Keup v. Wisconsin Department of Health & Family Services

2004 WI 16, 675 N.W.2d 755, 269 Wis. 2d 59, 2004 Wisc. LEXIS 22

• Court: Wisconsin Supreme Court
• Decided: March 4, 2004
• Docket: 02-0456
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This case is before us on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000).¹ AltheaM. Keup (Keup) appeals from an order of the circuit court, which denied Keup's motion for summary judgment, and granted the Department of Health & Family Services' (DHFS) motion for summary judgment. Keup filed a request for a fair hearing with the Division of Hearings and Appeals (Division) to recoup the full amount paid by her as a private pay patient at the nursing home facilities of a medical assistance provider. The Division concluded that it did not have jurisdiction to hear Keup's claim and dismissed her fair hearing request.

¶ 2. Keup then filed an action in Ozaukee County Circuit Court, seeking review of the Division's order dismissing her fair hearing request, and also pleading an independent claim under 42 U.S.C. § 1983 (1999).² The circuit court granted DHFS' motion for summary judgment. Keup appealed from the circuit court's grant of summary judgment, and, as noted, the court of appeals then certified this case to us.

¶ 3. First, we address the certified question of whether, after the State has retroactively compensated a medical assistance provider for nursing home services provided to a private pay patient and the provider has reimbursed the patient in the amount of the medical assistance, the patient has a federally protected right to reimbursement from the provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. Second, we address the certified question of whether the Division has jurisdiction, under Wis. Stat. § 49.45(5)(a) (1999-2000),³ to grant a private pay patient's request for full reimbursement from a medical assistance provider.

¶ 4. We conclude that the circuit court properly granted DHFS' motion for summary judgment. We hold that a private pay patient does not have a federally protected right to reimbursement from the provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. At the time of admittance, Keup was neither a medical assistance applicant nor a recipient. Pursuant to 42 U.S.C. § 1396r(c)(4)(B)(i) and 42 C.F.R. § 483.12(c)(2) (1999),⁴ medical assistance providers may charge private pay patients any rate they deem appropriate, provided that the patient has notice as to the amount of the charge. We conclude that Wis. Stat. § 49.49(3m), Wis. Admin. Code § HFS 104.01(11) (Apr. 1999),⁵ and the Medical Assistance Provider Handbook, Section VI, page A6-002 (Handbook) appropriately require medical assistance providers to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons.⁶ We further hold that the Division did not have jurisdiction to hear this claim, as none of the statutory bases for jurisdiction under Wis. Stat. § 49.45(5)(a) or Wis. Admin. Code § HFS 104.01(5)(a)l were satisfied.

I

¶ 5. In late September 1999, Keup moved into Mequon Care Center (Mequon), a nursing home facility. Mequon is a medical assistance service provider for the Medical Assistance Program, a federal health insurance program administered by the states. Upon admittance, Mequon accepted Keup as a private pay patient. Keup prepaid the October 1999 charge at the private monthly rate of $4540.38.

¶ 6. On October 21, 1999, after she had already moved into Mequon, Keup applied for medical assistance benefits. On October 29, 1999, Keup was approved for benefits retroactive to October 1, 1999. DHFS, the Wisconsin agency responsible for administering the medical assistance program, paid Mequon for Keup's care in October in the amount of $3471.52 at the then prevailing rate of $106.26 per day. In accordance with State policy, Mequon then refunded the same to Keup. Thus, Keup's total out-of-pocket expenses were $1068.86.

¶ 7. Believing she was entitled to a refund of the full amount she had paid, Keup filed a request for a fair hearing with the Division pursuant to Wis. Stat. § 49.45(5).⁷ A hearing was held before a Division examiner. At the hearing, Keup contested the validity of the policy regarding refunds reflected in Wis. Stat. § 49.49(3m),⁸ Wis. Admin. Code § HFS 104.01(H),⁹ and the Handbook,¹⁰ alleging that the provisions conflicted with federal regulations. Keup requested that DHFS be required to give her a full refund of the total amount she had paid. The Division concluded that Keup's request did not invoke any of the instances under § 49.45(5)(a) sufficient to confer jurisdiction upon the Division. The Division further concluded that it did not have jurisdiction under Wis. Admin. Code § HFS I04.0l(5)(a)l,¹¹ which grants jurisdiction "when [an applicant or recipient is] aggrieved by action or inaction of the agency or the department." Pursuant to these findings, the Division dismissed Keup's fair hearing request.

