Section DHS 109.53 - Department recovery of overpayments from SeniorCare providers(1) RECOUPMENT METHODS. If the department finds that a SeniorCare provider has received an overpayment, including but not limited to erroneous, excess, duplicative and improper payments under the program, regardless of cause, the department may recover the amount of the overpayment by any of the following methods, at its discretion: (a) Offsetting or making an appropriate adjustment against other amounts owed the SeniorCare provider for covered services.(b) Offsetting or crediting against amounts the department determines are owed the SeniorCare provider for subsequent services provided under the program if both of the following conditions are met: 1. The amount owed the SeniorCare provider at the time of the department's finding is insufficient to recover in whole the amount of the overpayment.2. The SeniorCare provider is claiming and receiving SeniorCare reimbursement in amounts sufficient to reasonably ensure full recovery of the overpayment within a reasonable period of time.(c) Requiring the SeniorCare provider to pay directly to the department the amount of the overpayment.(2) WRITTEN NOTICE. No recovery by offset, adjustment or demand for payment may be made by the department under sub. (1), except as provided under sub. (3), unless the department gives the SeniorCare provider prior written notice of the department's intention to recover the amount determined to have been overpaid. The notice shall set forth the amount of the intended recovery, the method of the intended recovery, identify the claim or claims in question or other basis for recovery, summarize the basis for the department's finding that the SeniorCare provider has received amounts to which the SeniorCare provider is not entitled or in excess of that to which the SeniorCare provider is entitled, and inform the SeniorCare provider of a right to appeal the intended action under sub. (5). The SeniorCare provider shall make payment due the department within 30 days after the date of service of the notice of intent to recover. The department shall send final notices of intent to recover by certified mail. (3) EXCEPTION. The department is not required to provide written notice under sub. (2) when the overpayment was made as a result of a computer processing or clerical error, for a recoupment of a manual partial payment, or when the SeniorCare provider requested or authorized the recovery to be made. In any of these cases, the department shall provide written notice of any payment adjustments made on the next remittance issued the SeniorCare provider. The notice shall specify the amount of the adjustment made and the claim that was the subject of the adjustment.(4) WITHHOLDING OF PAYMENT INVOLVING FRAUD OR WILLFUL MISREPRESENTATION. (a) The department may withhold SeniorCare payments, in whole or in part, to a SeniorCare provider upon the department's receipt of reliable evidence that the circumstances giving rise to the need for withholding payments involve fraud or willful misrepresentation under the SeniorCare program. Reliable evidence of fraud or willful misrepresentation includes a prosecuting attorney's filing of criminal charges against the SeniorCare provider or one of its agents or employees. The department may withhold payments without first notifying the SeniorCare provider of its intention to withhold the payments.(b) The department shall send written notice to the SeniorCare provider of the department's withholding of SeniorCare program payments within 5 calendar days after taking that action. The notice shall generally set forth the allegations leading to the withholding, but need not disclose any specific information concerning the ongoing investigation of allegations of fraud and willful misrepresentation. The notice shall provide all of the following information: 1. A statement that payments are being withheld in accordance with this paragraph.2. A statement that the withholding action is for a temporary period, as defined under par. (c), and that cites the circumstances under which withholding will be terminated.3. When appropriate, a statement specifying to which type of SeniorCare claims withholding is effective.4. A statement informing the SeniorCare provider that the provider has a right to submit to the department written evidence regarding the allegations of fraud and willful misrepresentation for consideration by the department.(c) Withholding of the SeniorCare provider's payments shall be temporary. Payment withholding may not continue after any of the following events occurs: 1. The department determines after a preliminary investigation there is not sufficient evidence of fraud or willful misrepresentation by the SeniorCare provider to require referral of the matter to an appropriate law enforcement agency and, to the extent of the department's knowledge, the matter is not already the subject of an investigation or a prosecution by a law enforcement agency or a prosecuting authority.2. Any law enforcement agency or prosecuting authority that has investigated or commenced prosecution of the matter determines there is insufficient evidence of fraud or misrepresentation by the SeniorCare provider to pursue criminal charges or civil forfeitures.3. Legal proceedings relating to the SeniorCare provider's alleged fraud or willful misrepresentation are completed and charges against the provider have been dismissed. In the case of a conviction of a SeniorCare provider for criminal or civil forfeiture offenses, those proceedings may not be regarded as being completed until all appeals are exhausted. In the case of an acquittal in or dismissal of criminal or civil forfeiture proceedings against a SeniorCare provider, the proceedings shall be regarded as complete at the time of dismissal or acquittal regardless of any opportunities for appeal the prosecuting authority may have.(5) REQUEST FOR HEARING ON RECOVERY ACTION. If a SeniorCare provider chooses to contest the propriety of a proposed recovery under sub. (1), the SeniorCare provider shall, within 20 days after receipt of the department's notice of intent to recover, request a hearing on the matter. The request shall be submitted in writing to the department of administration's division of hearings and appeals and shall briefly identify the basis for contesting the proposed recovery. The date of service of a SeniorCare provider's request for a hearing shall be the date on which the department of administration's division of hearing and appeals receives the request. Receipt of a timely request for hearing shall prevent the department from making the proposed recovery while the hearing proceeding is pending. If a timely request for hearing is not received, the department may recover from current or future obligations of the program to the SeniorCare provider the amount specified in the notice of intent to recover and may take such other legal action as it deems appropriate to collect the amount specified. All hearings on recovery actions by the department shall be held in accordance with the provisions of ch. 227, Stats. Wis. Admin. Code Department of Health Services DHS 109.53
CR 02-154: cr. Register April 2003 No. 568, eff. 5-1-03. A hearing request should be mailed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707, 608-266-3096. Hearing requests may be delivered in person to that office at 5005 University Ave., Room 201, Madison, Wisconsin or transmitted by facsimile machine to 608-264-9885.