2010 Wyoming Statutes
Title 42 - Welfare
Chapter 4 - Medical Assistance And Services

CHAPTER 4 - MEDICAL ASSISTANCE AND SERVICES

 

ARTICLE 1 - IN GENERAL

 

42-4-101. Short title.

 

This chapter may be cited as the "Wyoming Medical Assistance and Services Act". The program and services provided pursuant to this chapter and Title XIX of the federal Social Security Act may be cited as "Medicaid" or the "Medicaid program".

 

42-4-102. Definitions.

 

(a) As used in this chapter:

 

(i) "Categorically eligible" means any individual in need of medical assistance authorized by the legislature and by Title XIX of the federal Social Security Act to be covered by a state plan for medical assistance and services;

 

(ii) "Medical assistance" means partial or full payment of the reasonable charges assessed by any authorized provider of the services and supplies enumerated under W.S. 42-4-103 and consistent with limitations and reimbursement methodologies established by the department, which are provided on behalf of a qualified recipient, excluding those services and supplies provided by any relative of the recipient or for cosmetic purposes only;

 

(iii) "Qualified" means any categorically eligible individual satisfying eligibility criteria imposed by this chapter, the state plan for medical assistance and services and by rule and regulation of the department;

 

(iv) "Relative" means any person as defined by department rule and regulation;

 

(v) "Resident" means any individual residing in this state, including any individual temporarily absent from this state;

 

(vi) "Institutionalized spouse" means as defined by the Medicare Catastrophic Coverage Act of 1988, P.L. 100-360;

 

(vii) "Department" means the state department of health;

 

(viii) "Direct patient care personnel" means only:

 

(A) Certified nursing assistants;

 

(B) Licensed practical nurses;

 

(C) Registered nurses.

 

(ix) "Skilled nursing home extraordinary care" means skilled nursing home services clearly exceeding standard skilled nursing home services and meeting the criteria established by the department pursuant to W.S. 42-4-104(d);

 

(x) "Intermediate care facility for people with intellectual disability" means "intermediate care facility for the mentally retarded" or "ICFMR" or "ICFs/MR" as those terms are used in federal law and in other laws, rules and regulations.

 

42-4-103. Authorized services and supplies.

 

(a) Services and supplies authorized for medical assistance under this chapter include:

 

(i) Inpatient hospital services;

 

(ii) Outpatient hospital services;

 

(iii) Laboratory and x-ray services;

 

(iv) Skilled nursing home services;

 

(v) The professional services of a licensed and certified physician or osteopathic physician;

 

(vi) Home health services;

 

(vii) Family planning services;

 

(viii) Services provided by an authorized rural health care clinic;

 

(ix) Nurse midwife services;

 

(x) Early and periodic screening, diagnosis and treatment for individuals who have not attained the age of twenty-one (21) years in accordance with Title XIX of the federal Social Security Act;

 

(xi) Premiums, deductibles and coinsurance under federal Medicare Part A, hospital insurance, and Part B, supplemental medical insurance;

 

(xii) The professional services of a licensed optometrist;

 

(xiii) Prescription drugs and oxygen;

 

(xiv) Prosthetic devices which are necessary to replace a missing portion of the body or assist in correcting a dysfunctional portion of the body including training required to implement the use of the device but excluding dental prostheses;

 

(xv) Licensed rehabilitation center services and if specifically prescribed by a licensed physician, outpatient services of a privately operated licensed occupational, speech, audiology or physical therapy center and the professional services of a licensed occupational therapist, licensed speech pathologist, licensed audiologist or a licensed physical therapist;

 

(xvi) Services provided by an institution for mental illnesses;

 

(xvii) Services provided under a federal home and community based waiver;

 

(xviii) The professional services of a licensed dentist which may be legally and alternatively performed by a licensed physician or osteopathic physician and except as provided under paragraph (a)(x) of this section, which are not primarily provided for the care, treatment or replacement of teeth or structures directly supporting teeth;

 

(xix) Services provided by a freestanding ambulatory surgical center;

 

(xx) Services provided by a certified mental health center or clinic and certified mental health services furnished to qualified recipients by a licensed physician or under the direction of a physician if an individual treatment plan is established in writing, approved and periodically reviewed by a licensed physician. The department of health shall by rule and regulation or within the state plan for medical assistance and services, define those services qualifying as mental health services under this paragraph and, pursuant to W.S. 9-2-102, establish standards for certification under this paragraph;

 

(xxi) Services provided by intermediate care facilities;

 

(xxii) Services provided by an intermediate care facility as defined under 42 U.S.C. 1396d(d);

 

(xxiii) Services provided by freestanding end stage renal dialysis clinics or centers;

 

(xxiv) Services provided by advanced practitioners of nursing;

 

(xxv) Hospice care as defined in W.S. 35-2-901(a)(xii) and authorized under 42 U.S.C. 1396a(a)(10)(ii)(VII);

 

(xxvi) Tuberculosis ambulatory care authorized under 42 U.S.C. 1396a(a)(10)(A)(ii)(XII);

 

(xxvii) Targeted case management services, which shall be services which will assist targeted individuals eligible under the state plan in gaining access to needed medical, social, educational and other services;

 

(xxviii) Skilled nursing home extraordinary care in accordance with W.S. 42-4-104(d);

 

(xxix) Bone marrow, kidney and liver transplant services;

 

(xxx) Programs and services provided under the school health program.

 

(b) In addition to other payments authorized under this chapter, the department may provide payments to skilled nursing homes which are providing services covered under this chapter if:

 

(i) The nursing home demonstrates that one hundred percent (100%) of the additional amount received will be expended upon direct patient care personnel salaries and benefits; and

 

(ii) The nursing home agrees to provide sufficient data to the department substantiating compliance with paragraph (i) of this subsection.

 

42-4-104. Powers and duties of department of health.

 

(a) The department of health shall:

 

(i) Administer this chapter;

 

(ii) Develop a state plan for medical assistance and services provided to qualified recipients under this chapter and otherwise providing for the effective administration of this chapter;

 

(iii) Maintain records on the administration of this chapter, report to the federal government as required by federal law and regulation and within limitations imposed under W.S. 42-4-112, may provide for the availability of information on the administration of this chapter to interested persons;

 

(iv) Adopt, amend and rescind rules and regulations on the administration of this chapter following notice and public hearing in accordance with the Wyoming Administrative Procedure Act.