(11) RIGHT TO REQUEST RETURN OF PAYMENTS MADE FOR COVERED SERVICES DURING PERIOD OF RETROACTIVE ELIGIBILITY. If a person has paid all or part of the cost of health care services received and then becomes a recipient of MA benefits with retroactive eligibility for those covered services for which the recipient has previously made payment, then the recipient has the right to notify the certified provider of the retroactive eligibility period. At that time the certified provider shall submit claims to MA for covered services provided to the recipient during the retroactive period. Upon the provider's receipt of the MA payment, the provider shall reimburse the recipient for the lesser of the amount received from MA or the amount paid by recipient or other person, minus any relevant copayment. In no case may the department reimburse the recipient directly.

¶ 8. Keup filed this action against DHFS and the Secretary of DHFS¹² in Ozaukee County Circuit Court, seeking review of the Division's order dismissing her fair hearing request. Keup also pled an independent claim under 42 U.S.C. § 1983, alleging that Wis. Stat. § 49.49(3m), Wis. Admin. Code § HFS 104.01(11), and the Handbook, which require medical assistance providers to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons, were contrary to federal statutes and regulations.

¶ 9. Both Keup and DHFS filed motions for summary judgment. The circuit court granted DHFS' motion for summary judgment with respect to both issues. The circuit court, the Honorable Tom R. Wolfgram presiding, upheld the Division's ruling that it lacked jurisdiction to grant the relief Keup sought. Regarding the 42 U.S.C. § 1983 action, the court concluded that Wis. Stat. § 49.49(3xn), Wis. Admin. Code § HFS 104.01(11), and the Handbook did not violate federal statutes and regulations.

¶ 10. Keup appealed the circuit court's decision. Keup alleged that the Secretary of DHFS implemented Wis. Stat. § 49.49(3m), Wis. Admin. Code § HFS 104.01(11), and the Handbook and, in administering these provisions, acted under color of state law, and deprived her of the rights set forth in federal statutes and regulations.

¶ 11. As stated previously, the court of appeals certified two issues to this court.¹³ The first issue certified is whether, after the State has retroactively compensated a medical assistance provider for nursing home services provided to a private pay patient and the provider has reimbursed the patient in the amount of the medical assistance, the patient has a federally protected right to reimbursement from the provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. The second issue is whether the Division has jurisdiction, under Wis. Stat. § 49.45(5)(a), to grant a private pay patient's request for full reimbursement from a medical assistance service provider.

¶ 12. We now consider whether private pay patients have a federally protected right to reimbursement for the amount paid in excess of the medical assistance reimbursement. This issue involves statutory interpretation, which is a question of law that this court reviews de novo. Hutson v. State Pers. Comm'n, 2003 WI 97, ¶ 31, 263 Wis. 2d 612, 665 N.W.2d 212. Thus, we are not bound by an administrative agency's determination. Id. Nevertheless, we have generally used one of three standards of review, with varying degrees of deference, to review an agency's conclusions of law or statutory interpretation. Id. The three standards of deference this court typically applies to such agency decisions are great weight, due weight, or de novo. Id.

¶ 13. The highest level of deference accorded to an agency decision is great weight. We give an agency decision great weight deference when the following four criteria are met:

" '(1) the agency was charged by the legislature with the duty of administering the statute; (2) [ ] the interpretation of the agency is one of long-standing; (3) [ ] the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) [ ] the agency's interpretation will provide uniformity and consistency in the application of the statute.'"

UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996) (quoting Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)).

¶ 14. Under the great weight standard, an agency's interpretation of a statute will be upheld provided that it is "reasonable and not contrary to the clear meaning of the statute, . . . even if the court finds that another interpretation is more reasonable." Hutson, 263 Wis. 2d 612, ¶ 32; UFE, 201 Wis. 2d at 286-87.

