Chapter 49

49.475(1)(c)2. 2. Claims processing, retail network management, or payment of claims to pharmacies for prescription drugs dispensed to individuals.

49.475(1)(c)3. 3. Clinical formulary development and management services.

49.475(1)(c)4. 4. Rebate contracting and administration.

49.475(1)(c)5. 5. Conduct of patient compliance, therapeutic intervention, generic substitution, and disease management programs.

49.475(1)(d) (d) “Pharmacy benefits manager” means an entity that performs pharmacy benefits management.

49.475(1)(e) (e) “Recipient” means an individual or his or her spouse or dependent who has been or is one of the following:

49.475(1)(e)1. 1. A recipient of medical assistance or of a program administered under medical assistance under a waiver of federal Medicaid laws.

49.475(1)(e)2. 2. An enrollee of family care.

49.475(1)(e)3. 3. A recipient of the Badger Care health care program.

49.475(1)(e)4. 4. An individual who receives benefits under s. 49.68, 49.683, or 49.685.

49.475(1)(e)5. 5. A participant in the program of prescription drug assistance for elderly persons under s. 49.688.

49.475(1)(e)6. 6. A woman who receives services that are reimbursed under s. 255.06.

49.475(1)(f) (f) “Third party” means an entity that by statute, rule, contract, or agreement is responsible for payment of a claim for a health care item or service, including any of the following:

49.475(1)(f)1. 1. An insurer.

49.475(1)(f)2. 2. An employee benefit plan, as defined in 29 USC 1002 (3).

49.475(1)(f)3. 3. A service benefit plan, as defined in 5 USC 8903 (1).

49.475(1)(f)4. 4. A pharmacy benefits manager.

49.475(1)(f)5. 5. A group health plan, as defined in 29 USC 1191b (a) (1), including a self-insured plan.

49.475(1)(f)6. 6. The issuer of a disability insurance policy.

49.475(1)(f)7. 7. An entity that administers benefits on behalf of another risk-bearing 3rd party, including a 3rd-party administrator, a fiscal intermediary, or a managed care contractor.

49.475(2) (2) Requirements of 3rd parties.

49.475(2)(ac) (ac) As a condition of doing business in this state, a 3rd party shall do all of the following:

49.475(2)(ac)1. 1. Upon the department’s request and in the manner prescribed by the department, provide information to the department necessary for the department to ascertain all of the following with respect to a recipient:

49.475(2)(ac)1.a. a. Whether the recipient is being or has been provided coverage or a benefit or service by a 3rd party.

49.475(2)(ac)1.b. b. If subd. 1. a. applies, the nature and period of time of any coverage, benefit, or service provided, including the name, address, and identifying number of any applicable coverage plan.

49.475(2)(ac)2. 2. Accept assignment to the department of a right of a recipient to receive 3rd-party payment for an item or service for which payment under medical assistance has been made and accept the department’s right to recover any 3rd-party payment made for which assignment has not been accepted.

49.475(2)(ac)3. 3. Respond to an inquiry by the department concerning a claim for payment of a health care item or service if the department submits the inquiry less than 36 months after the date on which the health care item or service was provided.

49.475(2)(ac)4. 4. If all of the following apply, agree not to deny a claim submitted by the department under subd. 2. solely because of the claim’s submission date, the type or format of the claim form, or failure by a recipient to present proper documentation at the time of delivery of the service, benefit, or item that is the basis of the claim:

49.475(2)(ac)4.a. a. The department submits the claim less than 36 months after the date on which the health care item or service was provided.

49.475(2)(ac)4.b. b. Action by the department to enforce the department’s rights under this section with respect to the claim is commenced less than 72 months after the department submits the claim.

49.475(2)(bc) (bc) A 3rd party shall accept the submission of claims from the department under par. (ac) 2. in electronic form and shall timely pay the claims in the manner provided in s. 628.46 (1) and (2). For purposes of timely payment of claims under this paragraph, “written notice” under s. 628.46 (1) includes receipt of a claim in electronic form.

49.475(2m) (2m) Limits on information to be provided.

49.475(2m)(a) (a) The information that the department may request under this section is limited to the information specified in sub. (2) (ac) 1. and does not include an employer’s name unless that information is necessary for the department or a provider to obtain 3rd-party payment for an item or service.

49.475(2m)(b) (b) If information under sub. (2) (ac) 1. may be available from more than one source that includes an employer operating a self-insured plan, the department shall seek the information first from a 3rd-party administrator or other entity identified in sub. (1) (f) 7. or pharmacy benefits manager before seeking the information from the employer.

49.475(2m)(c) (c) Information obtained under this section may be used only for the purposes specified in this section and in federal law on 3rd-party liability in Medical Assistance programs.

49.475(3) (3) Written agreement. Upon requesting a 3rd party to provide the information under sub. (2) (ac) 1., the department and the 3rd party shall enter into a written agreement that satisfies all of the following:

49.475(3)(a) (a) Identifies the detailed format of the information to be provided to the department.

49.475(3)(b) (b) Includes provisions that adequately safeguard the confidentiality of the information to be disclosed.

