Chapter 49

49.496(7) (7) Installment payments. If a recovery under sub. (3) does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.

49.496 History History: 1991 a. 39, 269; 1993 a. 301, 437, 491; 1995 a. 27; 1997 a. 27; 1999 a. 9; 2003 a. 33; 2007 a. 20; 2009 a. 15; 2013 a. 20, 92, 151.

49.496 Annotation Preserving the Homestead of the Small Estate: Wisconsin’s Medical Assistance Recovery Law. Gilbert. Wis. Law. July 1992.

49.497 49.497 Recovery of incorrect Medical Assistance or Badger Care payments and of unpaid employer penalties.

49.497(1) (1) 

49.497(1)(a) (a) The department may recover any payment made incorrectly for benefits provided under this subchapter or s. 49.665 if the incorrect payment results from any of the following:

49.497(1)(a)1. 1. A misstatement or omission of fact by a person supplying information in an application for benefits under this subchapter or s. 49.665.

49.497(1)(a)2. 2. The failure of a Medical Assistance or Badger Care recipient or any other person responsible for giving information on the recipient’s behalf to report the receipt of income or assets in an amount that would have affected the recipient’s eligibility for benefits.

49.497(1)(a)3. 3. The failure of a Medical Assistance or Badger Care recipient or any other person responsible for giving information on the recipient’s behalf to report any change in the recipient’s financial or nonfinancial situation or eligibility characteristics that would have affected the recipient’s eligibility for benefits or the recipient’s cost-sharing requirements.

49.497(1)(b) (b) The department’s right of recovery is against any Medical Assistance or Badger Care recipient to whom or on whose behalf the incorrect payment was made. The extent of recovery is limited to the amount of the benefits incorrectly granted. The county department under s. 46.215 or 46.22 or the governing body of a federally recognized American Indian tribe administering Medical Assistance or Badger Care shall begin recovery actions on behalf of the department according to rules promulgated by the department.

49.497(1m) (1m) 

49.497(1m)(a) (a) If, after notice that an incorrect payment was made, a recipient, or parent of a minor recipient, who is liable for repayment of an incorrect payment fails to repay the incorrect payment or enter into, or comply with, an agreement for repayment, the department may bring an action to enforce the liability or may issue an order to compel payment of the liability. The department shall issue the order to compel payment personally or by any type of mail service that requires a signature of acceptance from the recipient at the address of the person who is liable for repayment as it appears on the records of the department. The refusal or failure to accept or receive the order to compel payment by the person who is liable for repayment does not prevent the department from enforcing the order to compel repayment. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order. The only issue at the hearing shall be the determination by the department that the person has not repaid the incorrect payment or entered into, or complied with, an agreement for repayment.

49.497(1m)(b) (b) If any recipient, or parent of a minor recipient, named in an order to compel payment issued under par. (a) fails to pay the department any amount due under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a true and accurate copy of the order to the circuit court for any county. An affidavit from the collections unit of the department responsible for recoveries under this section shall be evidence of the incorrect payment. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

49.497(1m)(c) (c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

49.497(1r) (1r) 

49.497(1r)(a) (a) The department may recover any penalty assessment not paid under s. 49.471 (9) (c) from the employer against which the penalty was assessed. If, after notice that payment of a penalty is overdue, the employer who is liable fails to pay the penalty amount, or enter into or comply with an agreement for payment, the department may bring an action to enforce the liability or may issue an order to compel payment of the liability. The department shall issue the order to compel payment personally or by any type of mail service that requires a signature of acceptance from the recipient at the address of the employer who is liable for repayment as it appears on the records of the department. The refusal or failure to accept or receive the order to compel payment by the employer who is liable for repayment does not prevent the department from enforcing the order to compel repayment. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order. The only issue at the hearing shall be the determination by the department that the person has not paid the penalty or entered into, or complied with, an agreement for payment.

49.497(1r)(b) (b) If any employer named in an order to compel payment issued under par. (a) fails to pay the department any amount due under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a true and accurate copy of the order to the circuit court for any county. An affidavit from the collections unit of the department responsible for recoveries under this section shall be evidence of the failure to pay the penalty. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

49.497(1r)(c) (c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

49.497(2) (2) 

49.497(2)(a) (a) Except as provided in par. (b), a county or governing body of a federally recognized American Indian tribe may retain 15 percent of benefits provided under this subchapter or s. 49.665 that are recovered under this section due to the efforts of an employee or officer of the county or tribe.

