DHS 108.02(9)(d)1.1. The department may suspend MA payments to a provider after the department determines there is a credible allegation of fraud for which an investigation is pending under the MA program against an individual or entity unless the department has good cause, as provided in subd.
6., to not suspend payments or to suspend payment only in part. A credible allegation of fraud is an allegation which has been verified by the department, from any source. Allegations are credible when they have indicia of reliability and the department has reviewed all allegations, facts, and evidence carefully. The department shall act judiciously on a case-by-case basis and will make referrals as appropriate. The department may withhold payments without first notifying the provider of its intention to withhold the payments. A provider is entitled to a hearing under s.
DHS 106.12.
DHS 108.02(9)(d)2.
2. The department shall send written notice to the provider of the department's suspension of MA program payments within 5 days after taking that action unless requested in writing by a law enforcement agency to temporarily withhold such notice. Law enforcement requests may last up to 30 days and may be renewed in writing up to twice and in no event may exceed 90 days. The notice shall state all of the following:
DHS 108.02(9)(d)2.b.
b. That the withholding action is for a temporary period, as defined under subd.
3., and cite the circumstances under which the suspension of payments will be terminated.
DHS 108.02(9)(d)2.c.
c. When appropriate, which type of MA claims or business units of a provider for which suspension is effective.
DHS 108.02(9)(d)2.d.
d. That the provider has a right to submit to the department written evidence regarding the allegations of fraud for consideration by the department. The provider shall be informed of this right.
DHS 108.02(9)(d)3.
3.
Suspension of the provider's payments shall be temporary. Suspension of payment may not continue after any of the following circumstances occurs:
DHS 108.02(9)(d)3.a.
a. The department or prosecuting authorities determine there is not sufficient evidence of fraud.
DHS 108.02(9)(d)3.c.
c. Legal proceedings relating to the provider's alleged fraud are completed and charges against the provider have been dismissed. In the case of a conviction of a provider for criminal or civil forfeiture offenses, those proceedings shall 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 provider, the proceedings shall be regarded as complete at the time of dismissal or acquittal regardless of any opportunities for appeal which the prosecuting authority may have.
DHS 108.02(9)(d)4.
4. The department shall document in writing the termination of a suspension.
DHS 108.02(9)(d)5.
5. Whenever a department investigation leads to the initiation of a payment suspension in whole or part, the department shall make a fraud referral to the department of justice medicaid fraud control and elder abuse unit. The fraud referral shall be made in writing, conform to fraud referral performance standards, and be provided to the department of justice medicaid fraud control and elder abuse unit no later than the next business day after the suspension is enacted. If the department of justice medicaid fraud control and elder abuse unit accepts the fraud referral for investigation, the payment suspension may be continued until the investigation and any associated enforcement proceedings are completed. On a quarterly basis the department shall request certification from the department of justice medicaid fraud control and elder abuse unit that any matter accepted on the basis of a referral continues to be under investigation. If the department of justice medicaid fraud control and elder abuse unit declines to accept the fraud referral for investigation, the payment suspension shall be discontinued.
DHS 108.02(9)(d)6.
6. The department may find that good cause exists not to suspend payments or to not continue a previously imposed payment suspension if any of the following are applicable:
DHS 108.02(9)(d)6.a.
a. Law enforcement officials have requested that a payment suspension not be imposed because such a payment suspension may compromise or jeopardize an investigation.
DHS 108.02(9)(d)6.b.
b. Other available remedies implemented by the department more effectively or quickly protect MA funds.
DHS 108.02(9)(d)6.c.
c. The department determines, based upon the submission of written evidence by the provider, that the suspension should be removed.
DHS 108.02(9)(d)6.d.
d. Beneficiary access to items or services would be jeopardized by a payment suspension if the provider is the sole community physician or the sole source of essential specialized services in a community or the provider serves a large number of beneficiaries within a health resources and services administration-designated medically underserved area.
DHS 108.02(9)(d)6.e.
e. Law enforcement declines to certify that a matter continues to be under investigation.
DHS 108.02(9)(d)6.f.
f. The department determines that payment suspension is not in the best interests of the MA program.
DHS 108.02(9)(d)7.
7. The department may find that good cause exists to suspend payments in part, or to convert a previously imposed payment suspension in whole to one only in part, to a provider against which there is an investigation of a credible allegation of fraud if any of the following are applicable:
DHS 108.02(9)(d)7.a.
a. Beneficiary access to items or services would be jeopardized by a payment suspension in whole or part because provider is the sole community physician or the sole source of essential specialized services in a community, or the provider serves a large number of beneficiaries within a health resources and services administration-designated medically underserved area.
DHS 108.02(9)(d)7.b.
b. The department determines, based upon the submission of written evidence by the provider, that the suspension should be imposed only in part.
DHS 108.02(9)(d)7.c.
c. The credible allegation focuses solely and definitively on only a specific type of claim or arises from only a specific business unit of the provider and the department determines and documents in writing that a payment suspension in part would effectively ensure that potentially fraudulent claims were not continuing to be paid.