¶ 15. The intermediate level of deference is due weight. Due weight deference is appropriate when the agency has some experience in a particular area, but has not developed the expertise which necessarily places it in a better position than a court to make a judgment regarding the interpretation of a statute. UFE, 201 Wis. 2d at 286. We give the agency deference because the legislature has charged the agency with a statute's enforcement, and not necessarily because of its knowledge or skill in an area. Id. Under the due weight standard, a reviewing court will not overturn a reasonable agency interpretation that comports with the statute's purpose unless there is a more reasonable interpretation available. Id. at 286-87.

¶ 16. The lowest level of deference a reviewing court applies to an agency's decision is de novo review. Under de novo review, the agency's decision in a matter is given absolutely no weight. Hutson, 263 Wis. 2d 612, ¶ 34. A reviewing court considers an agency decision de novo when "the issue before the agency is clearly one of first impression, or when an agency's position on an issue has been so inconsistent so as to provide no real guidance." UFE, 201 Wis. 2d at 285 (citations omitted). De novo review is appropriate in this case because the issue in this case, whether a private pay patient has a federally protected right to reimbursement from the provider for the amount originally paid by the patient in excess of the medical assistance reimbursement, is one of first impression.

¶ 17. When interpreting a statute, this court first looks to the plain meaning of the statute itself. Van-Cleve v. City of Marinette, 2003 WI 2, ¶ 17, 258 Wis. 2d 80, 655 N.W.2d 113. When the statutory language is clear and unambiguous, we may not look beyond the plain words of the statute in question to ascertain its meaning. Id. To determine if a statute is ambiguous, we look to the statutory language itself. Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. Statutory language is given its usual and common meaning, while technical or specialized terms are interpreted according to their unique meanings. Id. If the statute is unambiguous, we must give effect to the words within the statute according to their common meanings. DNR v. Wis. Power & Light Co., 108 Wis. 2d 403, 407, 321 N.W.2d 286 (1982). As a general rule, we do not review extrinsic sources, unless there is ambiguity. If the statutory language is ambiguous, however, we then may use the scope, history, context, and subject matter of the statute in order to ascertain legislative intent. State v. Delaney, 2003 WI 9, ¶ 14, 259 Wis. 2d 77, 658 N.W.2d 416. Statutory language is ambiguous if reasonable persons could disagree regarding its meaning. Id.

¶ 18. Keup asserts that DHFS' policies violate federal statutes and regulations, which are federally protected rights, thus violating 42 U.S.C. § 1983. According to Keup, DHFS violated 42 U.S.C. § l396a(a)(lO)(B),¹⁴ the "uniformity" provision, by providing full medical assistance benefits to some, but not all, retroactively eligible recipients. Keup further asserts that DHFS violated 42 U.S.C. § I396a(a)(34),¹⁵ the "retroactivity" provision, by failing to provide her with retroactive medical assistance. Finally, Keup argues that DHFS violated 42 C.F.R. § 447.15,¹⁶ the "payment in full" provision, as Mequon did not accept DHFS' payment as payment in full and, instead, retained the difference between DHFS' payment and the amount paid by Keup upon her admission to Mequon. Keup states that § 1396a(a)(10)(B), § 1396a(a)(34), and § 447.15 are enforceable under § 1983, as they comport with the standards set forth by the United States Supreme Court's case law.

¶ 19. DHFS asserts that 42 U.S.C. § 1396a(a)(10)(B), 42 U.S.C. § 1396a(a)(34), and 42 C.F.R, § 447.15 do not create federally enforceable rights to be free from out-of-pocket expenses when a private pay patient contracts with a medical assistance service provider. DHFS argues that § 1396a(a)(10)(B), § 1396a(a)(34), and § 447.15 do not unambiguously impose binding obligations on the State to reimburse private pay patients who were found retroactively eligible for medical assistance benefits when the amount paid by the patient is greater than the State's medical assistance benefit amount.