49.497(2)(b) (b) Any amount that Milwaukee County would otherwise be entitled to retain under par. (a) for benefits recovered due to the efforts of a department employee or officer, or a county employee or officer under the management of the department, shall be credited to the appropriation account under s. 20.435 (4) (L).

49.497(3) (3) Cash assets of medical assistance recipients that exceed asset limitations shall be applied against the cost of medical assistance benefits provided.

49.497(4) (4) The department may appear for the state in any and all collection matters under this section, and may commence suit in the name of the department to recover an incorrect payment from the recipient to whom or on whose behalf it was made or to recover an unpaid penalty from the employer against which the penalty was assessed.

49.497(5) (5) The department may make an agreement with a recipient, or parent of a minor recipient, who is liable under sub. (1), providing for repayment of an incorrect payment at a specified rate or amount.

49.497 History History: 1981 c. 20; 1983 a. 27, 192; 1985 a. 176; 1987 a. 27; 1989 a. 31, 173, 359; 2005 a. 25, 254; 2007 a. 20, 97; 2009 a. 15; 2017 a. 59.

49.497 Annotation There is no statutory authority to order a mother to repay lying-in expenses paid by medical assistance. State v. R.R.R., 166 Wis. 2d 306, 479 N.W.2d 237 (Ct. App. 1991).

49.498 49.498 Requirements for skilled nursing facilities.

49.498(1) (1) Definitions. In this section:

49.498(1)(a) (a) “Active treatment for developmental disability” means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual’s acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual’s current optimal functional status. “Active treatment for developmental disability” does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.

49.498(1)(b) (b) “Active treatment for mental illness” means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under ch. 448 and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.

49.498(1)(c) (c) “Developmental disability” means any of the following:

49.498(1)(c)1. 1. Significantly subaverage general intellectual functioning that is concurrent with an individual’s deficits in adaptive behavior and that manifested during the individual’s developmental period.

49.498(1)(c)2. 2. A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in 42 CFR 435.1009.

49.498(1)(d) (d) “Licensed health professional” has the meaning given under 42 USC 1396r (b) (5) (G).

49.498(1)(e) (e) “Managing employee” means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.

49.498(1)(f) (f) “Medicare” means coverage under part A or part B of Title XVIII of the federal social security act, 42 USC 1395 to 1395zz.

49.498(1)(g) (g) “Mental illness” has the meaning given under 42 USC 1396r (e) (7) (G) (i).

49.498(1)(h) (h) “Nurse aide” has the meaning given under 42 USC 1396r (b) (5) (F).

49.498(1)(i) (i) “Nursing facility” has the meaning given under 42 USC 1396r (a).

49.498(1)(j) (j) “Physician” has the meaning given under s. 448.01 (5).

49.498(1)(k) (k) “Psychopharmacologic drugs” means drugs that modify psychological functions and mental states.

49.498(1)(L) (L) “Registered professional nurse” means a registered nurse who is licensed under ch. 441 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k).

49.498(1)(m) (m) “Resident” means an individual who resides in a nursing facility.

49.498(2) (2) Requirements relating to provision of services.

49.498(2)(a) (a)

49.498(2)(a)1. 1. A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.

49.498(2)(a)2. 2. A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:

49.498(2)(a)2.a. a. Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.

49.498(2)(a)2.b. b. Develop and implement appropriate plans of action to correct identified quality deficiencies.

49.498(2)(a)3. 3. A quality assessment and assurance committee described under subd. 2. may establish written guidelines or procedures for making therapeutic alternate drug selections for the purposes of s. 450.01 (16) (hm) if the committee members include a pharmacist, as defined in s. 450.01 (15).

49.498(2)(b) (b) A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:

49.498(2)(b)1. 1. Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;

49.498(2)(b)2. 2. Is initially prepared, with participation to the extent practicable of the resident or the resident’s family or legal counsel, by a team which includes the resident’s attending physician and a registered professional nurse who has responsibility for the resident; and

49.498(2)(b)3. 3. Is periodically reviewed and revised by the team in subd. 2. after the conduct of an assessment under par. (c).

49.498(2)(c) (c)

49.498(2)(c)1. 1. A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident’s functional capacity that:

49.498(2)(c)1.a. a. Describes the resident’s capability to perform daily life functions and significant impairments in the resident’s functional capacity.

49.498(2)(c)1.b. b. Is based on a uniform minimum data set of core elements and common definitions specified as required under 42 USC 1395i-3 (f) (6) (A).

