Decision Reached in Kathleen Papa v. DHS

On July 31st, the Court of Appeals handed down its decision in Kathleen Papa v. DHS. The case involved detailed reporting requirements imposed on in-home care providers for Medicade reimbursement. The court sided with the Wisconsin Department of Health and Human Services (DHS) and held Topic #66 of the Medicaid Provider Handbook did not count as a rule since it lacked force of law, one of the elements of a rule.

The holding applies quite narrowly. Writing for the two person majority, Judge Hagedorn stated:

We focus our attention, however, on Topic #66. While PHP has styled and briefed this as a broader attack on DHS’s recoupment policies generally, this case stems from a more narrow and specific root—an effort to brand Topic #66 as an invalid administrative rule under WIS. STAT. § 227.40(1).

(emphasis added)

Dissenting, Judge Reilly wrote:

The majority errs in this case by turning Act 21 on its head to hold that Topic #66 has to be an administrative rule in order for Act 21 to apply. I agree with the majority that Topic #66 is not an administrative rule, but such a conclusion leads one to also conclude that Act 21 therefore prohibits DHS from utilizing Topic #66 to take Papa’s property.

(internal citation omitted)