¶ 20. It is necessary for our analysis to discuss when an action appropriately exists under 42 U.S.C. § 1983. A claim may exist under § 1983 when either a constitutional provision or a statutory provision of federal law is violated. Maine v. Thiboutot, 448 U.S. 1, 4, (1980). However, there are two exceptions to this general rule. First, § 1983 may not be used to remedy a statutory violation, if the statute in question does not create an enforceable right under § 1983. Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423, (1987). Second, § 1983 may not be used to remedy a statutory violation if Congress has foreclosed enforcement of the statute in question under § 1983 itself. Id. Thus, if a state deprives a person of a right secured by a federal statute, § 1983 may be used to remedy the statutory violation unless the state can show by an express provision, or present specific evidence from the statute itself, that Congress intended to preclude private enforcement of the right. Id.

¶ 21. Yet, even if a person demonstrates that a federal statute creates an individual right, there exists only a rebuttable presumption that the right is enforceable under 42 U.S.C. § 1983. Blessing v. Freestone, 520 U.S. 329, 341, (1997). In order to support a claim under § 1983, a plaintiff must demonstrate that the statute unambiguously confers a right to such action. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, (2002).

¶ 22. In Blessing, the United States Supreme Court listed three criteria that must be met in order to conclude that a statutory provision gives rise to a federal right. Blessing, 520 U.S. at 340. First, Congress must have intended that the provision in question benefit the plaintiff. Id. Second, the plaintiff must demonstrate that the right allegedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Id. at 340-41. Third, the statutory provision must unambiguously impose a binding obligation on the states. Id. at 341. More specifically, the provision giving rise to the right must be couched in mandatory, rather than precatory,¹⁷ terms. Id. If the text of a statute is precatory, it cannot be read to bind the states to any obligation. Congress' power legitimately to legislate under the spending power is contingent upon the states' knowing and voluntary acceptance of the terms set by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, (1981). If a state is unaware of the conditions imposed by Congress, or if the conditions are not easily discernible, the state cannot be said knowingly to accept Congress' terms. Id. Thus, congressional encouragement of state programs and the imposition of binding obligations on the states are two entirely different matters. Id. at 27.

¶ 23. Keup asserts that each federal provision in question satisfies the Blessing criteria. Keup argues that 42 U.S.C. § 1396a(a)(10)(B) was clearly intended to benefit persons such as her, as medical assistance eligible individuals are the intended beneficiaries of this provision. Keup further states that the right protected by § 1396a(a)(10)(B) is not so vague or amorphous, so as to strain judicial competence in its enforcement, as the provision suggests that all individuals who are eligible to receive medical assistance benefits must receive the same benefits. Keup reasons that § 1396a(a)(10)(B) is mandatory upon the State because of the use of the words "must" within 42 U.S.C. § 1396a(a) and "shall" within § 1396a(a)(10)(B).

¶ 24. Regarding 42 U.S.C. § 1396a(a)(34), Keup asserts that she is clearly an intended beneficiary, as Congress stated that medical assistance eligible individuals are the beneficiaries of the requirement that states must retroactively provide medical assistance benefits. Keup states that § 1396a(a)(34) is neither vague nor ambiguous. Because § 1396a(a)(34) contains the word "must," Keup argues that the language of the provision is clearly mandatory upon the State of Wisconsin.

¶ 25. Finally, Keup asserts that medical assistance eligible individuals are the intended beneficiaries of 42 C.F.R. § 447.15, as they are benefited by not incurring out-of-pocket expenses. Keup states that § 447.15's language is neither vague nor ambiguous. Keup further alleges that § 447.15 is mandatory upon the states, as it contains the word "must" twice.

¶ 26. DHFS argues that 42 U.S.C. § 1396a(a)(10)(B), 42 U.S.C. § 1396a(a)(34), and 42 C.F.R. § 447.15 fail the third Blessing prong, as those sections do not unambiguously impose a binding obligation on the State of Wisconsin to reimburse the private pay patient the amount originally paid by the patient in excess of the medical assistance reimbursement.

¶ 27. We conclude that 42 U.S.C. § 1396a(a)(10)(B), 42 U.S.C. § 1396a(a)(34), and 42 C.F.R. § 447.15 do not unambiguously impose binding obligations on the State, as required by Blessing, to reimburse private pay patients who were found retroactively eligible for medical assistance benefits for the out-of-pocket expenses they incurred before they were eligible for medical assistance. Looking to the plain language of the statutes in question, we conclude that the relevant statutory language is clear and unambiguous and, as a result, must be given its plain meaning.