49.475(3)(c) (c) Specifies how the 3rd party’s reimbursable costs under sub. (5) will be determined and specifies the manner of payment.

49.475(4) (4) Deadline for response; enforcement.

49.475(4)(a) (a) A 3rd party shall provide the information requested under sub. (2) (ac) 1. within 180 days after receiving the department’s request if it is the first time that the department has requested the 3rd party to disclose information under this section.

49.475(4)(b) (b) A 3rd party shall provide the information requested under sub. (2) (ac) 1. within 30 days after receiving the department’s request if the department has previously requested the 3rd party to disclose information under this section.

49.475(4)(c) (c) If an insurer fails to comply with par. (a) or (b), the department may notify the commissioner of insurance, and the commissioner of insurance may initiate enforcement proceedings against the insurer under s. 601.41 (4) (a).

49.475(4)(d) (d) If a 3rd party other than an insurer fails to comply with par. (a) or (b), the department may so notify the attorney general.

49.475(5) (5) Reimbursement of costs. From the appropriations under s. 20.435 (4) (bm) and (pa), the department shall reimburse a 3rd party that provides information under sub. (2) (ac) 1. for the 3rd party’s reasonable costs incurred in providing the requested information, including its reasonable costs, if any, to develop and operate automated systems specifically for the disclosure of the information.

49.475(6) (6) Sharing information. The department of health services shall provide to the department of children and families, for purposes of the medical support liability program under s. 49.22, any information that the department of health services receives under this section. The department of children and families may allow a county child support agency under s. 59.53 (5) or a tribal child support agency access to the information, subject to the use and disclosure restrictions under s. 49.83, and shall consult with the department of health services regarding procedures and methods to adequately safeguard the confidentiality of the information provided under this subsection.

49.475 History History: 1991 a. 39; 1999 a. 9; 2007 a. 20 ss. 1610 to 1626, 9121 (6) (a); 2011 a. 189; 2013 a. 20.

49.48 49.48 Denial, nonrenewal and suspension of certification of service providers based on certain delinquency in payment.

49.48(1) (1) Except as provided in sub. (1m), the department shall require each applicant to provide the department with the applicant’s social security number, if the applicant is an individual, as a condition of issuing or renewing a certification under s. 49.45 (2) (a) 11. as an eligible provider of services.

49.48(1m) (1m) If an individual who applies for or to renew a certification under sub. (1) does not have a social security number, the individual, as a condition of obtaining the certification, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. A certification issued or renewed in reliance upon a false statement submitted under this subsection is invalid.

49.48(2) (2) The department may not disclose any information received under sub. (1) to any person except to the department of children and families for the purpose of making certifications required under s. 49.857.

49.48(3) (3) The department shall deny an application for the issuance or renewal of a certification specified in sub. (1), shall suspend a certification specified in sub. (1) or may, under a memorandum of understanding under s. 49.857 (2), restrict a certification specified in sub. (1) if the department of children and families certifies under s. 49.857 that the applicant for or holder of the certificate is delinquent in the payment of court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse or fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings.

49.48 History History: 1997 a. 191; 1999 a. 9; 2007 a. 20.

49.485 49.485 False claims. Whoever knowingly presents or causes to be presented to any officer, employee, or agent of this state a false claim for medical assistance shall forfeit not less than $5,000 nor more than $10,000, plus 3 times the amount of the damages that were sustained by the state or would have been sustained by the state, whichever is greater, as a result of the false claim. The attorney general may bring an action on behalf of the state to recover any forfeiture incurred under this section.

49.485 History History: 2007 a. 20.

49.49 49.49 Medical assistance offenses.

49.49(1d) (1d) Damages. If any person is convicted under s. 946.91 (2), 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 s. 946.91 (2) 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(3p) (3p) Prohibited provider charges. No provider may knowingly violate s. 609.91 (2).

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 percent 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. 49.846. 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) (a) In this subsection:

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 s. 946.91 (6) 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 History History: 1977 c. 418; 1979 c. 89; 1981 c. 317; 1985 a. 29 s. 3202 (23); 1985 a. 269; 1989 a. 23, 31; 1995 a. 27; 1997 a. 283; 2001 a. 109; 2003 a. 309; 2007 a. 20; 2009 a. 283; 2013 a. 226; 2015 a. 195 s. 83.

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 The state had a constitutional right to a jury trial on its claim under sub. (4m). State v. Abbott Laboratories, 2012 WI 62, 341 Wis. 2d 510, 816 N.W.2d 145, 10-0232.

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 Insurance Co., 2012 WI 86, 342 Wis. 2d 496, 818 N.W.2d 880, 09-2795.

49.49 Annotation Sub. (6) permits recovery of attorney fees for private counsel hired by the state. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232.

49.49 Annotation Sub. (4m) (a) 2. unambiguously applies to the amount of payment as well as the right to be paid. State v. Abbott Laboratories, 2013 WI App 31, 346 Wis. 2d 565, 829 N.W.2d 753, 10-0232.

49.49 Annotation Nursing home guarantor agreements may violate sub. (4) after a resident becomes certified Medicaid eligible. 76 Atty. Gen. 295.

49.493 49.493 Benefits under uninsured health plans.