DHS 108.02(9)(d)7.d.
d. Law enforcement declines to certify that a matter continues to be under investigation.
DHS 108.02(9)(d)7.e.
e. The department determines that payment suspension is not in the best interests of the MA program.
DHS 108.02(9)(d)8.
8. The department shall do all of the following relative to documentation and record retention:
DHS 108.02(9)(d)8.a.
a. Maintain for a minimum of 5 years from the date of issuance all materials documenting the life cycle of a payment suspension that was imposed in whole or part, including all notices of suspension of payment in whole or part, all fraud referrals to the department of justice medicaid fraud control and elder abuse unit, all quarterly certifications of continuing investigation status by law enforcement, and all notices documenting the termination of a suspension.
DHS 108.02(9)(d)8.b.
b. Maintain for a minimum of 5 years from the date of issuance all materials documenting each instance where a payment was not imposed, imposed only in part, or discontinued for good cause. This type of documentation shall include, at a minimum, detailed information on the basis for the existence of the good cause not to suspend payments, to suspend payments only in part, or to discontinue a payment suspension and, where applicable, must specify how long the department anticipates such a good cause will exist.
DHS 108.02(9)(e)
(e) Request for hearing on recovery action. If a provider chooses to contest the propriety of a proposed recovery under par.
(a), the 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 in writing and shall briefly identify the basis for contesting the proposed recovery. 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 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. The date of service of a provider's request for a hearing shall be the date on which the department of administration division of hearings and appeals receives the request.
DHS 108.02(10)
(10)
Estate recovery. The department shall file a claim against the estate of a recipient or client or against the estate of the surviving spouse of a recipient or client as provided in ss.
49.496 and
49.849, Stats., and s.
46.27 (7g), 2017 Stats., to recover only the following:
DHS 108.02(10)(a)
(a) The amount of medical assistance paid on or after October 1, 1991, on behalf of the recipient while the recipient resided in a nursing home.
DHS 108.02(10)(b)
(b) The amount of medical assistance paid on or after July 1, 1995, on behalf of the recipient while the recipient was an inpatient in a hospital and was required to contribute to the cost of care pursuant to s.
DHS 103.07 (1) (d).
DHS 108.02(10)(c)
(c) The amount of medical assistance paid on or after July 1, 1995, for any of the following services provided to the recipient under the medical assistance program or any federal medical assistance waiver program under
42 USC 1396n (c) or
1396u after the recipient attained 55 years of age:
DHS 108.02(10)(c)5.
5. Inpatient services which are billed separately by providers and which are listed as non-covered hospital services in s.
DHS 107.08 (4) (d) provided during a period of time in which the recipient was approved to have home and community-based waiver services funded pursuant to
42 USC 1396n (c) or
1396u.
DHS 108.02(10)(d)
(d) The amount of long-term community support services paid on or after January 1, 1996, on behalf of a client for services funded under s.
46.27 (7), 2017 Stats., after the client attained 55 years of age.
DHS 108.02(11)(a)(a) The department may make adjustments to and settle estate claims and liens filed under s.
49.496 or
49.849, Stats., and s.
46.27 (7g), 2017 Stats., to obtain the fullest amount practicable.
DHS 108.02(11)(b)
(b) The department shall take a lien in full or partial settlement of an estate claim against the portion of an estate that is a home if either of the following apply:
DHS 108.02(11)(b)1.
1. A child of the recipient or client, regardless of age, resides in the decedent's home and that child resided in the home for at least 24 months before:
DHS 108.02(11)(b)1.a.
a. The date the recipient was admitted to a nursing home, the expenses for which are subject to recovery under sub.
(10) (a), and that child provided care to the recipient that delayed the recipient's admission to the nursing home;
DHS 108.02(11)(b)1.b.
b. The date the recipient was admitted to a hospital, the expenses of which are subject to recovery under sub.
(10) (b), and that child provided care to the recipient that delayed the recipient's admission to the hospital; or
DHS 108.02(11)(b)1.c.
c. The date the recipient or client began receiving services which are subject to recovery under sub.
(10) (c) 3. or
(d), and that child provided care to the recipient or client that delayed the recipient's or client's receipt of the services.
DHS 108.02(11)(b)2.
2. A sibling of the recipient or client resides in the decedent's home and that sibling resided in the home for at least 12 months before:
DHS 108.02(11)(b)2.a.
a. The date the recipient was admitted to a nursing home, the expenses for which are subject to recovery under sub.
(10) (a);
DHS 108.02(11)(b)2.b.
b. The date the recipient was admitted to a hospital, the expenses for which are subject to recovery under sub.
(10) (b); or
DHS 108.02(11)(c)
(c) Except as provided in par.
(d), the lien shall be payable upon the death of the child or sibling or upon the transfer of the property, whichever comes first.
