49.49(1)(b)1.
1. In the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing by that person of items or services for which medical assistance is or may be made, a person violating this subsection is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(1)(b)2.
2. In the case of such a statement, representation, concealment, failure, or conversion by any other person, a person convicted of violating this subsection may be fined not more than $10,000 or imprisoned for not more than one year in the county jail or both.
49.49(1)(c)
(c)
Damages. If any person is convicted under this subsection, the state shall have a cause of action for relief against such person in an amount 3 times the amount of actual damages sustained as a result of any excess payments made in connection with the offense for which the conviction was obtained. Proof by the state of a conviction under this section in a civil action shall be conclusive regarding the state's right to damages and the only issue in controversy shall be the amount, if any, of the actual damages sustained. Actual damages shall consist of the total amount of excess payments, any part of which is paid by state funds. In any such civil action the state may elect to file a motion in expedition of the action. Upon receipt of the motion, the presiding judge shall expedite the action.
49.49(2)
(2) Kickbacks, bribes and rebates. 49.49(2)(a)(a)
Solicitation or receipt of remuneration. Any person who solicits or receives any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a medical assistance program, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a medical assistance program, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(2)(b)
(b)
Offer or payment of remuneration. Whoever offers or pays any remuneration including any kickback, bribe, or rebate directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a medical assistance program, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under a medical assistance program, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(2)(c)
(c)
Exceptions. This subsection shall not apply to:
49.49(2)(c)1.
1. A discount or other reduction in price obtained by a provider of services or other entity under
chs. 46 to
51 and
58 if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under a medical assistance program.
49.49(2)(c)2.
2. Any amount paid by an employer to an employee who has a bona fide employment relationship with such employer for employment in the provision of covered items or services.
49.49(3)
(3) Fraudulent certification of facilities. No person may knowingly and willfully make or cause to be made, or induce or seek to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation of any institution or facility in order that such institution or facility may qualify either upon initial certification or upon recertification as a hospital, skilled nursing facility, intermediate care facility, or home health agency. A person who violates this subsection is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(3m)(a)(a) No provider may knowingly impose upon a recipient charges in addition to payments received for services under
ss. 49.45 to
49.471 or knowingly impose direct charges upon a recipient in lieu of obtaining payment under
ss. 49.45 to
49.471 except under the following conditions:
49.49(3m)(a)2.
2. If an applicant is determined to be eligible retroactively under
s. 49.46 (1) (b),
49.47 (4) (d), or
49.471 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 payment under
s. 49.45 for covered services or benefits rendered to the recipient during the retroactive period. Upon receipt of payment under
s. 49.45, the provider shall reimburse the recipient or other person who has made prior payment to the provider for services provided to the recipient during the retroactive eligibility period, by the amount of the prior payment made.
49.49(3m)(a)3.
3. Benefits or services for which recipient copayment, coinsurance, or deductible is required under
s. 49.45 (18), not to exceed maximum amounts allowable under
42 CFR 447.53 to
447.58, or for which recipient copayment or coinsurance is required under
s. 49.471 (11).
49.49(3m)(b)
(b) A person who violates this subsection is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(3p)
(3p) Other prohibited provider charges. No provider may knowingly violate
s. 609.91 (2).
49.49(4)
(4) Prohibited facility charges. 49.49(4)(a)(a) 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 knowingly and willfully 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.
49.49(4)(b)
(b) A person who violates this subsection is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $25,000.
49.49(4m)
(4m) Prohibited conduct; forfeitures. 49.49(4m)(a)(a) No person, in connection with medical assistance, may:
49.49(4m)(a)1.
1. Knowingly make or cause to be made any false statement or representation of a material fact in any application for a benefit or payment.
49.49(4m)(a)2.
2. Knowingly make or cause to be made any false statement or representation of a material fact for use in determining rights to a benefit or payment.
49.49(4m)(a)3.
3. Knowingly conceal or fail to disclose any event of which the person has knowledge that affects his or her initial or continued right to a benefit or payment or affects the initial or continued right to a benefit or payment of any other person in whose behalf he or she has applied for or is receiving a benefit or payment.
49.49(4m)(b)
(b) A person who violates this subsection may be required to forfeit not less than $100 nor more than $15,000 for each statement, representation, concealment or failure.
49.49(5)
(5) County collection. Any county may retain 15% of state medical assistance funds that are recovered due to the efforts of a county employee or officer or, if the county initiates action by the department of justice, due to the efforts of the department of justice under
s. 49.495. This subsection applies only to recovery of medical assistance that was provided as a result of fraudulent activity by a recipient or by a provider.
