LRB-4879/1
DAK:kg:pg
2001 - 2002 LEGISLATURE
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
1An Act to repeal 20.435 (4) (iL), 49.45 (2) (a) 10. b., 49.45 (2) (a) 10. c., 49.45 (2)
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.,
349.45 (2) (b) 9., 49.45 (3) (g) 2., 49.45 (3) (h) 1n., 49.45 (21) (ag) and 49.45 (21)
4(e);
to renumber and amend 49.45 (2) (a) 10. a., 49.45 (2) (a) 11. a., 49.45 (2)
5(a) 12. a., 49.45 (3) (g) 1., 49.45 (3) (h) 1m. and 49.45 (21) (ar);
to amend 49.45
6(2) (a) 9., 49.45 (2) (a) 14., 49.45 (21) (title), 49.45 (21) (b), 49.85 (2) (a), 49.85 (3)
7(a) 1., 71.93 (1) (a) 3. and 227.43 (1) (bg);
to create 49.45 (3) (h) 1. and 49.45 (3)
8(h) 2. of the statutes; and
to affect 2001 Wisconsin Act 16, section
9323 (18k),
9(18m), (18n), (18pk), (18pm) and (18pn) and
2001 Wisconsin Act 16, section
109423 (18k);
relating to: providers of medical assistance and requiring the
11exercise 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. 2
3Section
2. 49.45 (2) (a) 9. of the statutes is amended to read:
AB806,4,74
49.45
(2) (a) 9. Periodically set forth conditions of participation and
5reimbursement
in a contract with provider for contracts with providers of service
6under this section.
The department shall promulgate rules that specify criteria for
7and required procedures for submittal of appropriate claims for reimbursement.
AB806,4,1610
49.45
(2) (a) 10. After reasonable notice and opportunity for
a hearing
11conducted as a class 2 proceeding under ch. 227, recover money improperly or
12erroneously paid or overpayments to a provider by offsetting or adjusting amounts
13owed the provider under the program, crediting against a provider's future claims
14for reimbursement for other services or items furnished by the provider under the
15program, or requiring the provider to make direct payment to the department or its
16fiscal intermediary.
AB806,5,53
49.45
(2) (a) 11. Establish criteria for
the certification of
eligible providers of
4medical assistance and, except as provided in
par. (b) 6m. and s. 49.48
, and subject
5to par. (b) 7. and 8., certify providers who meet the criteria.
AB806,5,2310
49.45
(2) (a) 12. Decertify
or suspend under this subdivision a provider from
11or restrict a provider's participation in the medical assistance program, if after
12giving reasonable notice and opportunity for hearing the department finds that the
13provider has violated a federal statute or regulation or a state statute or
14administrative rule and the violation is by statute, regulation, or rule grounds for
15decertification or
restriction. The department shall suspend the provider pending
16the hearing under this subdivision if the department includes in its decertification
17notice findings that the provider's continued participation in the medical assistance
18program pending hearing is likely to lead to the irretrievable loss of public funds and
19is unnecessary to provide adequate access to services to medical assistance
20recipients. As soon as practicable after the hearing, the department shall issue a
21written decision suspension. No payment may be made under the medical assistance
22program with respect to any service or item furnished by the provider subsequent to
23decertification or during the period of suspension.
AB806, s. 10
1Section
10. 49.45 (2) (a) 14. of the statutes is amended to read:
AB806,6,42
49.45
(2) (a) 14. Assure due process in implementing subds. 12. and 13. by
3providing written notice
, a fair hearing and a written decision and a hearing
4conducted as a class 2 proceeding under ch. 227.
AB806,7,915
49.45
(3) (g) The secretary may authorize personnel to audit or investigate and
16report to the department on any matter involving violations or complaints alleging
17violations of statutes, regulations, or rules applicable to the medical assistance
18program and to perform such investigations or audits as are required to verify the
19actual provision of services or items available under the medical assistance program
20and the appropriateness and accuracy of claims for reimbursement submitted by
21providers participating in the program. Department employees authorized by the
22secretary under this paragraph shall be issued, and shall possess at all times while
23they are performing their investigatory or audit functions under this section,
24identification, signed by the secretary, that specifically designates the bearer as
25possessing the authorization to conduct medical assistance investigations or audits.
