Section 106.12. Procedure, pleadings and practice.

 

(1)   Scope. The provisions of this section shall govern the following administrative actions by the department:

(a) Decertification or suspension of a provider from the medical assistance program pursuant to s. 49.45 (2) (a) 12. , Stats.;

(b) Imposition of additional sanctions for non-compliance with the terms of provider agreements under s. 49.45 (2) (a) 9. , Stats., or certification criteria established under s. 49.45 (2) (a) 11. , Stats., pursuant to s. 49.45 (2) (a) 13. , Stats.; and

(c) Any action or inaction for which due process is otherwise required under s. 227.42 , Stats.

(1m)   Application. The provisions of this section do not apply to either of the following:

(a) Hearings to contest recoveries by the department of overpayments to providers. Requests for hearings and hearings under these circumstances are governed exclusively by s. DHS 108.02 (9) (e) ; or

(b) Contests by providers of the propriety of the amount of payment received from the department, including contests of claim payment denials. The exclusive procedure for these contests is as provided in s. DHS 106.03 (3) (b) 5, except as may be provided under the terms of the applicable provider agreement, pursuant to s. 49.45 (2) (a) 9. , Stats.

(2)   Due process. The department shall assure due process in implementing any action described in sub. (1) by providing written notice, a fair hearing and written decision pursuant to s. 49.45 (2) (a) 14. , Stats., or as otherwise required by law. In addition to any provisions of this section, the procedures implementing a fair hearing and a written decision shall comply with the provisions of ch. 227 , Stats.

(3)   Written notice. The department shall begin actions described under sub. (1) by serving upon the provider written notice of the intended action or written notice of the action. Notice of intended action described under sub. (1) (a) and (b) shall include the following:

(a) A brief and plain statement specifying the nature of and identifying the statute, regulation or rule giving the department the authority to initiate the action;

(b) A short and plain statement identifying the nature of the transactions, occurrences or events which served as the basis for initiating the action; and

(c) A statement advising the provider of the right to a hearing and the procedure for requesting a hearing.

(4)   Request for hearing. A provider desiring to contest a departmental action or inaction under sub. (1) may request a hearing on any matter contested. The request shall be in writing and shall:

(a) Be served upon the department of administration's division of hearings and appeals unless otherwise directed by the secretary;

(b) For requests for hearings on actions or intended actions by the department, be served within 15 days of the date of service of the department's notice of intended action or notice of action;

(c) For requests for hearings on inactions by the department, be served within 60 days from the date the provider first became aware of, or should have become aware of with the exercise of reasonable diligence, the cause of the appeal;

(d) Contain a brief and plain statement identifying every matter or issue contested; and

(e) Contain a brief and plain statement of any new matter which the provider believes constitutes a defense or mitigating factor with respect to non-compliance alleged in the notice of action.

(5)   Timing of actions taken against a provider.

(a) Except as provided under par. (b) , if no request for a hearing is timely filed, no action described in sub. (1) (a) and (b) may be taken by the department until 15 days after the notice of intended action has been served. Except as provided under par. (b) , if a request for a hearing has been timely filed, no action described in sub. (1) (a) or (b) may be taken by the department until the hearing examiner issues a final decision.

(b) Actions described under sub. (1) (a) and (b) may be taken against a provider 15 days after service of the notice of intended action and without a prior hearing when the action is initiated by the department under s. DHS 106.06 (4) , (5) , (6) , (8) or (28) . If the provider prevails at the hearing, the provider shall be reinstated retroactive to the date of de-certification or suspension.

(6)   Final decision.

(a) If payment of claims to the provider is being withheld by the department under s. DHS 106.08 (1) , a final decision shall be made by the department within 150 days of receipt of the hearing request.

(b) The hearing examiner's decision shall be the final decision of the department for contested actions under sub. (1) (a) and (b) .

(7)   Effect of failure to appear at hearing.

(a) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b) , the hearing examiner may enter an order dismissing the department's action, pursuant to the motion of the provider or on its own motion.

(b) If the department fails to appear on the date set for a hearing on a contested action under sub. (1) (c) , the hearing examiner may enter an order granting the relief sought by the provider upon due proof of facts which show the provider's entitlement to the relief.

(c) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (a) or (b) , the hearing examiner may enter an order dismissing the provider's appeal upon due proof of facts which show the department's entitlement to the remedy or relief sought in the action.

(d) If the provider fails to appear on the date set for a hearing on a contested action under sub. (1) (c) the hearing examiner may enter an order dismissing the provider's appeal, pursuant to the motion of the department or on its own motion.

(e) The department of administration's division of hearings and appeals may by order reopen a default arising from a failure of either party to appear on the date set for hearing. The order may be issued upon motion or petition duly made and good cause shown. The motion shall be made within 20 days after the date of the hearing examiner's default order.

(8)   Dates of service. The date of service of a written notice required under sub. (3) shall be the date on which the provider receives the notice. The notice shall be conclusively presumed to have been received within 5 days after evidence of mailing. The date of service of a request for hearing under sub. (4) shall be the date on which the division of hearings and appeals receives the request.

History: Cr. Register, December, 1979, No. 288 , eff. 2-1-80; r. and recr. Register, February, 1986, No. 362 , eff. 3-1-86; am. (1) (c) and (4) (b), r. and recr. (5) (a) and (b), r. (5) (c), cr. (8), Register, February, 1988, No. 386 , eff. 3-1-88; renum. from HSS 106.10, r. (1m), Register, February, 1993, No. 446 , eff. 3-1-93; correction in (1m) (a) made under s. 13.92 (4) (b) 7. , Stats., Register December 2008 No. 636 .

Note

Hearing requests should be sent to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707. Microsoft Windows NT 6.1.7601 Service Pack 1