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)