49.498(2)(c)1.c. c. Uses an instrument which shall be specified by the department by rule.

49.498(2)(c)1.d. d. Includes identification of the resident’s medical problems.

49.498(2)(c)2. 2. A registered professional nurse shall conduct or coordinate with the appropriate participation of health professionals, sign and certify the completion of an assessment under subd. 1. Each individual who completes a portion of the assessment shall sign and certify as to the accuracy of that portion of the assessment.

49.498(2)(c)3. 3. No individual may willfully and knowingly certify under subd. 2. a material and false statement in an assessment.

49.498(2)(c)4. 4. No individual may willfully and knowingly cause another individual to certify under subd. 2. a material and false statement in an assessment.

49.498(2)(c)5. 5. If the department determines by survey of a nursing facility or otherwise that an individual has knowingly and willfully certified a false assessment under subd. 2., the department may require that individuals who are independent of the nursing facility and are approved by the department conduct and certify assessments under this paragraph.

49.498(2)(c)6. 6. A nursing facility shall:

49.498(2)(c)6.a. a. Conduct an assessment under subd. 1. no later than 4 days after the admission of an individual admitted after September 30, 1990.

49.498(2)(c)6.b. b. Conduct all of the assessments under subd. 1. for a resident of the nursing facility by October 1, 1991, for a resident who resides in the facility on that date; promptly after a significant change in a resident’s physical or mental condition; and, for every resident, no less often than once every 12 months.

49.498(2)(c)6.c. c. Examine a resident no less frequently than once every 3 months and, as appropriate, revise the resident’s assessment under subd. 1. to assure the assessment’s continuing accuracy.

49.498(2)(c)7. 7. The assessment conducted under subd. 1. shall be used in developing, reviewing and revising a nursing facility resident’s plan of care under par. (b).

49.498(2)(c)8. 8. A nursing facility shall coordinate an assessment conducted under this paragraph with the conduct of preadmission screening under s. 49.45 (6c) (b) to the maximum extent practicable in order to avoid duplicative testing and effort.

49.498(2)(d) (d)

49.498(2)(d)1. 1. To the extent needed to fulfill the plans of care required under par. (b), a nursing facility shall provide or arrange for the provision of all of the following, which shall meet professional standards of quality:

49.498(2)(d)1.a. a. Nursing services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.b. b. Medically related social services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.c. c. Pharmaceutical services, including procedures that assure the accurate acquiring, receiving, dispensing and administering of all drugs and biologicals, to meet the needs of each resident.

49.498(2)(d)1.d. d. Dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident.

49.498(2)(d)1.e. e. An ongoing program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.f. f. Routine dental services to the extent covered under the approved state medicaid plan and emergency dental services to meet the needs of each resident.

49.498(2)(d)2. 2. Services specified under subd. 1. a. to d. and f. shall be provided to a resident by qualified persons in accordance with the resident’s written plan of care under par. (b).

49.498(2)(d)3. 3. Unless waived under subd. 4., a nursing facility shall:

49.498(2)(d)3.a. a. Provide 24-hour per day licensed nursing services which are sufficient to meet the nursing needs of its residents; and

49.498(2)(d)3.b. b. Shall use the services of a registered professional nurse at least 8 consecutive hours per day, 7 days per week.

49.498(2)(d)4. 4. Subject to subd. 5., the department may waive the requirement under subd. 3. a. or b. if all of the following apply:

49.498(2)(d)4.a. a. The nursing facility demonstrates to the satisfaction of the department that the nursing facility has been unable, despite diligent efforts including offering wages at the community prevailing rate for nursing facilities, to recruit appropriate personnel.

49.498(2)(d)4.b. b. The department determines that a waiver of the requirement will not endanger the health or safety of nursing facility residents.

49.498(2)(d)4.c. c. The department finds that a registered professional nurse or a physician is obligated to respond immediately to telephone calls from the nursing facility for any periods in which licensed nursing services are not available.

49.498(2)(d)5. 5. A waiver under subd. 4. is subject to annual review by the department and to review by the secretary of the federal department of health and human services. The department may, in granting or reviewing a waiver, require the nursing facility to employ other qualified, licensed personnel.

49.498(2)(e) (e) Except as otherwise provided in s. 146.40, all of the following apply:

49.498(2)(e)2. 2. A nursing facility may not use the individual as a nurse aide unless the nursing facility has inquired of the department concerning information about the individual in the registry under s. 146.40 (4g).