AB806: Bill Text

LRB-4879/1

DAK:kg:pg

2001 - 2002 LEGISLATURE

2001 Assembly BILL 806

February 12, 2002 - Introduced by Representatives Johnsrud, Musser, Huber, J. Lehman, Sykora, Urban, Starzyk, Hines and Albers, cosponsored by Senators M. Meyer, Wirch, Schultz and Roessler. Referred to Committee on Health.

AB806,1,11 An Act to repeal 20.435 (4) (iL), 49.45 (2) (a) 10. b., 49.45 (2) (a) 10. c., 49.45 (2) (a) 11. b., 49.45 (2) (a) 12. b., 49.45 (2) (b) 6m., 49.45 (2) (b) 7., 49.45 (2) (b) 8., 49.45 (2) (b) 9., 49.45 (3) (g) 2., 49.45 (3) (h) 1n., 49.45 (21) (ag) and 49.45 (21) (e); to renumber and amend 49.45 (2) (a) 10. a., 49.45 (2) (a) 11. a., 49.45 (2) (a) 12. a., 49.45 (3) (g) 1., 49.45 (3) (h) 1m. and 49.45 (21) (ar); to amend 49.45 (2) (a) 9., 49.45 (2) (a) 14., 49.45 (21) (title), 49.45 (21) (b), 49.85 (2) (a), 49.85 (3) (a) 1., 71.93 (1) (a) 3. and 227.43 (1) (bg); to create 49.45 (3) (h) 1. and 49.45 (3) (h) 2. of the statutes; and to affect 2001 Wisconsin Act 16, section 9323 (18k), (18m), (18n), (18pk), (18pm) and (18pn) and 2001 Wisconsin Act 16, section 9423 (18k); relating to: providers of medical assistance and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

Under 2001 Wisconsin Act 16 (the biennial budget act), numerous changes were made, effective January 1, 2003, to provisions relating to procedures for the recovery by the department of health and family services (DHFS) of alleged medical assistance (MA) provider overpayments or improper or erroneous payments, access by DHFS to provider records, and liability for repayment of improper or erroneous payments or overpayments of a provider who sells or transfers his or her business. In addition, the biennial budget act created provisions concerning limitations on the number of MA providers, conditions for certification of providers, and fees chargeable to certain providers. As further affected by the biennial budget act, each of these changes or new provisions requires rule making by DHFS for implementation. The changed or new provisions are as follows:

1. After providing reasonable notice and the opportunity for a hearing, DHFS is authorized to charge a fee to an MA provider that has repeatedly been subject to recoveries of MA payments because of the provider's failure to follow identical or similar billing procedures or to follow other identical or similar MA requirements. The fee must be used to defray in part the costs of audits and investigations by DHFS of medicaid or MA violations and to verify service provision and the appropriateness and accuracy of reimbursement claims. The fee may not exceed $1,000 or 200% of the amount of the repeated recovery, whichever is greater. DHFS may recover any part of such a fee that is not timely paid by offsetting the fee against any MA payment owed to the provider; the attorney general may collect the fees. Failure to timely pay a fee, other than by offsetting the fee against the MA payment owed, is grounds for MA decertification. DHFS must deposit the fees into an appropriation of program revenue for performance by DHFS of MA audits and investigations.

2. DHFS may require certain MA providers, as a condition of certification, to file with DHFS a surety bond, payable to DHFS, under terms and in an amount specified by DHFS by rule, that would reasonably pay the amount of a recovery and DHFS' costs to pursue recovery of overpayments or to investigate and pursue allegations of false claims or statements. Providers who are required to file the surety bonds are those who provide MA services, as specified by DHFS by rule, for which providers have demonstrated significant potential to violate fraud prohibitions, to require recovery of overpayments, or to need certain additional sanctions.

3. DHFS, if it first makes specified findings, may limit the number of providers of particular services that may receive MA certification or limit the amount of resources, including employees and equipment, that a certified provider may use to provide MA services and items.

4. Procedures for the recovery by DHFS of alleged MA provider overpayments or improper or erroneous payments include the opportunity for a provider to present information and argument to DHFS staff, a deadline for payment of recoveries, and payment of interest on delinquent amounts. (Former law required a hearing before recovery could be made.) If certain criteria are met, DHFS may suspend certification for a provider pending a hearing on whether the provider must be decertified for violation of federal or state laws. Lastly, DHFS may compel access to provider records, and a provider's failure to provide access constitutes grounds for decertification.