 

(b) In carrying out subsection (a) of this section, the department may:

 

(i) Advise, consult and cooperate with any state agency or political subdivision, any other state, the federal government, private industry and other interested persons;

 

(ii) Negotiate and enter into contract with other public and private agencies and persons as necessary to administer this chapter;

 

(iii) Directly or by contract and through one (1) or more fiscal intermediaries, provide payments to providers of services and supplies for medical assistance authorized by this chapter in the manner and amount provided by this chapter;

 

(iv) Receive funds from any source for purposes of carrying out this chapter;

 

(v) Establish reasonable limits on services and supplies authorized under W.S. 42-4-103;

 

(vi) Conduct pilot projects pursuant to W.S. 42-4-107(c);

 

(vii) Provide for part or all of the services and supplies authorized under W.S. 42-4-103 for some or all categorically eligible individuals through health care insurance or through contracts with networks of health care providers;

 

(viii) Purchase stop gap insurance;

 

(ix) Enter into intergovernmental transfer arrangements with qualifying facilities in which all federal funding received as a result of the intergovernmental transfer arrangements shall be distributed to participating facilities.

 

(c) Subject to limitations imposed under this subsection, the department shall, at least once every five (5) years but not more than once in any three (3) year period, establish a new base period to be used in calculating all skilled nursing homes' medical assistance per diem base rate reimbursable under this chapter, using the most recent cost report information provided to the department. For purposes of medical assistance reimbursable under this chapter, the department shall reimburse each eligible provider of skilled nursing home services the greater of the following amounts:

 

(i) Medical assistance computed on the per diem base rate under the new base period established pursuant to this subsection; or

 

(ii) For the state fiscal year beginning July 1, 2003 and ending June 30, 2004, medical assistance computed on the per diem base rate existing prior to the establishment of the new base period under this subsection.

 

(d) The department shall establish by rule the conditions and requirements for skilled nursing home extraordinary care. The requirements shall include, but are not limited to the following:

 

(i) The care shall be previously authorized by the department for each individual and subject to continual audit by the department;

 

(ii) The cost for the care shall clearly exceed the standard skilled nursing home per diem rate;

 

(iii) The cost shall be excluded from the nursing home's cost report to the department; and

 

(iv) No extraordinary care payment shall be made for equipment owned by the nursing home in providing the care.

 

42-4-105. Repealed by Laws 1991, ch. 221, 3.

 

42-4-106. Application for assistance; determination of eligibility; assignment of benefits; resources and income allowances defined for institutionalized spouse.

 

(a) Any Wyoming resident may apply for medical assistance under this chapter by filing an application with the field office located in the county in which the individual resides. A determination of eligibility for medical assistance shall be based upon the application. Medical assistance shall be provided on behalf of a qualified applicant with reasonable promptness.

 

(b) Upon signing an application for medical assistance under this chapter, an applicant assigns to the department any right to medical support or payment for medical expenses from any other person on his behalf or on behalf of any relative for whom application is made. The assignment is effective upon a determination of eligibility. Application for medical assistance shall contain an explanation of the assignment provided under this subsection.

 

(c) In determining the eligibility of an institutionalized spouse for medical assistance under this chapter, the resources of the noninstitutionalized spouse shall not be considered available to the institutionalized spouse to the extent the amount of his resources does not exceed the maximum authorized by the Medicare Catastrophic Coverage Act of 1988, P.L. 100-360. For purposes of determining the amount of an institutionalized spouse's monthly income to be applied towards payment of institutional care costs, the maximum amount of allowance authorized by the Medicare Catastrophic Coverage Act of 1988, P.L. 100-360 shall be deducted from his monthly income.

 

(d) In any assistance program under this chapter for which income is the criterion or one (1) of the criteria for assistance payments, compensation received for a veteran's service connected disability shall not be counted in determining income if that compensation on an annual basis is not more than the poverty level for the applicant as determined by the federal office of management and budget.

 

42-4-107. Uniform application throughout state; discrimination prohibited; pilot projects authorized.

 

 

(a) This chapter and the state plan for medical assistance and services developed under W.S. 42-4-104(a)(ii) shall be uniformly applied within all political subdivisions of the state.

 

(b) The provision of medical assistance to any applicant or qualified recipient shall not be denied or delayed and the administration of this chapter shall not otherwise discriminate against any applicant or recipient on the basis of race, creed, color, national origin, sex or mental or physical handicap.

 

(c) Notwithstanding any other provision of this act, the department, in providing services and supplies authorized by this act, may conduct pilot projects pertaining to some or all categorically eligible individuals.

 

42-4-108. Administrative hearings.

 

In accordance with the Wyoming Administrative Procedure Act, the department shall provide opportunity for a hearing to any individual denied medical assistance under this chapter or otherwise aggrieved by the administration of this chapter.

 

42-4-109. Renumbered and Repealed.

 

 

 

(a) Renumbered as 42-4-207(a) by Laws 1994, ch. 73, 2.

 

(b) Renumbered as 42-4-207(b) by Laws 1994, ch. 73, 2.

 

(c) Repealed by Laws 1994, ch. 73, 3.

 

(d) Renumbered as 42-4-207(f) by Laws 1994, ch. 73, 2.

 

42-4-110. Charges for inpatient hospital services.

 

A cost deduction, cost sharing or other similar charge shall not be imposed upon any recipient of medical assistance for inpatient hospital services provided on his behalf pursuant to this chapter.

 

42-4-111. Providing or obtaining assistance by misrepresentation; penalties.

 

 

(a) No person shall knowingly make a false statement or misrepresentation or knowingly fail to disclose a material fact in providing medical assistance under this chapter.

 

(b) A person violating subsection (a) of this section is guilty of:

 

(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of medical assistance is five hundred dollars ($500.00) or more; or

 

(ii) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of medical assistance is less than five hundred dollars ($500.00).

 

(c) No person shall knowingly make a false statement or misrepresentation or knowingly fail to disclose a material fact in obtaining medical assistance under this chapter. A person violating this subsection is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

 

(d) Each violation of subsection (a) of this section is a separate offense.

 

42-4-112. Confidentiality of records; penalty for disclosure; authorized disclosure.

 

 

(a) Any application, information and record obtained, compiled and maintained for an applicant or qualified recipient of medical assistance under this chapter is confidential and shall not be disclosed or used for any purpose other than the administration of this chapter.