49.49(6)
(6) Recovery. In addition to other remedies available under this section, the court may award the department of justice the reasonable and necessary costs of investigation, an amount reasonably necessary to remedy the harmful effects of the violation and the reasonable and necessary expenses of prosecution, including attorney fees, from any person who violates this section. The department of justice shall deposit in the state treasury for deposit in the general fund all moneys that the court awards to the department or the state under this subsection. The costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under
s. 20.455 (1) (gh).
49.49(7)
(7) Operation of nursing home or intermediate care facility by commission not prohibited. 49.49(7)(a)1.
1. "Commission" means an entity that is created by contract between 2 or more political subdivisions under
s. 66.0301 to operate a nursing home or intermediate care facility and to which all of the following apply:
49.49(7)(a)1.a.
a. The entity is the named licensee for the nursing home or intermediate care facility.
49.49(7)(a)1.b.
b. The entity is the certified provider under
s. 49.45 (2) (a) 11. for the nursing home or intermediate care facility and is the recipient of medical assistance reimbursement for services provided by the nursing home or intermediate care facility.
49.49(7)(a)1.c.
c. The entity owns or leases the building in which the nursing home or intermediate care facility is located.
49.49(7)(a)1.d.
d. The entity provides or contracts for provision of nursing home or intermediate care facility services.
49.49(7)(a)1.e.
e. The entity controls admissions and discharges from the nursing home or intermediate care facility.
49.49(7)(a)1.f.
f. The entity allocates the costs of operating the nursing home or intermediate care facility, and of providing services to residents of the nursing home or intermediate care facility, among the political subdivisions that are parties to the contract and assesses each political subdivision that is a party to the contract the portion of the costs allocated to that political subdivision.
49.49(7)(a)2.
2. "Member" means a political subdivision that is a party to a contract to create a commission.
49.49(7)(a)3.
3. "Political subdivision" means a county, city, village, or town.
49.49(7)(b)
(b) A commission's imposition of an assessment on a member for the costs incurred by the commission to operate the nursing home or intermediate care facility and to provide services to residents of the nursing home or intermediate care facility is a charge internal to the commission and does not constitute billing a 3rd party for services provided on behalf of an individual.
49.49(7)(c)
(c) A member's payment of an assessment described under
par. (b) is a transfer of funds internal to the commission and does not constitute a purchase of services on behalf of an individual, regardless of whether the payment is made from the member's general fund, made pursuant to a purchase of services agreement between a member's human services department or other department and the commission, or by a combination of these payment methods.
49.49(7)(d)
(d) A commission's imposition of an assessment described under
par. (b), a member's payment of the assessment as described under
par. (c), and acceptance of the payment by the commission do not constitute conduct prohibited under
sub. (4) or prohibited under
s. DHS 106.04 (3), Wis. Adm. Code, in effect on May 26, 2010. It is the intent of the legislature to create a mechanism whereby 2 or more political subdivisions may share in the operation, use, and funding of a nursing home or intermediate care facility without violating
42 USC 1320a-7b (d) or
42 USC 1396a (a) (25) (C).
49.49 Annotation
The only state of mind requirement for a violation of sub. (1) (a) 1. is the intentional making or causing the making of a false statement that appears in an application; that anyone actually received a medical assistance benefit need not be proved. State v. Williams,
179 Wis. 2d 80,
505 N.W.2d 468 (Ct. App. 1993).
49.49 Annotation
Sub. (3m) and related rules require medical assistance providers to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons. A private pay patient subsequently found retroactively eligible does not have a federally protected right to reimbursement from a medical assistance provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. Keup v. DHFS,
2004 WI 16,
269 Wis. 2d 59,
675 N.W.2d 755,
02-0456.
49.49 Annotation
Nursing home guarantor agreements may violate sub. (4) after a resident becomes certified Medicaid eligible.
76 Atty. Gen. 295.
49.49 Annotation
When the defendant hospital did not send bills directly to Medical Assistance patients, but rather filed liens against the patients' potential settlements with a tortfeasor's insurer, the liens did not constitute "direct charges upon" the patients and were therefore permissible under the plain language of the second prohibition in sub. (3m) (a). Gister v. American Family Mutual Ins. Co.
2012 WI 86, ___ Wis. 2d ___,
818 N.W.2d 880,
09-2795.
49.493
49.493
Benefits under uninsured health plans. 49.493(1)(a)
(a) "Department or contract provider" means the department, the county providing the medical benefits or assistance or a health maintenance organization that has contracted with the department to provide the medical benefits or assistance.
49.493(1)(b)
(b) "Medical benefits or assistance" means medical benefits under
s. 49.02 or
253.05 or medical assistance.
49.493(1)(c)
(c) "Uninsured health plan" means a partially or wholly uninsured plan, including a plan that is subject to
29 USC 1001 to
1461, providing health care benefits.