¶ 28. Keup received the same amount of medical assistance benefits for the month of October as a private pay patient who applies for benefits subsequent to his or her admission and is declared retroactively eligible for benefits. Based on the plain language of 42 U.S.C. § 1396a(a)(10)(B), we cannot say that private pay patients are entitled to a refund of their entire payment in order for their benefits to be deemed compliant with the "uniformity" provision. Further, 42 U.S.C. § 1396a(a)(34) cannot reasonably be read to require the states to retroactively reimburse private pay patients the entire amount paid by them before they applied for and began receiving benefits. Keup received medical assistance benefits retroactively for the same amount as every other medical assistance recipient residing at Mequon for the month of October. Finally, 42 C.F.R. § 447.15 cannot be reasonably construed as unambiguously requiring that medical assistance providers reimburse a private pay patient the difference between the medical assistance benefits and the patient's original amount paid to the medical assistance provider.

¶ 29. We conclude that none of the statutes in question can be said to contain mandatory language that binds the states. To the contrary, it does not appear that Congress ever intended for private pay patients to be reimbursed for out-of-pocket amounts incurred prior to their application, and subsequent eligibility, for medical assistance. Congress did not unambiguously impose an obligation on the states to reimburse private pay patients for such amounts. It is further evident that, given the position DHFS has taken in the claim, it was also unaware of any allegedly binding obligation imposed upon it by Congress. Given the plain language of the statutes in question and their failure to impose any such unambiguous obligations, we must conclude that Congress did not intend to bind the states under § 1396a(a)(10)(B), § 1396a(a)(34), and § 447.15.

¶ 30. Moreover, other federal statutory provisions permit Mequon to retain the amount of Keup's October 1999 payment that exceeded DHFS' reimbursement. At the time she was admitted to Mequon, Keup was neither an applicant nor a recipient of medical assistance benefits. The applicant/recipient distinction is reflected in 42 C.F.R. § 400.203.¹⁸ Under §400.203, Keup was not an applicant at the time of her admission to Mequon, as she did not have an application pending for medical assistance. Moreover, Keup was not a recipient of .medical assistance benefits at the time of her admittance, as she had not yet been determined eligible for medical assistance benefits. Thus, it is clear that Keup entered Mequon as a private pay patient.

¶ 31. Under 42 U.S.C. § 1396r(c)(4)(B)(i),¹⁹ Me-quon may charge private pay patients a rate of its choosing, provided that such patients have adequate notice of the applicable rate. Further, under 42 C.F.R. § 483.12(c)(2),²⁰ medical assistance service providers may specifically charge private pay patients any amount they deem appropriate, provided that the patient is given notice of the charges. Because Keup was a private pay patient at the time of her admittance to Mequon, both she and Mequon had the freedom to contract regarding the charge for Mequon's services for October 1999. The record indicates that Keup did have notice of Mequon's monthly rate, since her prepayment of the October 1999 charges seems to demonstrate rather clearly her awareness of Mequon's rate for its services.

¶ 32. We hold that a private pay patient 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. Persons who are neither medical assistance applicants nor recipients under 42 C.F.R § 400.203 at the time of their admission to a medical assistance provider are private pay patients. As we have discussed, pursuant to 42 U.S.C. § 1396r(c)(4)(B)(i) and 42 C.F.R. § 483.12(c)(2), medical assistance providers may charge private pay patients any rate they deem appropriate, provided that the patient has notice as to the amount of the charge. Here, Keup and Mequon entered into a contract setting the charges for Keup's stay during October 1999. We further hold, based on the same approach to contract, that Wis. Stat. § 49.49(3m), Wis. Admin. Code § HFS 104.01(11), and the Handbook appropriately require medical assistance providers, such as Mequon, to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons.