 

(b) A violation of subsection (a) of this section is a misdemeanor.

 

(c) Notwithstanding subsection (a) of this section and any other provision of law to the contrary, and for purposes of ensuring any medical assistance under this act does not duplicate any benefit payment made by another state agency, insurer, group health plan, third party administrator, health maintenance organization or similar entity, the department may upon request of the state agency, insurer or similar entity, disclose information limited to a recipient's name, social security number, amount of payment, charge for services, date of services and services rendered relating to medical assistance payments made under this act. A state agency, insurer, group health plan, health maintenance organization or similar entity shall, upon request of the department, disclose the same limited information to the department. Information received under this subsection shall be used only for the purpose authorized by this subsection and shall otherwise be confidential and the state agency, insurer, group health plan, health maintenance organization or other recipient entity shall be subject to the confidentiality restrictions imposed by law upon information received to the extent required of the department. Any violation of this subsection is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

 

(d) Prior to receipt of any payment under this act, the department shall require an applicant for or recipient of assistance under this act to sign a waiver authorizing the release of information limited to assistance payment information to state agencies, insurers, group health plans, third party administrators, health maintenance organizations or similar entities for purposes specified by subsection (c) of this section.

 

42-4-113. Eligibility criteria; irrevocable burial trusts.

 

 

(a) The department shall not consider as assets available to an applicant seeking medical assistance the corpus of a Medicaid qualifying trust:

 

(i) That is irrevocable;

 

(ii) In which the trustee and trustor retain no discretion with respect to distributions to the applicant;

 

(iii) In which the income from the trust shall be transferred to the applicant at least annually;

 

(iv) In which the trust corpus shall not exceed five thousand dollars ($5,000.00); and

 

(v) In which the trust corpus is specifically and irrevocably designated, assigned, or pledged for payment of the applicant's burial expenses.

 

(b) If any of the trust corpus remains after payment of burial expenses, that remainder shall be transferred to the department to be used in the medical assistance program.

 

42-4-114. Cooperative agreements authorized.

 

The department may enter into a cooperative agreement and may contract with private attorneys to provide legal services and legal representation necessary to assist the department in enforcing its right to reimbursement created under article 2 of this chapter. The department and its contract attorneys shall have an unconditional right to intervene in any action by or on behalf of a recipient or former recipient against any third party who may be legally liable to reimburse any medical assistance provided under the Wyoming Medicaid program. If no action has been brought, the department and its contract attorneys may initiate and prosecute an independent action on behalf of the department against any third party that may be liable to the person to whom the care was furnished. If the department elects not to contract with private attorneys to provide legal services and representation under this section, the attorney general, or an appropriate county attorney, shall provide the legal services and representation.

 

42-4-115. Work incentives improvement option; purchase of services; eligibility criteria; definition.

 

(a) The department may amend the state plan for medical assistance and services developed under W.S. 42-4-104(a)(ii) to allow individuals with countable income not to exceed three hundred percent (300%) of the supplemental security income level to receive services authorized under W.S. 42-4-103(a), provided that:

 

(i) Repealed by Laws 2002, Ch. 31, 2.

 

(ii) Repealed By Laws 2002, Ch. 31, 2.

 

(iii) The individual is eligible to buy into the Wyoming Medical Assistance and Services Act under the federal Ticket to Work and Work Incentive Improvement Act of 1999 and subsequent similar federal enactments and the federal government is not restricted from paying its proportionate share of the individual's eligible medical expenses;

 

(iv) Provided that the individual's earnings do not exceed the level specified in section 201(a)(3) of the Federal Ticket to Work and Work Incentive Improvement Act of 1999; and

 

(v) The individual pays to the department a premium of seven and one-half percent (7.5%) of his total gross earnings from work and seven and one-half percent (7.5%) of his unearned income in excess of six hundred dollars ($600.00) per year, provided that:

 

(A) The total paid in premiums under this section does not exceed the yearly premium as calculated pursuant to W.S. 42-4-116; and

 

(B) The individual is not liable for more than the full premium calculated pursuant to W.S. 42-4-116.

 

(b) If the federal government does not allow a state plan amendment containing the expense limitations provided in paragraphs (a)(i) and (ii) of this section or provisions with similar fiscal effects, the state plan amendment authorized by this section shall not be implemented without specific legislative authorization.

 

(c) With respect to the premium received pursuant to subsection (a) of this section, the department shall deduct and forward to the federal government any amount owed under federal regulations. Any overpaid premium shall be refunded to the individual and the balance shall be deposited in the general fund. The sum of all amounts deposited under this section shall be reported in the biennial budget submissions to the joint appropriations interim committee as premium earned to offset the expenses of the program.

 

(d) Notwithstanding W.S. 37-2-302, any person earning more than one hundred eighty-five percent (185%) of the federal poverty level and receiving benefits under the Medical Assistance and Services Act pursuant to this section shall not thereby be eligible for assistance under the telephone assistance program pursuant to W.S. 37-2-301 through 37-2-306.

 

(e) Repealed by Laws 2002, Ch. 31, 2.

 

(f) Repealed By Laws 2002, Ch. 31, 2.

 

42-4-116. Premium calculation.

 

(a) The calculation of premium for services under W.S. 42-4-115 shall be as follows:

 

(i) Determine the total expenses of the Medicaid program for the most recent state fiscal year and the total number of clients in the Medicaid program served in that period;

 

(ii) Deduct from the totals in paragraph (i) of this subsection the clients over the age of sixty-five (65) years and the expenses associated with those clients;

 

(iii) Divide the resulting expenses calculated pursuant to paragraph (ii) of this subsection by the clients remaining after the deduction pursuant to paragraph (ii) of this subsection. The result is the basic annual premium;

 

(iv) Add to the basic premium a risk factor of fifty percent (50%) of the basic premium to recover additional costs incurred by the population eligible to be served pursuant to W.S. 42-4-115; and

 

(v) The premium shall be the sum of the basic annual premium calculated pursuant to paragraph (iii) of this subsection and the risk factor calculated pursuant to paragraph (iv) of this subsection.

 

42-4-117. End stage renal dialysis program; rulemaking; funding.

