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In this photo from 2009, Zainabou Cole, left, an independent private duty nurse, takes care of 2-year-old Aubrey Poole, along with Aubrey's mother, Katie Poole, in the Poole's home in Cottage Grove. A Waukesha County judge ruled Sept. 27 that the state overreached in telling some independent private duty nurses to return Medicaid payments.

The state Department of Health Services overreached in seeking to recoup Medicaid payments from dozens of independent private duty nurses who care for severely disabled patients in their homes, a Waukesha County judge has ruled.

The health department exceeded its authority when it asked the nurses to return Medicaid payments because the nurses didn’t fully comply with various rules in documenting the care they provided, Circuit Court Judge Kathryn Foster decided Sept. 27. The cases don’t involve alleged fraud.

The nurses say state auditors became aggressive beginning in 2012, asking them to pay back $7,000 to $142,000 or more each because of paperwork mistakes, such as not providing proof that doctors had ordered vitamin D or Tylenol.

“I will never do this work again,” said Heidi Unke, a nurse from Waterford who cared for a paralyzed man in his home until 2013, when the state said she had to return $58,000.

The state’s demand for repayment led her to get a job at a hospital. Her recoupment case is pending.

“People need nurses in homes,” said Unke, 43, a mother of three. “But I have to protect my family.”

The state, which has until Nov. 11 to appeal the ruling, said auditors conducted proper reviews of the independent nurses, who bill Medicaid directly for their services.

“Clearly, a key component of verification is the creation and maintenance of complete and accurate records,” Christopher Blythe, an assistant attorney general, wrote in the state’s defense of the case. “What constitutes adequate documentation? That can only be answered on a case-by-case basis.”

Elizabeth Goodsitt, a spokeswoman for the health department, said the department’s Office of the Inspector General was created five years ago to improve fraud prevention and “public assistance program integrity.”

“Documentation of medical care is a vital part of patient care and patient safety,” Goodsitt said.

Nearly 2,000 independent nurses in Wisconsin provide in-home care through Medicaid for patients with complex needs, many of whom are on ventilators, said Kathleen Papa, a board member of Wisconsin Professional Homecare Providers, which represents about 350 of the nurses.

It’s not clear how many of the nurses were subject to questionable recoupments. Diane Welsh, an attorney who represented Papa and her association in a lawsuit that resulted in the ruling, said she has worked on behalf of about 20 such nurses and believes at least another 20 or more cases exist.

Among the 10 nurses Welsh currently represents who face recoupment, the state is seeking a total of about $470,000, said Welsh, of the Madison law firm Pines Bach.

Welsh said the state sought repayment for multiple days of full shifts when nurses wrote that they had fed patients according to plans of care instead of specifying times and amounts, and when nurses didn’t sign pre-authorization documents for care even though state rules are contradictory on whether signatures are required.

In other cases, the state said nurses didn’t prove that employer-based health plans wouldn’t cover the care, even though the plans don’t cover such ongoing care, Welsh said.

In at least one case, the state sought thousands of dollars for many entire shifts because a nurse didn’t include a doctor’s prescription for vitamin D, a supplement that can be bought over the counter.

“In the last few years, the nature of the findings has changed and the demand for recoupment has skyrocketed,” Welsh said. “Even those (nurses) who had not yet been audited had the risk of being audited.”

Unke said her $58,000 repayment request stemmed from a misplaced decimal point in recording the dosage of a drug for which the correct dosage was given, and for not specifying that her patient wore shoes to protect his feet, as he did.

Foster determined that the health department is limited to recovering payments when it can’t verify that a service was provided or when the amount claimed is inaccurate or inappropriate.

The judge said requiring nurses to abide by numerous policies contained in various codes, letters and handbooks at the level of a “perfection rule” exceeds the department’s authority.

Papa said many independent nurses left their practices because of the state’s demands to give back money they earned, and that caused hardship for families who depend on the nurses. Papa said that now, with the ruling, she hopes some of the nurses will return.

“I think it will give them some security,” she said. “They should be able to retain their money for services provided and not work in fear that the state will audit them and take back every penny for something minor.”

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David Wahlberg is the health and medicine reporter for the Wisconsin State Journal.