DHS 108.02(11)(d)
(d) If the child or sibling sells the home against which the department has taken a lien under par.
(b) and uses the proceeds of that sale to buy another home which will be used as the child's or sibling's primary residence, then the following apply:
DHS 108.02(11)(d)1.
1. If the amount of the child's or sibling's payment for or down payment on the second home is equivalent to or greater than the amount received as the proceeds from the sale of the first home, the department shall transfer the lien to the second home.
DHS 108.02(11)(d)2.
2. If the amount of the child's or sibling's payment for or down payment on the second home is less than the amount received as the proceeds from the sale of the first home, the department may recover the amount of the lien to the extent that the proceeds from the sale of the first home exceed the amount of the child's or sibling's payment or down payment on the second home. The department shall transfer any remaining portion of the lien to the second home.
DHS 108.02(12)(a)1.
1. “Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.
DHS 108.02(12)(a)2.
2. “Decedent” means a deceased recipient or the deceased surviving spouse of a recipient who received benefits that are subject to recovery under s.
49.496 or
49.849, Stats., and s.
46.27 (7g), 2017 Stats.
DHS 108.02(12)(a)3.
3. “Heir" means any person who is entitled under the statutes of intestate succession, ch.
852, Stats., to an interest in property of a decedent.
DHS 108.02(12)(a)4.
4. “Recipient” means a person who received services funded by medical assistance or the long-term community support program under s.
46.27 (7), 2017 Stats.
DHS 108.02(12)(a)5.
5. “Waiver applicant” means a beneficiary or heir of a decedent who requests the department to waive an estate claim filed by the department pursuant to s.
49.496 or
49.849, Stats, and s.
46.27 (7g), 2017 Stats.
DHS 108.02(12)(b)1.1. A beneficiary or heir of a decedent may apply to the department for a waiver of an estate claim filed by the department. The department shall review an application for a waiver under this subsection and shall determine whether the applicant meets the criterion under subd.
2. a.,
b. or
c. If the department determines that the criterion under subd.
2. a.,
b. or
c. is met, the department shall waive its claim as to that applicant.
DHS 108.02(12)(b)2.
2. Any of the following situations constitutes an undue hardship on the waiver applicant:
DHS 108.02(12)(b)2.a.
a. The waiver applicant would become or remain eligible for supplemental security income (SSI), food stamps under
7 USC 2011 to
2029, or medical assistance if the department pursued its claim.
DHS 108.02(12)(b)2.b.
b. A decedent's real property is used as part of the waiver applicant's business, which may be a working farm, and recovery by the department would affect the property and would result in the waiver applicant losing his or her means of livelihood.
DHS 108.02(12)(b)2.c.
c. The waiver applicant is receiving general relief, relief to needy Indian persons or veterans benefits based on need under s.
45.40 (1m), Stats.
DHS 108.02(12)(c)1.1. The department shall provide written notice of the hardship waiver provisions to the person handling the decedent's estate, if that person can be ascertained from the probate information provided to the department, or, if that person cannot be ascertained, the department shall include the notice with the copy of the claim it files with the probate court.
DHS 108.02(12)(c)2.
2. The person handling the decedent's estate shall be responsible for notifying the decedent's beneficiaries and heirs of the hardship waiver provisions.
DHS 108.02(12)(d)1.1. A waiver applicant shall mail his or her application for a waiver in writing to the department within 45 days after the date the department mailed its claim or affidavit pursuant to s.
49.496 or
49.849, Stats., or its notice under par.
(c), whichever is later. The application shall include the following information:
DHS 108.02(12)(d)1.a.
a. The relationship of the waiver applicant to the decedent and copies of documents establishing that relationship; and
DHS 108.02(12)(d)1.b.
b. The criterion under par.
(b) 2. a.,
b., or
c. which is the basis for the application and documentation supporting the waiver applicant's position.
DHS 108.02(12)(d)2.
2. The department shall review each application and issue a written decision within 90 days after the application was received by the department. The department shall consider all information received within 60 days following receipt of the application. The department's decision shall be based on information received within that time-period. The department's written decision shall include information regarding the waiver applicant's right to a hearing under par.
(e).
DHS 108.02(12)(e)1.1. If a waiver applicant wishes to contest the department's decision denying a waiver, the waiver applicant shall serve the department with a request for a hearing within 45 days of the date the department's decision was mailed. The hearing request shall be in writing and shall identify the basis for contesting the decision. The request shall be submitted to the department of administration's division of hearings and appeals. The date on which the division of hearings and appeals receives the request shall be the date of service.
DHS 108.02 Note
Note: The mailing address of the division of hearings and appeals is P.O. Box 7875, Madison, Wisconsin 53707.
DHS 108.02(12)(e)2.
2. If a waiver applicant wishes to introduce information at the hearing that he or she did not submit to the department under par.
(d), the applicant shall provide the department with that information by mailing it to the department with a postmark of at least 7 working days prior to the hearing date.