 

(a) Effective July 1, 2001, the department shall expand coverage for services authorized under W.S. 42-4-103(a)(xxiii) for qualified individuals in need of end stage renal dialysis to the extent funding is available.

 

(b) The department shall by rule and regulation establish reasonable limits on services and supplies authorized under this section, including establishing eligibility criteria for receipt of services. In establishing eligibility criteria, the department shall consider financial ability of the individual or his family to contribute to the services, severity of the illness, the critical need for the services and the ability of the program to meet the needs of the individual.

 

42-4-118. Prescription drug assistance program created; eligibility criteria; benefits provided; coverage of medications.

 

(a) There is created a prescription drug assistance program to assist residents of the state. The program shall be a state funded program to provide prescription drug assistance, in addition to the services provided under the Wyoming Medical Assistance and Services Act. Effective July 1, 2002, the prescription drug assistance program shall replace the minimum medical program. Eligibility for assistance under the program created by this section shall not constitute an entitlement and services shall be provided under this section only to the extent funds are available.

 

(b) Residents of the state may apply for the prescription drug assistance program in the manner provided in W.S. 42-4-106. Upon a determination of eligibility, the applicant remains eligible for assistance under the prescription drug assistance program as provided in this section. If a recipient ceases to be a resident of the state, his eligibility under the program shall terminate. The department shall by rule and regulation establish income eligibility guidelines no later than July 1 of each year based on the federal poverty levels in effect on January 1 of that calendar year. Persons with family income of one hundred percent (100%) of the federal poverty level or less shall be eligible under this section. The rules shall take into consideration family size up to four (4) individuals. Eligibility for families consisting of more than four (4) individuals shall be determined on the basis of the income of a family of four (4) individuals. Persons eligible for prescription drug assistance under other state or federal programs, except the state high risk health insurance pool, shall be ineligible for assistance under the prescription drug assistance program.

 

(c) Except as provided by this subsection, an eligibility determination made under subsection (b) of this section shall be valid for one (1) year. A recipient whose monthly income changes by more than one-third (1/3), shall report the change in income to the department. The recipient is entitled to a redetermination if his income has declined and may, at the option of the department, be subject to a redetermination if his income has increased.

 

(d) A recipient shall be required to pay a copayment per prescription of ten dollars ($10.00) for generic drugs and twenty-five dollars ($25.00) for brand name drugs.

 

(e) The department shall project costs of the program created by this section at least quarterly and compare those projected costs against the funds appropriated for the program. If the funds available to the program are insufficient to meet the projected costs of the program, the department shall take action to prevent the program from incurring costs beyond available funds, including taking any of the following actions:

 

(i) Imposing a moratorium on new enrollments in the program;

 

(ii) Reducing the gross family income eligibility level specified in subsection (b) of this section;

 

(iii) Imposing higher prescription drug copayments not to exceed twenty-five dollars ($25.00) per prescription;

 

(iv) Eliminating specified drugs from eligibility under the program;

 

(v) Carrying claims for payment into the next biennium if the amount of claims are less than one twenty-fourth (1/24) of the appropriation that has been enacted for the next biennium.

 

42-4-119. Pharmacy plus program; eligibility criteria; rulemaking; termination of program.

 

(a) The department may apply for a demonstration waiver under section 1115 of the federal Social Security Act to allow individuals with income or assets in excess of limits generally established in the state plan to receive services under a pharmacy plus program provided that:

 

(i) The individual is a beneficiary under the federal Medicare program who has not been determined to be eligible for full Medicaid benefits under the state plan;

 

(ii) The total family income of the individual does not exceed one hundred seventy-five percent (175%) of the federal poverty level in effect on April 1 of that calendar year;

 

(iii) The total family net assets of the individual do not exceed three hundred fifty thousand dollars ($350,000.00); and

 

(iv) An individual determined eligible to receive services under this section shall not be eligible for other services under W.S. 42-4-103, unless the individual otherwise qualifies for the services. Eligibility for assistance under the program created by this section shall not constitute an entitlement and services shall be provided under this section only to the extent funds are available.

 

(b) The department is directed to negotiate the terms and conditions of the waiver with the United States secretary of health and human services as necessary to implement this section.

 

(c) Upon approval of the final terms and conditions by the United States secretary of health and human services and the legislature of the waiver applied for under this section, the department shall implement the pharmacy plus program to assist eligible individuals with payment and management of prescription drug costs. In implementing the pharmacy plus program, the department may use private sector benefit management approaches, including pharmacy benefit managers, preferred drug lists, prior authorization, pharmacist consultation, provider education, disease state management and variable enrollee cost sharing in the form of annual or monthly premium assessments, per prescription copayment requirements, coinsurance, deductibles and coverage limits. The department shall establish through rules and regulations variable enrollee cost sharing provisions under this subsection on a graduated basis, taking into consideration the differing income levels of enrollees and the funding available to the program.

 

(d) If the federal Medicare program is amended to provide pharmaceutical benefits for recipients under that program, the pharmacy plus program authorized under this section shall terminate upon implementation of the federal Medicare pharmaceutical benefits program.

 

(e) The department shall project costs of the program created by this section at least quarterly and compare those projected costs against the funds appropriated for the program. If the funds available to the program are insufficient to meet the projected costs of the program, the department shall take action to prevent the program from incurring costs beyond available funds, including taking any of the actions specified in W.S. 42-4-118(e).

 

42-4-120. Contracts for waiver services; authority of department; emergency case services; cost based payments.

 

(a) The department is authorized to enter into contracts with providers of services under a federal home and community based waiver and to enforce the provisions of this section.

 

(b) The department shall adopt and enforce reasonable rules and regulations for the certification of home and community based waiver services, and shall include minimum certification standards for each category of service provider.

 

(c) Before entering into a contract with a provider of services under this section, the department shall ascertain that the provider is in compliance with applicable regulations regarding health care providers adopted pursuant to W.S. 35-2-908, with all applicable professional licensing statutes and regulations and with regulations adopted pursuant to subsection (b) of this section.

 

(d) In addition to other remedies, in the event of a chronic failure to provide services or services that fail to meet the applicable standard of care for the profession involved or a continuing condition creating serious detriment to the health, safety or welfare of recipients of home and community based waiver services, the department may impose a civil penalty upon the provider. For each day of continuing violation, the civil penalty shall not exceed one thousand dollars ($1,000.00) or one percent (1%) of the amount paid to the provider during the previous twelve (12) months, whichever is greater, and any administrative penalty assessed under this section shall be paid over to the state treasurer who shall remit the monies to the county treasurer to the credit of the public school fund of the county in which the violation occurred, except as otherwise provided by federal law for Medicaid certified nursing facilities.