HH hH I — I

¶ 33. We next consider whether the Division has jurisdiction, under Wis. Stat. § 49.45(5)(a), to grant a private pay patient's request for full reimbursement from a medical assistance provider. As noted in section II, an agency's decision is generally entitled to some deference when the agency has special knowledge or skill in interpreting a statute. However, an agency's decision regarding the scope of its own power is not binding on reviewing courts. Wis. Envtl. Decade v. Pub. Serv. Comm'n, 81 Wis. 2d 344, 351, 260 N.W.2d 712 (1978); Big Foot Country Club v. Wis. Dept. of Revenue, 70 Wis. 2d 871, 875, 235 N.W.2d 696 (1975); Bd. of Regents v. Wis. Pers. Comm'n, 103 Wis. 2d 545, 551, 309 N.W.2d 366 (Ct. App. 1981). Thus, we owe no deference to the agency's decision here, which defines the scope of its own power. Amsoil v. LIRC, 173 Wis. 2d 154, 165, 496 N.W.2d 150 (Ct. App. 1992). We, therefore, review the issue de novo.

¶ 34. Keup asserts that she was entitled to a fair hearing because the amount and sufficiency of her October 1999 medical assistance benefits are in dispute. Keup states that her medical assistance benefits were clearly insufficient, since the difference between what she paid Mequon and what she was reimbursed by medical assistance totaled $1068.86. Keup suggests that, because the medical assistance payment she did receive from the State failed to make her whole, DHFS failed to act promptly with respect to her application, thus satisfying the jurisdictional basis under Wis. Stat. § 49.45(5)(a).

¶ 35. Keup further contends that the Division "acted," as contemplated by Wis. Admin. Code § HFS 104.01(5)(a)l, when it created its statutes and policies, which violate federal law. Keup alleges that DHFS "failed to act" when it did not provide her with medical assistance sufficient to cover her out-of-pocket expenses.

¶ 36. DHFS asserts that the Division correctly decided that it did not have jurisdiction to hear Keup's claim under Wis. Stat. § 49.45(5) (a) or Wis. Admin. Code § HFS 104.01. With respect to § 49.45(5)(a), DHFS states that there is not a jurisdictional basis for the Division to hold a fair hearing, as Keup's claim does not fall under any of the four options listed in the statute. According to DHFS, Keup was not denied medical assistance benefits, her application was acted on promptly, she was reimbursed the correct amount for her October 1999 expenses, and her eligibility for medical assistance benefits was not improperly determined. DHFS contends that Keup's assertion that she received insufficient benefits is unfounded, as she received the same amount of medical assistance benefits provided to every other Mequon resident.

¶ 37. DHFS further agrees with the Division's decision that jurisdiction does not lie under Wis. Admin. Code. § HFS 104.01(5)(a)l. DHFS asserts that the legislature created Wis. Stat. § 49.49(3m)(a)2, and that DHFS' policies merely reflect the legislative policy behind the statute. DHFS further asserts that it is Me-quon, not DHFS, who retained the out-of-pocket expenses Keup incurred. Thus, DHFS argues, it is Mequon's actions that have affected Keup.

¶ 38. Under Wis. Stat. § 49.45(5)(a), the Division has jurisdiction in only the following four circumstances: (1) denial of medical assistance benefits; (2) medical assistance application not acted on promptly; (3) medical assistance payments that were made were not determined properly; or (4) medical assistance eligibility that was not determined properly.

¶ 39. We conclude that the Division correctly decided that it did not have jurisdiction to hear Keup's claim under Wis. Stat. § 49.45(5)(a), because none of the statutory bases for jurisdiction were met. Keup was not denied medical assistance benefits, as she was approved to receive medical assistance benefits in late October retroactive to October 1, 1999. Because Keup both applied for and was approved for medical assistance benefits in October, she may not claim that her medical assistance application was not acted on promptly. Further, Keup's claim cannot be categorized as one in which her medical assistance payments were not determined properly. Keup received the amount of medical assistance benefits to which she was entitled, as she received the prevailing medical assistance rate of $106.26 per day. Simply because Keup incurred out-of-pocket expenses as a private pay patient does not mean that the retroactive benefits provided to her are insufficient. Finally, Keup's claim does not really involve the issue of whether her medical assistance eligibility was determined properly, since DHFS did determine that Keup was eligible to receive medical assistance benefits.