5. With respect to liability for repayment of improper or erroneous payments or overpayments of a provider who sells or transfers ownership of his or her business, before a person may take over the operations of an MA provider, the person must obtain MA certification with respect to the provider's operation, regardless of whether the person is currently certified. Also, before a person may take over the operation of an MA provider that is liable for repayment of improper or erroneous MA payments or overpayments, full repayment must be made. DHFS must, upon request, notify the person or provider as to whether the provider is liable. If, notwithstanding the prohibition, the person takes over the provider's operation, and the outstanding repayment is not made, DHFS may withhold certification from the person and may proceed against the provider or person. If, within 30 days after DHFS provides notice to the certified provider, the repayment is not paid in full, DHFS may bring an action to compel payment, to decertify a provider, or to do both.

Also under current law, DHFS must periodically set forth conditions of participation and reimbursement in a contract with an MA provider.

Effective January 1, 2003, this bill eliminates provisions created and changes made under the biennial budget act concerning MA providers, including charging a fee to an MA provider who has repeatedly been subject to recoveries of MA payments; the required filing of a surety bond as a condition of certification; authority for DHFS to limit the number of MA providers; and changes to procedures for recovery of alleged MA overpayments or improper or erroneous payments. The bill, instead, restores provisions that existed before enactment of the biennial budget act. The restored provisions include all of the following:

1. The requirement for DHFS to provide written notice and a hearing for sanctions, including decertification or suspension from the MA program, against providers who fail to comply with MA requirements or to whom MA payments have been improperly or erroneously made or overpayments have been made; the bill additionally requires that the hearing be conducted as a class 2 proceeding under the laws relating to administrative procedure.

2. If a provider who is liable for repayment of improper or erroneous MA payments or overpayments sells or otherwise transfers ownership of his or her business, the seller and transferee are each liable for the repayment. The transferee must contact DHFS to ascertain whether the seller has an outstanding amount owing. DHFS may bring an action to compel payment against either the seller or transferee if a sale or other transfer occurs and the amount has not been repaid.

3. The secretary of health and family services is authorized to sign and issue subpoenas for the production of books, patient records, and other information.

With respect to the requirement that DHFS periodically set forth conditions of participation and reimbursement, the bill requires that DHFS promulgate rules that specify criteria for and required procedures for submittal of appropriate claims for reimbursement.

Lastly, the bill eliminates the appropriation of program revenue for moneys received from fees imposed against noncomplying MA providers and transfers moneys in the appropriation to the general fund as of January 1, 2003.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB806, s. 1 Section 1. 20.435 (4) (iL) of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 2 Section 2. 49.45 (2) (a) 9. of the statutes is amended to read:

AB806,4,7 49.45 (2) (a) 9. Periodically set forth conditions of participation and reimbursement in a contract with provider for contracts with providers of service under this section. The department shall promulgate rules that specify criteria for and required procedures for submittal of appropriate claims for reimbursement.

AB806, s. 3 Section 3. 49.45 (2) (a) 10. a. of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 49.45 (2) (a) 10. and amended to read:

AB806,4,16 49.45 (2) (a) 10. After reasonable notice and opportunity for a hearing conducted as a class 2 proceeding under ch. 227, recover money improperly or erroneously paid or overpayments to a provider by offsetting or adjusting amounts owed the provider under the program, crediting against a provider's future claims for reimbursement for other services or items furnished by the provider under the program, or requiring the provider to make direct payment to the department or its fiscal intermediary.

AB806, s. 4 Section 4. 49.45 (2) (a) 10. b. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 5 Section 5. 49.45 (2) (a) 10. c. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 6 Section 6. 49.45 (2) (a) 11. a. of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 49.45 (2) (a) 11. and amended to read:

AB806,5,5 49.45 (2) (a) 11. Establish criteria for the certification of eligible providers of medical assistance and, except as provided in par. (b) 6m. and s. 49.48, and subject to par. (b) 7. and 8., certify providers who meet the criteria.