49.493(2)
(2) The providing of medical benefits or assistance constitutes an assignment to the department or contract provider, to the extent of the medical benefits or assistance provided, for benefits to which the recipient would be entitled under any uninsured health plan.
49.493(3)
(3) An uninsured health plan may not do any of the following:
49.493(3)(a)
(a) Exclude a person or a person's dependent from coverage under the uninsured health plan because the person or the dependent is eligible for medical assistance.
49.493(3)(b)
(b) Terminate its coverage of a person or a person's dependent because the person or the dependent is eligible for medical assistance.
49.493(3)(c)
(c) Provide different benefits of coverage to a person or the person's dependent because the person or the dependent is eligible for medical assistance than it provides to persons and their dependents who are not eligible for medical assistance.
49.493(3)(d)
(d) Impose on the department or contract provider, as assignee of a person or a person's dependent who is covered under the uninsured health plan and who is eligible for medical benefits or assistance, requirements that are different from those imposed on any other agent or assignee of a person who is covered under the uninsured health plan.
49.493(4)
(4) Benefits provided by an uninsured health plan shall be primary to medical benefits or assistance.
49.495
49.495
Jurisdiction of the department of justice. The department of justice or the district attorney may institute, manage, control and direct, in the proper county, any prosecution for violation of criminal laws affecting the medical assistance program including but not limited to laws relating to medical assistance contained in this subchapter and laws affecting the health, safety and welfare of recipients of medical assistance. For this purpose the department of justice shall have and exercise all powers conferred upon district attorneys in such cases. The department of justice or district attorney shall notify the medical examining board or the interested affiliated credentialing board of any such prosecution of a person holding a license granted by the board or affiliated credentialing board.
49.496
49.496
Recovery of correct medical assistance payments. 49.496(1)(b)
(b) "Home" means property in which a person has an ownership interest consisting of the person's dwelling and the land used and operated in connection with the dwelling.
49.496(1)(d)
(d) "Recipient" means a person who receives or received medical assistance.
49.496(2)
(2) Liens on the homes of nursing home residents and inpatients at hospitals. 49.496(2)(a)(a) Except as provided in
par. (b), the department may obtain a lien on a recipient's home if the recipient resides in a nursing home, or if the recipient resides in a hospital and is required to contribute to the cost of care, and the recipient cannot reasonably be expected to be discharged from the nursing home or hospital and return home. The lien is for the amount of medical assistance paid on behalf of the recipient that is recoverable under
sub. (3) (a).
49.496(2)(b)
(b) The department may not obtain a lien under this subsection if any of the following persons lawfully reside in the home:
49.496(2)(b)2.
2. The recipient's child who is under age 21 or is disabled.
49.496(2)(b)3.
3. The recipient's sibling who has an ownership interest in the home and who has lived in the home continuously beginning at least 12 months before the recipient was admitted to the nursing home or hospital.
49.496(2)(c)
(c) Before obtaining a lien on a recipient's home under this subsection, the department shall do all of the following:
49.496(2)(c)1.
1. Notify the recipient in writing of its determination that the recipient cannot reasonably be expected to be discharged from the nursing home or hospital, its intent to impose a lien on the recipient's home and the recipient's right to a hearing on whether the requirements for the imposition of a lien are satisfied.
49.496(2)(c)2.
2. Provide the recipient with a hearing if he or she requests one.
49.496(2)(d)
(d) The department shall obtain a lien under this subsection by recording a lien claim in the office of the register of deeds of the county in which the home is located.
49.496(2)(e)
(e) The department may not enforce a lien under this subsection while the recipient lives unless the recipient sells the home and does not have a living child who is under age 21 or disabled or a living spouse.
49.496(2)(f)
(f) The department may not enforce a lien under this subsection after the death of the recipient as long as any of the following survive the recipient:
49.496(2)(f)3.
3. A child of any age who resides in the home, if that child resided in the home for at least 24 months before the recipient was admitted to the nursing home or hospital and provided care to the recipient that delayed the recipient's admission to the nursing home or hospital.
49.496(2)(f)4.
4. A sibling who resides in the home, if the sibling resided in the home for at least 12 months before the recipient was admitted to the nursing home or hospital.
49.496(2)(g)
(g) The department may enforce a lien imposed under this subsection by foreclosure in the same manner as a mortgage on real property.
49.496(2)(h)
(h) The department shall file a release of a lien imposed under this subsection if the recipient is discharged from the nursing home or hospital and returns to live in the home.
49.496(3)(a)(a) Except as provided in
par. (b), the department shall file a claim against the estate of a recipient for all of the following, subject to the exclusion of any amounts under the Long-Term Care Partnership Program established under
s. 49.45 (31), unless already recovered by the department under this section:
