Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-22

Administrative Sanction Procedures and Regulations

Notice of Proposed Rule

(Amendment)

DAR File No.: 34995
Filed: 06/30/2011 09:17:04 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to implement by rule the Department policy to exclude providers from the Medicaid program who act inappropriately or violate certain aspects of the law.

Summary of the rule or change:

This change implements the Department policy to exclude providers from the Medicaid program who act inappropriately or violate certain aspects of the law. It also makes other minor corrections.

State statutory or constitutional authorization for this rule:

• Section 26-18-3
• Section 26-1-5

Anticipated cost or savings to:

the state budget:

There is no measurable impact to the state budget because instances of provider misconduct are rare. In most cases, other providers can fill in for providers who are excluded or terminated from the Medicaid program.

local governments:

There is no impact to local governments because they do not fund or provide Medicaid services for Medicaid clients.

small businesses:

There is no measurable impact to small businesses because instances of provider misconduct are rare. In most cases, other providers can fill in for providers who are excluded or terminated from the Medicaid program. Providers who are excluded from the Medicaid program will see a loss of revenue, but it is impossible to estimate how many clients they may lose and for which services.

persons other than small businesses, businesses, or local governmental entities:

There is no measurable impact to Medicaid providers because instances of provider misconduct are rare. In most cases, other providers can fill in for providers who are excluded or terminated from the Medicaid program. Providers who are excluded from the Medicaid program will see a loss of revenue, but it is impossible to estimate how many clients they may lose and for which services. The Department does not anticipate any out-of-pocket expenses to Medicaid clients due to a lack of access to services.

Compliance costs for affected persons:

A provider who is excluded or terminated from the Medicaid program will see a loss of revenue, but it is impossible to estimate how many clients the provider may lose and for which services. The Department does not anticipate any out-of-pocket expenses to a single Medicaid client due to a lack of access to services.

Comments by the department head on the fiscal impact the rule may have on businesses:

Protecting Medicaid recipients from providers who have violated their charge as professionals is good public policy and will only have an impact on providers that commit these acts.

W. David Patton, PhD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at cdevashrayee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/15/2011

This rule may become effective on:

08/22/2011

Authorized by:

David Patton, Executive Director

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-22. Administrative Sanction Procedures and Regulations.

R414-22-1. Introduction and Authority.

(1) In order to effectively and efficiently operate the Medicaid program, the Department may implement administrative sanctions against providers who abuse or improperly apply the benefit program.

(2) This rule is authorized by Sections 26-1-5[,] and Subsection 26-18-3[(2) and (4)](7).

 

R414-22-2. Definitions.

The definitions in Rule R414-1 apply to this rule. In addition:

(1) "Abuse" means provider practices that are inconsistent with sound fiscal, business, or medical practices, and result in reimbursement for services that are either not medically necessary or that fail to meet professionally recognized standards for health care.

(2) "Conviction" or "Convicted" means a criminal conviction entered by a federal or state court for fraud involving Medicare or Medicaid regardless of whether an appeal from that judgment is pending.

(3) "Fiscal agent" means an organization that processes and pays provider claims on behalf of the Department.

(4) "Fraud" means intentional deception or misrepresentation made by a person that results in some unauthorized Medicaid benefit to himself or some other person. It includes any act that constitutes fraud under applicable state law.

(5) "Offense" means any of the grounds for sanctioning set forth in Section R414-22-[3]4[ below].

(6) "Person" means any natural person, company, firm, association, corporation or other legal entity.

(7) "Practitioner" means a physician or other individual licensed under state law to practice his profession.

(8) "Provider" means an individual or other entity who has been approved by the Department to provide services to Medicaid clients, and who has signed a provider [contract]agreement with the Department.

(9) "Provider Sanction Committee" means the committee within the Department of Health that determines whether a Medicaid provider with a conviction or other sanction identified in Subsection R414-22-3 (3), (4), or (5) may enroll or remain in the Medicaid program. This committee consists of a designee of the Executive Director of the Department of Health, a designee of the Office of Inspector General of Medicaid Services, and the bureau director over provider enrollment.

([9]10) "Suspension" means that Medicaid items or services provided by a provider under suspension shall not be reimbursed by the Department.