1Under the request of a designated person and upon presentation of the person's
2authorization, providers and medical assistance recipients shall accord the person
3access to any
provider personnel, records, books, or documents or other information
4needed. Under the written request of a designated person and upon presentation of
5the person's authorization, providers and recipients shall accord the person access
6to any needed patient health care records of a recipient. Authorized employees may
7hold hearings, administer oaths, take testimony, and perform all other duties
8necessary to bring the matter before the department for final adjudication and
9determination.
AB806, s. 17
12Section
17. 49.45 (3) (h) 1. of the statutes is created to read:
AB806,7,2313
49.45
(3) (h) 1. For purposes of any audit, investigation, examination, analysis,
14review, or other function authorized by law with respect to the medical assistance
15program, the secretary shall have the power to sign and issue subpoenas to any
16person requiring the production of any pertinent books, records, patient health care
17records, or other information. Subpoenas so issued shall be served by anyone
18authorized by the secretary by delivering a copy to the person named in the
19subpoena, or by registered mail or certified mail addressed to the person at his or her
20last-known residence or principal place of business. A verified return by the person
21serving the subpoena setting forth the manner of service, or, in the event service is
22by registered or certified mail, the return post-office receipt signed by the person
23served constitutes proof of service.
AB806,8,10
149.45
(3) (h) 3. The failure or refusal of a
provider to accord department
2auditors or investigators access as required under par. (g) to any provider personnel,
3records, books, patient health care records of medical assistance recipients, or
4documents or other information requested constitutes person to purge himself or
5herself of contempt found under s. 885.12 and perform the act as required by law
6shall constitute grounds for decertification or suspension of
the provider that person 7from participation in the medical assistance program. No payment may be made for
8services rendered by
the provider that person following decertification
, or during the
9period of suspension
, or during any period of provider failure or refusal to accord
10access as required under par. (g).
AB806, s. 20
13Section
20. 49.45 (3) (h) 2. of the statutes is created to read:
AB806,8,1714
49.45
(3) (h) 2. In the event of contumacy or refusal to obey a subpoena issued
15under this paragraph and duly served upon any person, any judge in a court of record
16in the county in which the person was served may enforce the subpoena in accordance
17with s. 885.12.
AB806,8,2120
49.45
(21) (title)
Taking over provider's operation Transfer of business,
21liability for; repayments required.
AB806,9,9
149.45
(21) (a)
Before a person may take over the operation of a provider that
2is If any provider liable for repayment of improper or erroneous payments or
3overpayments under ss. 49.43 to 49.497
, full repayment shall be made. Upon
4request, the department shall notify the provider or the person that intends to take
5over the operation of the provider as to whether the provider
sells or otherwise
6transfers ownership of his or her business or all or substantially all of the assets of
7the business, the transferor and transferee are each liable for the repayment. Prior
8to final transfer, the transferee is responsible for contacting the department and
9ascertaining if the transferor is liable
under this paragraph.
AB806,9,2112
49.45
(21) (b)
If, notwithstanding the prohibition under par. (ar), a person takes
13over the operation of a provider If a transfer occurs and the applicable amount under
14par.
(ar) (a) has not been repaid, the department may
, in addition to withholding
15certification as authorized under sub. (2) (b) 8., proceed against
the provider or the
16person either the transferor or the transferee. Within 30 days after
the certified
17provider receives receiving notice from the department, the
transferor or the
18transferee shall pay the amount
shall be repaid in full.
If the amount is not repaid
19in full Upon failure to comply, the department may bring an action to compel
20payment
,. If a transferor fails to pay within 90 days after receiving notice from the
21department, the department may proceed under sub. (2) (a) 12.
, or may do both.
AB806,10,8
149.85
(2) (a) At least annually, the department of health and family services
2shall certify to the department of revenue the amounts that, based on the
3notifications received under sub. (1) and on other information received by the
4department of health and family services, the department of health and family
5services has determined that it may recover under s.
49.45 (2) (a) 10. or 49.497, except
6that the department of health and family services may not certify an amount under
7this subsection unless it has met the notice requirements under sub. (3) and unless
8its determination has either not been appealed or is no longer under appeal.
AB806,10,1411
49.85
(3) (a) 1. Inform the person that the department of health and family
12services intends to certify to the department of revenue an amount that the
13department of health and family services has determined to be due under s.
49.45
14(2) (a) 10. or 49.497, for setoff from any state tax refund that may be due the person.
AB806,10,1917
71.93
(1) (a) 3. An amount that the department of health and family services
18may recover under s.
49.45 (2) (a) 10. or 49.497, if the department of health and
19family services has certified the amount under s. 49.85.