¶ 40. We further conclude that the Division did not have jurisdiction to hear Keup's claim under Wis. Admin. Code § HFS 104.01(5)(a)l. Pursuant to § 104.01(5)(a)l, the Division has jurisdiction "when [an applicant or recipient is] aggrieved by action or inaction of the agency or the department." We agree with the Division's assertion that Keup was not injured by DHFS' action or inaction. DHFS did not violate federal statutes or regulations by failing to reimburse Keup's out-of-pocket expenses. As discussed in Section II of this opinion, Keup does not have a federally protected right to such reimbursement, and the state statutory provisions dealing with medical assistance benefits provide for the appropriate reimbursement amount. Keup contracted with Mequon, not DHFS, to enter the nursing facility, and Mequon retained that portion of Keup's payment that was not reimbursed by the State. Thus, DHFS cannot be required to reimburse Keup. In fact, § 104.01(11) prohibits DHFS from directly reimbursing medical assistance recipients. As Mequon, not DHFS, retained Keup's $1068.86, and Mequon is not an agency or department, the Division did not have jurisdiction to hear Keup's claim under § 104.01(5)(a)l, since she was not "aggrieved by action or inaction of the agency or the department."

IV

¶ 41. We conclude that the circuit court was correct when it granted DHFS' motion for summary judgment. We hold that a private pay patient does not have a federally protected right to reimbursement from the provider for the amount originally paid by the patient in excess of the medical assistance reimbursement. At the time of admittance, Keup was neither a medical assistance applicant nor a recipient, but was a private pay patient. Pursuant to 42 U.S.C. § 1396r(c)(4)(B)(i) and 42 C.F.R. § 483.12(c)(2), medical assistance providers may charge private pay patients any rate such provider deems appropriate, provided that the patient has notice of the amount of the charge. The record reflects that Keup did have such notice. We conclude that Wis. Stat. § 49.49(3m), Wis. Admin. Code § HFS 104.01(11), and the Handbook appropriately require medical assistance providers to refund only the amount paid by the medical assistance program on behalf of retroactively eligible persons. We further hold that the Division did not have jurisdiction to hear Keup's claim, as none of the statutory bases for jurisdiction under Wis. Stat. § 49.45(5)(a) or Wis. Admin. Code § HFS 104.01(5)(a)l were met.

By the Court. — The order of the Circuit Court for Ozaukee County is affirmed.

1 Wisconsin Stat. § (Rule) 809.61 provides in relevant part: "(Bypass by certification of court of appeals or upon motion of supreme court). The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion."

2 Unless otherwise indicated, all references to United States Code are to the 1999 edition.

3 Unless otherwise indicated, all references to Wisconsin Statutes are to the 1999-2000 edition.

4 Unless otherwise indicated, all references to the Code of Federal Regulations are to the 1999 edition.

5 Unless otherwise indicated, all references to the Wisconsin Administrative Code are to the April 1999 edition.

6 While the dissent cites some cases that appear to lend support to the proposition that Medicare coverage is retroactive for only three months before the month in which the application is filed, none of the cases explicitly state that the days that are in the month in which the application is filed, but that are before the actual date of the filing, are not also a part of this retroactive period. The court of appeals' case cited in paragraph 60 of the dissent, St. Paul Ramsey Medical Center v. DHSS, 186 Wis. 2d 37, 519 N.W.2d 681 (Ct. App. 1994), never expressly limited the retroactive period so as not to count the pre-application days of the application month. We use the terms retroactive and retroactivity consistent with a layperson's understanding of such terms. Retroactive refers to the time period prior to the determination that Keup was eligible to be a recipient of medical assistance benefits. The focus of the cases cited by the dissent was on the earliest possible day that coverage would apply, not on whether the pre-application days of the application month were part of the retroactive period. The dissent fails to address the first certified question, but rather leads us into areas not necessary for resolution of this case. The issue we must address is whether private pay patients have a federally protected right to reimbursement for the amount paid in excess of the medical assistance reimbursement.

7 Wisconsin Stat. § 49.45(5) provides in relevant part:

(5) Appeal, (a) Any person whose application for medical assistance is denied or is not acted upon promptly or who believes that the payments made in the person's behalf have not been properly determined or that his or her eligibility has not been properly determined may file an appeal with the department pursuant to par. (b). Review is unavailable if the decision or failure to act arose more than 45 days before submission of the petition for a hearing.