 

(e) The department shall have the same authority to place conditions upon a provider, to impose a monitor or to revoke a certification issued under this section in the manner described in W.S. 35-2-905.

 

(f) The department, not later than April 1, 2008, shall promulgate rules under which an emergency case shall be determined to exist with respect to eligibility for federal home and community based waiver services for persons with developmental disabilities or adult brain injury under this act. Upon a finding by the department that an emergency exists under this subsection, the department in accordance with its rules and regulations shall make necessary expenditures for the recipient from the emergency contingency account established for that purpose. Expenditures from the emergency contingency account shall be limited to those services necessary to provide authorized customary services as provided by home and community-based waivers for persons with developmental disabilities or adult brain injury in response to the emergency situation until the emergency no longer exists or eligibility under this act can be determined and any necessary services provided from nonemergency funding sources. The developmental disabilities division of the department of health shall submit an accounting to the joint appropriations interim committee and the joint labor, health and social services interim committee by October 1 of each year regarding total expenditures and the number of persons provided emergency services pursuant to this subsection.

 

(g) The department shall establish by rule and regulation a cost based reimbursement system to pay providers of services and supplies under home and community based waiver programs for persons with developmental disabilities or acquired brain injury. The payment system shall:

 

(i) Use information provided to the department, including but not limited to:

 

(A) Provider cost data;

 

(B) Provider claims data;

 

(C) Participant needs assessment data;

 

(D) Other relevant regional and national data.

 

(ii) Establish a new base period to be used in calculating reimbursement rates to providers for subsequent budget periods at least once every four (4) years but not more than once in any two (2) year period. When a new base period is established, the department shall submit a biennial or supplemental budget request to adjust provider reimbursement rates based on the most current base period;

 

(iii) Be developed following consultation with Wyoming developmental disability and acquired brain injury waiver program service providers, developmental disability waiver program clients and their families and an expert in cost based waiver program payment systems, which the department is authorized to retain by contract following competitive bidding;

 

(iv) Be implemented for services and supplies provided under individual budget amounts established on and after July 1, 2008;

 

(v) Be contingent upon approval by the center for Medicare and Medicaid services of the United States department of health and human services;

 

(vi) Require service and supply providers to provide actual cost of service and supply data to the department and to submit to reasonable audits of the submitted data, if requested by the department.

 

42-4-121. Program of all-inclusive care for the elderly.

 

(a) The department, as an optional services program of the Medicaid program, may develop and implement a program of all-inclusive care for the elderly (PACE) in accordance with section 4802 of the Balanced Budget Act of 1997, P.L. 105-33, as amended, and 42 C.F.R. part 460.

 

(b) The department may contract with approved PACE organizations to provide, in the manner and to the extent authorized by federal law, comprehensive, community based acute and long term care services for older Medicaid eligible participants who are at least fifty-five (55) years old, living in a PACE service area, certified by the department as eligible for long term care facility placement and who elect to participate in the PACE program. Services provided through a PACE organization shall include all necessary medical and related care required by the PACE participant, including but not limited to physician and other health care provider visits, regular check ups, prescription drugs, rehabilitation services, home and personal care services, medically necessary transportation, hospitalization and skilled nursing facility services.

 

(c) The objective of the PACE program is to provide prepaid, capitated, quality comprehensive health care services that are designed to:

 

(i) Enhance the quality of life and autonomy for frail, older adults;

 

(ii) Maximize dignity of, and respect for, older adults;

 

(iii) Enable frail, older adults to live in the community as long as medically and socially feasible;

 

(iv) Preserve and support the older adult's family unit.

 

(d) The department shall adopt rules as necessary to implement this section. In adopting rules, the department shall:

 

(i) Provide application procedures for organizations seeking to become a PACE program provider;

 

(ii) Establish the capitation rate for Medicaid participants electing to participate in the PACE program instead of receiving Medicaid services on a fee for service basis. The capitation rate shall be no less than ninety percent (90%) of the fee for service equivalent cost, including the department's cost of administration, that the department estimates would be payable for all services covered under the PACE organization contract if all of those services were to be provided on a fee for service basis;

 

(iii) Provide application procedures, including acknowledgment of informed consent, for Medicaid participants electing to participate in the PACE program in lieu of receiving fee for service Medicaid benefits.

 

(e) PACE provider organizations shall be public or private organizations providing or having the capacity to provide, as determined by the department, comprehensive health care services on a risk based capitated basis to PACE patients.

 

(f) To demonstrate capacity as required by subsection (e) of this section, the department shall consider evidence such as an organization's insurance, reinsurance, cash reserves, letters of credit, guarantees of companies affiliated with the organization or a combination of those arrangements.

 

(g) PACE organizations shall assume responsibility for all costs generated by PACE program participants, and shall create and maintain a risk reserve fund that will cover any cost overages for any participant. A PACE organization is responsible for the full financial risk that the cost of services required by a program participant might exceed the Medicaid capitated fee for that participant.

 

(h) The department shall develop and implement a coordinated plan to promote the PACE program among prospective Medicaid long term care patients in the service areas of approved PACE organizations.

 

(j) As soon as practicable after July 1, 2010, the department shall submit to the federal centers for Medicare and Medicaid services an amendment to the state Medicaid plan authorizing the state to implement the program of all-inclusive care for the elderly pursuant to this section. The department shall not enter into a contract with any PACE provider organization until all necessary state plan amendments or waivers are approved. An additional amendment to the state Medicaid plan shall not be required each time the department enters into a contract with a new PACE provider organization.

 

(k) Nothing in this section shall be construed to require a PACE organization to hold a certificate of authority as an insurer or a health maintenance organization under title 26 of the Wyoming statutes.

 

(m) The department shall provide a report to the joint labor, health and social services interim committee no later than October 1, 2011, and annually thereafter, with respect to the program established by this section, including the number of PACE organizations authorized, the administrative structure of the program, the number of Medicaid eligible persons receiving services under the program and the historical annual actual and next biennium projected savings to the Medicaid program from the PACE program. As used in this section "PACE" means a program of all-inclusive care for the elderly meeting the requirements of this section.