AB806, s. 7 Section 7. 49.45 (2) (a) 11. b. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 8 Section 8. 49.45 (2) (a) 12. a. of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 49.45 (2) (a) 12. and amended to read:

AB806,5,23 49.45 (2) (a) 12. Decertify or suspend under this subdivision a provider from or restrict a provider's participation in the medical assistance program, if after giving reasonable notice and opportunity for hearing the department finds that the provider has violated a federal statute or regulation or a state statute or administrative rule and the violation is by statute, regulation, or rule grounds for decertification or restriction. The department shall suspend the provider pending the hearing under this subdivision if the department includes in its decertification notice findings that the provider's continued participation in the medical assistance program pending hearing is likely to lead to the irretrievable loss of public funds and is unnecessary to provide adequate access to services to medical assistance recipients. As soon as practicable after the hearing, the department shall issue a written decision suspension. No payment may be made under the medical assistance program with respect to any service or item furnished by the provider subsequent to decertification or during the period of suspension.

AB806, s. 9 Section 9. 49.45 (2) (a) 12. b. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 10 Section 10. 49.45 (2) (a) 14. of the statutes is amended to read:

AB806,6,4 49.45 (2) (a) 14. Assure due process in implementing subds. 12. and 13. by providing written notice, a fair hearing and a written decision and a hearing conducted as a class 2 proceeding under ch. 227.

AB806, s. 11 Section 11. 49.45 (2) (b) 6m. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 12 Section 12. 49.45 (2) (b) 7. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 13 Section 13. 49.45 (2) (b) 8. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 14 Section 14. 49.45 (2) (b) 9. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 15 Section 15. 49.45 (3) (g) 1. of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 49.45 (3) (g) and amended to read:

AB806,7,9 49.45 (3) (g) The secretary may authorize personnel to audit or investigate and report to the department on any matter involving violations or complaints alleging violations of statutes, regulations, or rules applicable to the medical assistance program and to perform such investigations or audits as are required to verify the actual provision of services or items available under the medical assistance program and the appropriateness and accuracy of claims for reimbursement submitted by providers participating in the program. Department employees authorized by the secretary under this paragraph shall be issued, and shall possess at all times while they are performing their investigatory or audit functions under this section, identification, signed by the secretary, that specifically designates the bearer as possessing the authorization to conduct medical assistance investigations or audits. Under the request of a designated person and upon presentation of the person's authorization, providers and medical assistance recipients shall accord the person access to any provider personnel, records, books, or documents or other information needed. Under the written request of a designated person and upon presentation of the person's authorization, providers and recipients shall accord the person access to any needed patient health care records of a recipient. Authorized employees may hold hearings, administer oaths, take testimony, and perform all other duties necessary to bring the matter before the department for final adjudication and determination.

AB806, s. 16 Section 16. 49.45 (3) (g) 2. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.

AB806, s. 17 Section 17. 49.45 (3) (h) 1. of the statutes is created to read:

AB806,7,23 49.45 (3) (h) 1. For purposes of any audit, investigation, examination, analysis, review, or other function authorized by law with respect to the medical assistance program, the secretary shall have the power to sign and issue subpoenas to any person requiring the production of any pertinent books, records, patient health care records, or other information. Subpoenas so issued shall be served by anyone authorized by the secretary by delivering a copy to the person named in the subpoena, or by registered mail or certified mail addressed to the person at his or her last-known residence or principal place of business. A verified return by the person serving the subpoena setting forth the manner of service, or, in the event service is by registered or certified mail, the return post-office receipt signed by the person served constitutes proof of service.

AB806, s. 18 Section 18. 49.45 (3) (h) 1m. of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 49.45 (3) (h) 3. and amended to read:

AB806,8,10 49.45 (3) (h) 3. The failure or refusal of a provider to accord department auditors or investigators access as required under par. (g) to any provider personnel, records, books, patient health care records of medical assistance recipients, or documents or other information requested constitutes person to purge himself or herself of contempt found under s. 885.12 and perform the act as required by law shall constitute grounds for decertification or suspension of the provider that person from participation in the medical assistance program. No payment may be made for services rendered by the provider that person following decertification, or during the period of suspension, or during any period of provider failure or refusal to accord access as required under par. (g).

AB806, s. 19 Section 19. 49.45 (3) (h) 1n. of the statutes, as created by 2001 Wisconsin Act 16, is repealed.