 125, 151-55 (1970).
75 Op. Att'y Gen. 14, 23 (1986)

II.
75 Op. Att'y Gen. 14, 23 (1986)

  The second issue suggested by your question is whether the use of such contract provisions could subject a nursing home to termination from participation in Medicaid. I conclude that under certain conditions a provider could be excluded from the program for such conduct.
75 Op. Att'y Gen. 14, 23 (1986)

  Section 42 U.S.C. 1395cc, entitled "Agreements with providers of service," provides in part as follows:
75 Op. Att'y Gen. 14, 24 (1986)

  (a)(1)   Any provider of services... shall be qualified to participate under this subchapter... if it files with the Secretary an agreement --
75 Op. Att'y Gen. 14, 24 (1986)

  (A)   not to charge, except as provided in paragraph (2), any individual or any other person for items or services for which such individual is entitled to have payment made under this subchapter (or for which he would be so entitled if such provider of services had complied with the procedural and other requirements under or pursuant to the subchapter or for which such provider is paid pursuant to the provisions of sec. 1395f(e) of this title), and
75 Op. Att'y Gen. 14, 24 (1986)

  ....
75 Op. Att'y Gen. 14, 24 (1986)

  (b)   An agreement with the Secretary under the section may be terminated...
75 Op. Att'y Gen. 14, 24 (1986)

  ....
75 Op. Att'y Gen. 14, 24 (1986)

  (2)   by the Secretary... after the Secretary has determined (A) that such provider of services is not complying substantially with the provisions of such agreement, or with the provisions of this subchapter and regulations thereunder....
75 Op. Att'y Gen. 14, 24 (1986)

  Section HSS 106.06 of the Wisconsin Administrative Code, entitled "Involuntary termination, suspension or denial of eligibility for program participation," provides in part:
75 Op. Att'y Gen. 14, 24 (1986)

  The department may suspend or terminate the certification of any... provider... if... the department finds:
75 Op. Att'y Gen. 14, 24 (1986)

  ....
75 Op. Att'y Gen. 14, 24 (1986)

  (17)   The provider has in addition to claiming reimbursement for services provided a recipient, imposed a charge on the recipient for such services or has attempted to procure payment from the recipient in lieu of claiming reimbursement through the program contrary to provisions of HSS 106.04(2).
75 Op. Att'y Gen. 14, 24 (1986)

Therefore, it is my opinion that attempts to enforce such contract provisions when Medicaid eligibility is reached could lead to expulsion from the program.
75 Op. Att'y Gen. 14, 24 (1986)

III.
75 Op. Att'y Gen. 14, 24-25 (1986)

  The final question presented by your inquiry is whether the use of the disputed contract provisions constitutes a violation of criminal law. I conclude that in certain circumstances their continued use could subject the nursing home or its agents to criminal prosecution.
75 Op. Att'y Gen. 14, 25 (1986)

  There can be little doubt that the solicitation of such provisions in an admission agreement with a certified Medicaid recipient, or an attempt to enforce the agreement, constitutes a violation of the criminal statutes in question. The section you cite, 42 U.S.C. 1396h(d), obviously proscribes exactly this type of conduct. The corresponding state statute, section 49.49(4), was modeled after section 1396h(d) and is nearly identical:
75 Op. Att'y Gen. 14, 25 (1986)

  (4)   Prohibited charges. No person, in connection with the medical assistance program when the cost of the services provided to the patient is paid for in whole or in part by the state, may:
75 Op. Att'y Gen. 14, 25 (1986)

  (a)   Knowingly and wilfully charge, for any service provided to a patient under a medical assistance program, money or other consideration at a rate in excess of the rates established by the state.
75 Op. Att'y Gen. 14, 25 (1986)

  (b)   Knowingly and wilfully charge, solicit, accept or receive, in addition to any amount otherwise required to be paid under a medical assistance program, any gift, money, donation or other consideration, other than a charitable, religious or philanthropic contribution from an organization or from a person unrelated to the patient, as a precondition of admitting a patient to a hospital, skilled nursing facility, or intermediate care facility, or as a requirement for the patient's continued stay in such a facility.
75 Op. Att'y Gen. 14, 25 (1986)

  (c)   Violators of this subsection may be fined not more than $25,000 or imprisoned for not more than 5 years or both.
75 Op. Att'y Gen. 14, 25 (1986)

  Section 49.49(4) and 42 U.S.C. 1396h(d) (1977) have not been construed in any reported appellate decisions. However, their relevance here is obvious. Under section 1396h(d)(2), the instigator of the disputed contract provisions would be a person who "knowingly and wilfully... solicits... in addition to any amount otherwise required to be paid under a State plan... money... as a precondition of admitting a patient... when the cost of the services... is paid for (in whole or in part) under the State plan...." And, similarly, there would be culpability under section 49.49(4) for a person who "when the cost... is paid for in whole or in part by the state... knowingly and willfully... solicit[s]... money... as a precondition of admitting a patient...."
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