 

(n) No PACE organization shall withhold any necessary medical or nonmedical services to any PACE participant in order to increase the organization's profit from the Medicaid capitated payment.

 

(o) PACE participants may disenroll from the PACE program at any time. A PACE organization shall promptly report the identity of all disenrolled participants to the department.

 

ARTICLE 2 - MEDICAID BENEFIT RECOVERY

 

42-4-201. Action against third party; notice; subrogation.

 

(a) If a person who is or becomes an applicant or recipient for medical assistance under this chapter receives an injury under circumstances creating a legal liability in some third party, the applicant or recipient shall not be deprived of any medical assistance for which he is entitled under this chapter. He may also pursue his remedy at law against the third party. If the applicant or recipient recovers from the third party in any manner, including judgment, compromise, settlement or release, the state is entitled to be reimbursed for all payments made, or to be made, on behalf of the applicant or recipient under this chapter.

 

(b) The department shall be served by certified mail, return receipt requested, with a copy of the complaint within seven (7) days of its filing in any suit initiated pursuant to subsection (a) of this section. Any attorney who knowingly fails to serve the complaint on the department shall be reported to the state board of professional responsibility for the Wyoming state bar. The department shall be notified in writing by certified mail return receipt requested of any judgment, compromise, settlement or release entered into by any person who has been an applicant for or recipient of medical assistance under this chapter after the date of injury. If there is a settlement, compromise or release entered into by the parties the attorney general representing the director shall be made a party in all negotiations for settlement, compromise or release. The department, for purposes of facilitating compromise and settlement, may in a proper case authorize acceptance by the state of less than the state's claim for reimbursement under this section for all current and future assistance under this chapter. Any reimbursement right created pursuant to this article shall remain in effect until the state is paid the amount authorized under this section. In addition the person paying the settlement remains liable to the state's reimbursement right unless the state through the attorney general signs the release prior to payment of an agreed settlement.

 

(c) If the injury causes death of the recipient, the rights and remedies in this section inure to, and the obligations are binding upon the personal representative of the deceased recipient for the benefit of his dependents.

 

(d) Repealed By Laws 2002, Ch. 39, 2.

 

(e) If, after notice is provided in accordance with this section, the department states in writing that it will neither file an independent action nor intervene in an existing action as allowed by W.S. 42-4-114, the department's reimbursement right shall be reduced by not more than thirty-three percent (33%) for attorney's fees together with the amount of its proportionate share of costs. If the department does not provide this written statement, its right to reimbursement shall not be reduced by any share of the recipient's attorney's fees or costs.

 

42-4-202. Third party liability; authority; enforcement; notice; costs.

 

(a) When the department provides, pays for or becomes liable for medical care, it shall have a lien for the cost of the medical assistance provided upon any and all causes of action which accrue to the person to whom the care was furnished, or to the person's legal representatives, as a result of the injuries which necessitated the medical care.

 

(b) The department may perfect and enforce its lien by following the procedures set forth in W.S. 29-1-301 and 29-1-302, and its verified lien statement shall be filed with the appropriate clerk in the county of financial responsibility. The verified lien statement shall contain the following:

 

NOTE: Effective 7/1/2011, this section will read as follows:

 

(b) The department may perfect and enforce its lien by following the procedures set forth in W.S. 29-1-312 and 29-1-313, and its verified lien statement shall be filed with the appropriate clerk in the county of financial responsibility. The verified lien statement shall contain the following:

 

(i) The name and address of the person to whom medical care was furnished;

 

(ii) The date of injury;

 

(iii) The name and address of the vendor or vendors furnishing medical care;

 

(iv) The dates of the service;

 

(v) The amount claimed to be due for the care;

 

(vi) To the best of the department's knowledge, the names and addresses of all persons, firms or corporations claimed to be liable for damages arising from injuries.

 

(c) This section shall not affect the priority of any attorney's lien. The department shall not be subject to any limitations period referred to in title 1 or 29 of the Wyoming statutes to file its verified lien statement.

 

(d) The department shall be given notice of monetary claims against a person, firm or corporation that may be liable to pay part or all of the cost of medical care when the department has paid or become liable for the cost of that care. Notice shall be given as follows:

 

(i) Applicants for medical assistance shall notify the state or local agency of any possible claims when they submit the application. Recipients of medical assistance shall notify the department of any possible claims when those claims arise. A recipient's noncooperation in providing information to the department to assist in pursuing liable third parties shall result in denial or termination of eligibility per federal law;

 

(ii) An enrolled medicaid provider shall notify the department when the person has reason to believe that a third party may be liable for payment of the cost of medical care. If the person providing medical care services fails to notify the department when a third party is liable for payment of the cost of medical care and the department, because of lack of notice from the provider, does not receive reimbursement for the cost of medical care, the department may adjust the value of those claims from future payments to that provider;

 

(iii) An attorney representing an applicant for or a recipient of medical assistance in a claim upon which the department may have a reimbursement right under this chapter shall notify the department of its potential claim for reimbursement before filing a claim, commencing an action, or negotiating a settlement. Any attorney who fails to notify the department of any settlement or fails to ensure the state is reimbursed, to the extent of its reimbursement right, from the proceeds of any settlement or judgment under this section shall be reported to the state board of professional responsibility for the Wyoming state bar. If the attorney knowingly failed to report and insure reimbursement to the state, the department shall have a claim for relief against the attorney for the amount of the reimbursement right under this chapter;

 

(iv) Insurers shall not disburse any settlement payment for a personal injury claim made to a recipient of medical assistance under this act until seven (7) working days after the department has received written notice from the insurer of the proposed settlement or judgment and failed to provide a written objection to the insurer. Failure to provide notice under this paragraph shall commence the tolling of any applicable statute of limitations.

 

(e) Notice given to the local agency is not sufficient to meet the requirements of paragraphs (d)(ii) through (iv) of this section.

 

(f) Repealed By Laws 1999, ch. 125, 2.

 

42-4-203. Settlement between recipient and tortfeasor or insurer; lien not discharged; exceptions.

 

(a) No settlement made by and between the applicant or recipient and the tortfeasor or insurer shall discharge the right to reimbursement created pursuant to this article, against any money due or owing by such tortfeasor or insurer to the applicant or recipient or relieve the tortfeasor or insurer from liability by reason of the right to reimbursement unless the settlement also provides for the payment and discharge of the right to reimbursement and the attorney general has signed a written release as provided by W.S. 42-4-201(b).