(1[0]1) "Termination from participation" means termination of the existing provider [contract]agreement.

 

R414-22-3. Grounds for Excluding Providers.

(1) Upon learning of the crime, misdemeanor or misconduct, the Department shall exclude a prospective Medicaid provider who:

(a) has a current restriction, suspension, or probation from the Division of Professional and Occupational Licensing (DOPL) for sexual misconduct with a child, minor, or non-consenting adult under Title 76 of the Criminal Code; or

(b) is serving any term, completing any associated probation or parole, or still making complete court imposed restitution for a felony conviction involving:

(i) a sexual crime;

(ii) a controlled substance; or

(iii) health care fraud

(c) has a current restriction on their license from DOPL to treat only a certain age group or gender or DOPL requires another medical professional to supervise and restrict the provider's activity; or

(d) is serving any term, completing any associated probation or parole, or still making complete court imposed restitution for a misdemeanor conviction that involves a controlled substance.

(2) Upon learning of the crime, misdemeanor or misconduct, the Department shall terminate a current Medicaid provider for any violation stated in Subsection R414-22-3(1).

(3) Subject to approval of the Provider Sanction Committee, the Department may enroll a provider who has served any term, completed any associated probation or parole, or made complete court-imposed restitution for a prior felony conviction involving:

(a) a sexual crime;

(b) a controlled substance; or

(c) health care fraud.

(4) Subject to approval of the Provider Sanction Committee, the Department may enroll a provider or allow a provider to remain in the Medicaid program if the provider has a previous restriction, suspension, or probation from DOPL for sexual misconduct with a child, minor, or non-consenting adult under Title 76 of the Criminal Code

(5) Subject to approval of the Provider Sanction Committee, the Department may allow a provider to remain in the Medicaid program when the Office of Inspector General of Medicaid Services has recommended the program consider termination of the provider.

(6) The Provider Sanction Committee may consider the need to maintain client access to services when making a determination related to convictions or sanctions described in Subsection R414-22(3), (4), or (5).

 

R414-22-[3]4. Grounds for Sanctioning Providers.

The Department may impose sanctions against a provider[s] who:

(1) knowingly present, or cause to be presented, to Medicaid any false or fraudulent claim, other than simple billing errors, for services or merchandise; or

(2) knowingly submits, or cause to be submitted, false information for the purpose of obtaining greater Medicaid reimbursement than the provider is legally entitled to; or

(3) knowingly submits, or cause to be submitted, for Medicaid reimbursement any claims on behalf of a provider who has been terminated or suspended from the Medicaid program, unless the claims for that provider were included for services or supplies provided prior to his suspension or termination from the Medicaid program; or

(4) knowingly submits, or cause to be submitted, false information for the purpose of meeting Medicaid prior authorization requirements; or

(5) fails to keep records that are necessary to substantiate services provided to Medicaid recipients; or

(6) fails to disclose or make available to the Department, its authorized agents, or the State Fraud Control Unit, records or services provided to Medicaid recipients or records of payments made for those services; or

(7) fails to provide services to Medicaid recipients in accordance with accepted medical community standards as adjudged by either a body of peers or appropriate state regulatory agencies; or

(8) breaches the terms of the Medicaid provider agreement; or

(9) fail to comply with the terms of the provider certification on the Medicaid claim form; or

(10) over[-]utilizes the Medicaid program by inducing, providing, or otherwise causing a Medicaid recipient to receive services[(s)] or merchandise that is not medically necessary; or

(11) rebates or accepts a fee or portion of a fee or charge for a Medicaid recipient referral; or

(12) violates [the Utah State Medical Assistance Act, Section 26-18-2 UCA,]the provisions of the Medical Assistance Act under Title 26, Chapter 18, or any other applicable rule or regulation; or

(13) knowingly submits a false or fraudulent application for Medicaid provider status; or

(14) violates any laws or regulations governing the conduct of health care occupations, professions, or regulated industries; or

(15) [are]is convicted of a criminal offense relating to performance as a Medicaid provider; or

(16) conducts a negligent practice resulting in death or injury to a patient[s] as determined in a judicial proceeding; or

(17) fails to comply with standards required by state or federal laws and regulations for continued participation in the Medicaid program; or

