Section 106.13. Discretionary waivers and variances.

  A provider or recipient may apply for and the department shall consider applications for a discretionary waiver or variance of any rule in chs. DHS 102 to 105 , 107 and 108 , excluding ss. DHS 107.02 (1) (b) , (2) (e) to (j) and (3) (a) and (b) and (d) to (h) , 107.03 (1) to (8) and (10) to (18) , and 107.035 . Waivers and variances shall not be available to permit coverage of services that are either expressly identified as non-covered in ch. DHS 107 or are not expressly mentioned in ch. DHS 107 . The following requirements and procedures apply to applications under this section:

(1)   Requirements for a discretionary waiver or variance. A discretionary wavier or variance may be granted only if the department finds all of the following are met:

(a) The waiver or variance will not adversely affect the health, safety or welfare of any recipient;

(b) Either:

1. Strict enforcement of a requirement would result in unreasonable hardship on the provider or on a recipient; or

2. An alternative to a rule, including a new concept, method, procedure or technique, new equipment, new personnel qualifications or the implementation of a pilot project is in the interests of better care or management;

(c) The waiver or variance is consistent with all applicable state and federal statutes and federal regulations;

(d) Consistent with the MA state plan and with the federal health care financing administration and other applicable federal program requirements, federal financial participation is available for all services under the waiver or variance; and

(e) Services relating to the waiver or variance are medically necessary.

(2)   Application for a discretionary waiver or variance.

(a) A request for a waiver or variance may be made at any time. All applications for a discretionary waiver or variance shall be made in writing to the department, specifying the following:

1. The rule from which the waiver or variance is requested;

2. The time period for which the waiver or variance is requested;

3. If the request is for a variance, the specific alternative action which the provider proposes;

4. The reasons for the request; and

5. Justification that sub. (1) would be satisfied.

(b) The department may require additional information from the provider or the recipient prior to acting on the request.

(c) The terms of a discretionary waiver or variance may be modified by the department at any time to ensure that the requirements of sub. (1) and the conditions or limitations established under this paragraph are met during the duration of the waiver or variance. The department may impose any conditions or limitations on the granting of a discretionary waiver or variance necessary to ensure that the requirements of sub. (1) are met during the duration of the waiver or variance or to ensure compliance with rules not waived or varied. The department may limit the duration of any discretionary waiver or variance.

(d) The department may revoke a discretionary waiver or variance at any time if it determines that the terms, conditions or limitations established under par. (c) or any of the requirements under sub. (1) are not met, if it determines that there is evidence of fraud or MA program abuse by the provider or recipient, or if any of the facts upon which the waiver or variance was originally based is no longer true. The department may also revoke a waiver or variance at any time upon request of the applicant. The department shall mail a written notice at least 10 days prior to the effective date of the revocation or modification to the provider or recipient who originally requested the waiver or variance.

(e) The denial, modification, limitation or revocation of a discretionary waiver or variance may be contested under s. DHS 106.12 or 104.01 (5) by the provider or recipient who requested the discretionary waiver or variance, provided that the sole issue in any fair hearing under this paragraph is whether the department acted in an arbitrary and capricious manner or otherwise abused its discretion in denying, modifying, limiting or revoking a discretionary waiver or variance.

History: Cr. Register, February, 1993, No. 446 , eff. 3-1-93; correction in (intro.) made under s. 13.92 (4) (b) 7. , Stats., Register December 2008 No. 636 .

Note

Discretionary waiver or variance requests should be sent to the Division of Health Care Financing, P.O. Box 309, Madison, Wisconsin 53701. Microsoft Windows NT 6.1.7601 Service Pack 1