 

(i) Repealed By Laws 2002, Ch. 39, 2.

 

(ii) Repealed By Laws 2002, Ch. 39, 2.

 

42-4-204. Department subrogated to right of recovery of applicant or recipient; utilization of personal health insurance; insurance coverage of recipients.

 

(a) The department shall be subrogated to any right of recovery or indemnification arising from an accident or occurrence resulting in expenditures by the department, which an applicant or recipient of medical assistance or any legally liable party has against an insurer, health insurer, self-insured plan, group health plan, service benefit plan, managed care organization, pharmacy benefit manager or other party that is, by statute, contract or agreement, legally responsible for payment of a claim for health care items or services, including but not limited to hospitalization, pharmaceutical services, physician services, nursing services and other medical services, not to exceed the amount expended by the department for the care and treatment of the applicant or recipient. An applicant or recipient or legally liable party, by the act of applying for, or recipient receiving medical assistance, shall be deemed to have made a subrogation assignment and an assignment of claim for benefits to the department. The department shall inform an applicant of the assignments at the time of application. In addition, any entitlements from a contractual agreement with an applicant or recipient or legally liable party, a state or federal program or a claim or action against any responsible third party for medical services, not to exceed the amount expended by the department, shall be so assigned. The entitlements shall be directly reimbursable to the department by third party payors. The department may assign its right to subrogation or its entitlement to benefits to a designee or a health care provider participating in the medicaid program and providing services to an applicant or recipient, in order to assist the provider in obtaining payment for the services. A provider that has received an assignment from the department shall notify the insurer of the assignment upon rendering of services to the applicant or recipient. Failure to so notify the insurer shall render the provider ineligible for payment from the department. Once the insurer has been billed or notified the provider may not request payment through the medicaid program until a payment, denial or other explanation of benefits, not including mistakes in billing, is received from the insurer. The provider shall notify the department of any request by the applicant or recipient or his legally liable party or representative for billing information.

 

(b) When a recipient of medical assistance has access to personal health insurance through his employer, payment or part payment of the premium for the insurance may be made by the department when deemed appropriate by the director of the department.

 

(c) No individual accident policy, group accident policy, health policy, accident and health policy, medical expense policy or medical service plan contract, delivered, issued for delivery or renewed in this state on or after July 1, 1995, and no self-insured plan, managed care policy or plan, pharmacy benefit management plan or policy or other policy or plan issued by any other party that is, by statute, contract or agreement legally responsible for payment of a claim for items or services, delivered, issued for delivery or renewed in this state on or after July 1, 2007, shall contain any provision denying or limiting insurance benefits because services are rendered to an insured who is eligible for or who received medical assistance under this chapter. This section shall supersede any statutory provision to the contrary. No such policy, plan or contract, when enrolling an individual, shall take into account the individual's eligibility for medical assistance under this chapter. This subsection applies to all such policies, plans and contracts issued by any person including, but not limited to:

 

(i) An insurer;

 

(ii) A group health plan as defined in section 607(1) of the Employee Retirement Income Security Act of 1974;

 

(iii) A managed care organization, pharmacy benefit manager or other party that is, by statute, contract or agreement, legally responsible for payment of a claim for a health care item or service;

 

(iv) An entity offering a service benefit plan;

 

(v) A self-insured plan.

 

(d) Medicaid shall not pay for any services provided under this chapter if the individual eligible for medical assistance has coverage for the services under an accident or health insurance policy or other source.

 

(e) In addition to the separate requirements set forth in W.S. 42-4-205, all health insurers, including all self-insured plans, group health plans as defined in section 607(1) of the Employee Retirement Income Security Act of 1974, service benefit plans, managed care organizations, pharmacy benefit managers, or other parties that are, by statute, contract, or agreement, legally responsible for payment of a claim for a health care item or service, shall agree, as a condition of doing business in the state of Wyoming, to:

 

(i) Provide, with respect to the individuals who are eligible for or are provided medical assistance by the department of health, information to determine the period during which the individual or the individuals' spouses or dependents may be or may have been covered by a health insurer and the nature of the coverage provided, including the name and address of the insurer and identifying number of the plan, in a manner prescribed by the secretary;

 

(ii) Accept the state's right of recovery and the assignment to the state of any right of an individual or other entity to payment from another party for an item or service for which payment has been made under the state plan;

 

(iii) Respond to any inquiry by the state regarding a claim for payment for any health care item or service that is submitted not later than three (3) years after the date of the provision of such health care item or service; and

 

(iv) Agree not to deny a claim submitted by the state solely on the basis of the date of submission of the claim, the type or format of the claim form or a failure to present proper documentation at the point of sale that is the basis of the claim, if:

 

(A) The claim is submitted by the state within the three (3) year period beginning on the date on which the item or service was furnished; and

 

(B) Any action by the state to enforce its rights with respect to the claim is commenced within six (6) years of the state's submission of the claim.

 

42-4-205. Insurance policy termination notification requirement.

 

 

(a) With respect to cases for which there is an assignment in effect pursuant to W.S. 42-4-204:

 

(i) The department, upon receipt of the health coverage information, shall notify the obligor's insuring entity that the department shall be notified thirty (30) days prior to discontinuance of coverage;

 

(ii) Entities providing health insurance as defined in title 26 and health maintenance organizations and prepaid health clinics as defined in W.S. 26-34-102 shall upon request by the department, provide a list of insureds residing in the state and any records and information as necessary to accomplish the purpose of this section, unless the requirement results in an unreasonable burden;

 

(iii) The department and the insurance commissioner appointed pursuant to W.S. 26-2-102 shall enter into a cooperative agreement for requesting and obtaining information necessary to effect the purpose and objectives of this section;

 

(iv) The department shall only request information from the entity providing health insurance necessary to determine whether health insurance, as defined pursuant to title 26 or those health services provided pursuant to W.S. 26-34-102, are discontinued;

 

(v) The department, in consultation with the department of insurance, shall promulgate rules for the development and administration of the cooperative agreement. The rules shall include the following:

 

(A) A method for identifying those entities subject to furnishing information under the cooperative agreement;

 

(B) A method for furnishing requested information; and

 

(C) Procedures for requesting exemption from the cooperative agreement based on an unreasonable burden to the reporting entity.