(18) conducts a documented practice of charging Medicaid recipients for Medicaid covered services over and above amounts paid by the Department unless there is a written agreement signed by the recipient that such charges will be paid by the recipient; or

(19) refuses to execute a new Medicaid provider agreement when doing so is necessary to ensure compliance with state or federal law or regulations; or

(20) fail s to correct any deficiencies listed in a Statement of Deficiencies and Plan of Correction, [HCFA]CMS [f]Form 2567, in provider operations within a specific time frame agreed to by the Department and the provider[(s)], or pursuant to a court or formal administrative hearing decision; or

(21) [are]is suspended or terminated from participation in Medicare for failure to comply with the laws and regulation governing that program; or

(22) fail s to obtain or maintain all licenses required by state or federal law to legally provide Medicaid services; or

(23) fails to repay or make arrangements for repayment of any identified Medicaid overpayments, or otherwise erroneous payments, as required by the State Plan, court order, or formal administrative hearing decision.

 

R414-22-[4]5. Sanctions.

Sanctions for violating any subsection of Section R414-22-[3]4 are:

(1) Termination from participation in the Medicaid program; or

(2) Suspension of participation in the Medicaid program.

 

R414-22-[5]6. Imposition of Sanction.

(1) Before the Department decides to impose a sanction, it shall notify the provider, in writing, of:

(a) the findings of any investigation by the Department, its agents, or the Bureau of Medicaid Fraud; and

(b) any possible sanctions the Department may impose.

(2) Providers shall have 30 days after the notice date to respond in writing to the findings of any investigation. A written request for additional time of less than 30 days may be granted by the Department for good cause shown.

(3) The Department has the discretion to impose sanctions after receiving the provider's input.

(4) The Department may consider the following factors when determining which sanction to impose:

(a) seriousness of offense[(s)];

(b) extent of offense[(s)];

(c) history of prior violations of Medicaid or Medicare law;

(d) prior imposition of sanctions by the Department;

(e) extent of prior notice, education, or warning given to the provider by the Department pertaining to the offense[(s)] for which the provider is being considered for sanction;

(f) adequacy of assurances by the provider that the provider will comply prospectively with Medicaid requirements related to the offense[(s)];

(g) whether a lesser sanction will be sufficient to remedy the problem;

(h) sanctions imposed by [L]licensing [B]boards or peer review groups and professional health care associations pertaining to the offense[s]; and

(i) suspension or termination from participation in another governmental medical program for failure to comply with the laws and regulations governing these programs.

(5) When the Department decides to impose a sanction, it shall notify the provider at least ten calendar days before the sanction's effective date.

 

R414-22-[6]7. Scope of Sanction.

(1) Once a provider is suspended or terminated, the Department shall only pay claims for services provided prior to the suspension or termination.

(2) The Department may suspend or terminate any individual, clinic, group, corporation, or other similar organization, who allows a sanctioned provider to bill Medicaid under the clinic, group, corporation or organization provider number.

 

R414-22-[7]8. Notice of Sanction.

(1) When a provider has been sanctioned for a period exceeding 15 days, the Department may notify the applicable professional society, board of registration or licensor, and federal or state agencies.

(2) Notice includes:

(a) the findings made; and

(b) the sanctions imposed.

(3) The Department shall timely notify any appropriate Medicaid recipient[s] of the provider's suspension or termination from the Medicaid program.

 

R414-22-9. Monitoring.

(1) If the Department is aware that an applicant or provider has had an action against them related to the following issues, the applicant will be subject to additional monitoring. The issues include:

(a) claims for excessive charges;

(b) providing unnecessary services;

(c) failing to disclose required information; or

(d) a misdemeanor conviction that involves health care fraud.

(2) The Department will refer applicants or providers described in Subsection R414-22-9(1) to the Office of Inspector General of Medicaid Services to be monitored for at least six months.

 

R414-22-[8]10. Provider Application.

The Department shall review any Medicaid provider agreement application for previous sanctions before approving the provider agreement.

 

KEY: [m]Medicaid

Date of Enactment or Last Substantive Amendment: [March 19, 1998]2011

Notice of Continuation: December 12, 2007

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3(7)