(b) 1. Upon receipt of a timely petition under par. (a) the department shall give the applicant or recipient reasonable notice and opportunity for a fair hearing.

8 Wisconsin Stat. § 49.49(3m) provides in relevant part:

(3m) Prohibited Provider Charges, (a) No provider may knowingly impose upon a recipient charges in addition to payments received for services under ss. 49.45 to 49.47 or knowingly impose direct charges upon a recipient in lieu of obtaining payment under ss. 49.45 to 49.47 except under the following conditions:

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

2. If an applicant is determined to be eligible retroactively under s. 49.46(l)(b) 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 reimbursement under s. 49.45 for covered services or benefits rendered during the retroactive period. Upon receipt of payment, the provider shall reimburse the applicant or other person who has made prior payment to the provider. No provider may be required to reimburse the applicant or other person in excess of the amount reimbursed under s. 49.45.

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.

9 Wisconsin Admin. Code § HFS 104.01(11) provides in relevant part:

10 The relevant portion of the Handbook states as follows: "When the provider receives WMAP payment, the provider must reimburse the recipient either the WMAP payment or the amount paid by the recipient or other person, minus any applicable copayment, whichever is less."

11 Wisconsin Admin. Code § HFS 104.01(5)(a)(l) states in relevant part: "(5) Appeals, (a) Fair hearing. 1. Applicants and recipients have the right to a fair hearing in accordance with procedures set out in ch. HSS 225 and this subsection when aggrieved by action or inaction of the agency or the department."

12 Several people have held the title of Secretary of DHFS since the beginning of this action. For the sake of simplicity, we will use the term "Secretary" throughout this opinion to represent each Secretary of DHFS who has been sued in his or her official capacity during the course of this action.

13 The court of appeals noted that if Keup were to prevail before this court, we would be confronted with another issue. Namely, we would have to decide whether Mequon should be given notice and an opportunity to participate in a Division hearing. We will not address this issue, as it is unnecessary to the holding reached in this case.

14 42 U.S.C. § 1396a(a)(10)(B) provides in relevant part:

(a) Contents

A State plan for medical assistance must—

(10) provide—

(B) that the medical assistance made available to any individual described in subparagraph (A)—

(i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and

(ii) shall not be less in amount, duration, or scope than the medical assistance made available to individuals not described in subparagraph (A).

15 42 U.S.C. § 1396a(a)(34) provides in relevant part:

A State plan for medical assistance must—

(34) provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.

16 42 C.F.R. § 447.15 provides in relevant part: "A State plan must provide that the Medicaid agency must limit participation in the Medicaid program to providers who accept, as payment in full, the amounts paid by the agency plus any deductible, coinsurance or copayment required by the plan to be paid by the individual."

17 In referencing "precatory" terms, we refer to words "requesting, recommending, or expressing a desire for action, but usu(ally) in a nonbinding way." Black's Law Dictionary 1195 (7th ed. 1999).

18 42 C.F.R. § 400.203 provides in relevant part:

As used in connection with the Medicaid program, unless the context indicates otherwise—

Applicant means an individual whose written application for Medicaid has been submitted to the agency determining Medicaid eligibility, but has not received final action. This includes an individual (who need not be alive at the time of application) whose application is submitted through a representative or a person acting responsibly for the individual.

Recipient means an individual who has been determined eligible for Medicaid.

19 42 U.S.C. § 1396r(c)(4)(b)(i) provides in relevant part:

(c) Requirements relating to residents' rights

(4) Equal access to quality care

(B) Construction

(i) Nothing prohibiting any charges for non-medicaid patients

Subparagraph (A) shall not be construed as prohibiting a nursing facility from charging any amount for services furnished, consistent with the notice in paragraph (1)(B) describing such charges.

20 42 C.F.R. § 483.12(c)(2) provides in relevant part: "(c) Equal access to quality care. (2) The facility may charge any amount for services furnished to non-Medicaid residents consistent with the notice requirement in § 483.10(b)(5)(i) and (b)(6) describing the charges."