 

(vi) If the department notifies the insurer that it has made payments to the provider, payment of benefits or notices of denial issued by the insurer shall be made directly to the department.

 

(b) Upon the department receiving notice from the obligor's insuring entity that the coverage is discontinued due to cancellation for any reasons, the department shall retain that information for use in enforcing any court order requiring the obligor to provide health insurance to the individuals stated in the court order.

 

42-4-206. Claims against estates.

 

(a) If an individual receives any medical assistance pursuant to this chapter, upon the individual's death, if single, or upon the death of the survivor of a married couple, either of whom received medical assistance, the total amount paid for medical assistance rendered for the individual or the spouse shall be filed by the department as a claim against the estate of the individual or the estate of the surviving spouse in the court having jurisdiction to probate the estate. A claim shall be filed if medical assistance was rendered for either person under one (1) of the following circumstances:

 

(i) The person was fifty-five (55) years of age or older when he received medical assistance; or

 

(ii) The person was an inpatient in a nursing facility, intermediate care facility for people with intellectual disability or other medical institution when he received medical assistance.

 

(b) The claim shall be considered an expense of the last illness of the decedent. Any statute of limitations which attempts to limit the department to recover for medical assistance provided pursuant to this chapter shall not apply to any claim made under this section for reimbursement for the medical assistance.

 

(c) The claim shall include only the total amount of medical assistance rendered after the individual attains fifty-five (55) years of age or during a period of institutionalization as described in paragraph (a)(ii) of this section, and shall not include interest. A claim for medical assistance rendered for the predeceased spouse, against the estate of a surviving spouse who did not receive medical assistance, is limited to the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage.

 

(d) If a decedent who was single, or who was the surviving spouse of a married couple, is survived by a child who has not attained twenty-one (21) years of age or is blind or permanently and totally disabled as defined by 42 U.S.C. 1382c, no claim shall be filed against the estate.

 

(e) Repealed By Laws 2002, Ch. 39, 2.

 

(f) The department of family services shall establish procedures, in accordance with standards specified by the secretary of health and human services, under which the department shall waive the application of this section if application would work an undue hardship on the basis of criteria established by the secretary.

 

(g) As used in this section:

 

(i) "Asset" means as defined under W.S. 42-2-401(a)(i);

 

(ii) "Estate" shall include all real and personal property and other assets included within the individual's estate, as defined for purposes of this state's probate law, and includes any other real and personal property and other assets in which the individual had any legal title or interest at the time of death to the extent of that interest, including such assets conveyed to a survivor, heir or assign of the deceased individual through joint tenancy, tenancy in common, survivorship life estate, living trust or other arrangement.

 

42-4-207. Recovery of incorrect payments; recovery of correct payments; liens.

 

(a) The department may through appropriate action recover any incorrect payment of medical assistance under this chapter on behalf of a recipient and may adjust any subsequent payment by an amount equal to the incorrect payment. Any recovery shall be prorated to the federal government in proportion to the amount it contributed for medical assistance rendered.

 

(b) In addition to subsection (a) of this section and subject to a court order for recovery, the department may file a lien upon all real and personal property of the recipient for the incorrect payment of medical assistance on his behalf.

 

(c) The department may file a pre-death lien upon real property of an individual for medical assistance correctly paid under this chapter to an individual:

 

(i) Who is an inpatient in a nursing facility, intermediate care facility for people with intellectual disability, or other medical institution; and

 

(ii) With respect to whom the department determines, after notice and opportunity for a hearing, cannot reasonably be expected to be discharged from the medical institution and to return home.

 

(d) No lien may be imposed under subsection (c) of this section on an individual's home if any of the following persons are lawfully residing in the home:

 

(i) The spouse of the individual;

 

(ii) The individual's child who is under age twenty-one (21), or is blind or disabled as defined in 42 U.S.C. 1382c; or

 

(iii) A sibling of the individual, who has an equity interest in the home and who was residing in the home for a period of at least one (1) year immediately before the date of the individual's admission to the medical institution.

 

(e) No lien imposed under subsection (c) of this section shall be subject to recovery if any of the following persons are lawfully residing in the home on a continuous basis since the date of the individual's admission to the facility or institution:

 

(i) A sibling of the individual who was residing in the individual's home for a period of at least one (1) year immediately before the date of the individual's admission to the facility or institution;

 

(ii) A child of the individual who was residing in the individual's home for a period of at least two (2) years immediately before the date of the individual's admission to the facility or institution, and who establishes by a preponderance of the evidence that he provided care to the individual which permitted the individual to reside at home rather than in a facility or institution.

 

(f) Any lien imposed with respect to an individual pursuant to subsection (c) of this section shall dissolve upon that individual's discharge from the medical institution and return home.

 

(g) Nothing in this section shall require an applicant for medical assistance under this chapter to enter into agreement for a lien upon his real and personal property for the payment of medical assistance on his behalf.

 

(h) Upon sale of the property on which a lien has been imposed pursuant to subsection (c) or (j) of this section, the department shall seek recovery of the amount stated in its lien. Transfers of real or personal property on or after the look-back dates defined in 42 U.S.C. 1396p by recipients of medical assistance under this chapter, or their spouses, without adequate consideration are voidable and may be set aside by an action in district court.

 

(j) The department may file a lien against the property of any estate, as defined in W.S. 42-4-206(g), of a deceased recipient for the amount of medical assistance provided while the recipient was fifty-five (55) years of age or older or while the recipient was an inpatient in a nursing facility, intermediate care facility for people with intellectual disability or other medical institution. The department shall perfect this lien by filing a notice in the county in which the real property exists. The department may file an amended lien prior to the entry of the final order closing the estate.

 

42-4-208. Recovery for cost of health care.

 

 

(a) The department, to the extent necessary to reimburse its costs, shall be entitled to recover from any parent who:

 

(i) Is required by court or administrative order to provide coverage of the cost of health services to a child eligible for medical assistance under this act; and

 

(ii) Has received payment from a third party for the costs of such services but has not used the payments to reimburse either the other parent or guardian of the child or the provider of the services.

 

(b) The department shall be entitled to enforce any judgment entered pursuant to this section by garnishment or any other available statutory remedy.

 

(c) Claims for current and past due child support shall take priority over claims made under this section.