State Codes and Statutes

Statutes > Wisconsin > 49 > 49.49

49.49

49.49 Medical assistance offenses.

49.49(1)

(1) Fraud.

49.49(1)(a)

(a) Prohibited conduct. No person, in connection with a medical assistance program, may:

49.49(1)(a)1.

1. Knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for any benefit or payment.

49.49(1)(a)2.

2. Knowingly and willfully make or cause to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment.

49.49(1)(a)3.

3. Having knowledge of the occurrence of any event affecting the initial or continued right to any such benefit or payment or the initial or continued right to any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceal or fail to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

49.49(1)(a)4.

4. Having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such benefit or payment or any part thereof to a use other than for the use and benefit of such other person.

49.49(1)(b)

(b) Penalties. Violators of this subsection may be punished as follows:

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)

(3m) Prohibited provider charges.

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)1.

1. Benefits or services are not provided under s. 49.46 (2) or 49.471 (11) and the recipient is advised of this fact prior to receiving the service.

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)

(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 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 - ANNOT.

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.

49.49 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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

State Codes and Statutes

Statutes > Wisconsin > 49 > 49.49

49.49

49.49 Medical assistance offenses.

49.49(1)

(1) Fraud.

49.49(1)(a)

(a) Prohibited conduct. No person, in connection with a medical assistance program, may:

49.49(1)(a)1.

1. Knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for any benefit or payment.

49.49(1)(a)2.

2. Knowingly and willfully make or cause to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment.

49.49(1)(a)3.

3. Having knowledge of the occurrence of any event affecting the initial or continued right to any such benefit or payment or the initial or continued right to any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceal or fail to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

49.49(1)(a)4.

4. Having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such benefit or payment or any part thereof to a use other than for the use and benefit of such other person.

49.49(1)(b)

(b) Penalties. Violators of this subsection may be punished as follows:

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)

(3m) Prohibited provider charges.

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)1.

1. Benefits or services are not provided under s. 49.46 (2) or 49.471 (11) and the recipient is advised of this fact prior to receiving the service.

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)

(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 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 - ANNOT.

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.

49.49 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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

State Codes and Statutes


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State Codes and Statutes

Statutes > Wisconsin > 49 > 49.49

49.49

49.49 Medical assistance offenses.

49.49(1)

(1) Fraud.

49.49(1)(a)

(a) Prohibited conduct. No person, in connection with a medical assistance program, may:

49.49(1)(a)1.

1. Knowingly and willfully make or cause to be made any false statement or representation of a material fact in any application for any benefit or payment.

49.49(1)(a)2.

2. Knowingly and willfully make or cause to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment.

49.49(1)(a)3.

3. Having knowledge of the occurrence of any event affecting the initial or continued right to any such benefit or payment or the initial or continued right to any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceal or fail to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

49.49(1)(a)4.

4. Having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such benefit or payment or any part thereof to a use other than for the use and benefit of such other person.

49.49(1)(b)

(b) Penalties. Violators of this subsection may be punished as follows:

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)

(3m) Prohibited provider charges.

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)1.

1. Benefits or services are not provided under s. 49.46 (2) or 49.471 (11) and the recipient is advised of this fact prior to receiving the service.

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)

(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 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 - ANNOT.

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.

49.49 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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

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