Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-22

Administrative Sanction Procedures and Regulations

Notice of Proposed Rule

(Amendment)

DAR File No.: 36710
Filed: 08/31/2012 02:40:42 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to grant discretionary authority to the Department and to the Provider Sanction Committee to sanction providers for current and past misconduct.

Summary of the rule or change:

This amendment grants discretionary authority to the Department and to the Provider Sanction Committee to sanction providers for current and past misconduct.

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 neither fund nor provide Medicaid services to Medicaid recipients.

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 recipients 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 recipients they may lose and for which services. The Department does not anticipate any out-of-pocket expenses to Medicaid recipients 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 recipients the provider may lose and for which services. The Department does not anticipate any out-of-pocket expenses to a single Medicaid recipient due to a lack of access to services.

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

Encouraging all qualified providers to enroll and participate in the Medicaid program does not include allowing sanctioned providers to participate when the health and safety of Medicaid recipients might be compromised. This rule supports giving state officials the tools to screen out providers with sanctions and any negative impact on such a provider is justified.

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
CANNON HEALTH BLDG
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:

10/15/2012

This rule may become effective on:

10/22/2012

Authorized by:

David Patton, Executive Director

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

R414-22. Administrative Sanction Procedures and Regulations.

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) or another state's equivalent agency 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 or another state's equivalent agency 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(3), (4), or (5).

(7) The Provider Sanction Committee may use any grounds described in Section R414-22-4 to exclude providers from Medicaid.

(8) The Department may exclude a prospective Medicaid provider who has a current restriction, suspension, or probation from DOPL or another state's equivalent agency.

(9) The Provider Sanction Committee may exclude a prospective provider for significant misconduct or substantial evidence of misconduct that creates a substantial risk of harm to the Medicaid program.

(10) If after review, the Provider Sanction Committee finds there is prior misconduct outlined in Section R414-22-3 or Section R414-22-4, the committee retains discretionary authority to not renew a provider agreement, to not reinstate a provider agreement, and to not enroll a provider until the provider has completed all requirements deemed necessary by the committee.

 

R414-22-4. Grounds for Sanctioning Providers.

The Department may impose sanctions against a provider 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) overutilizes the Medicaid program by inducing, providing, or otherwise causing a Medicaid recipient to receive services 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 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) 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 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) fails to correct any deficiencies listed in a Statement of Deficiencies and Plan of Correction, CMS Form 2567, in provider operations within a specific time frame agreed to by the Department and the provider, or pursuant to a court or formal administrative hearing decision; or

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

(22) fails 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.

(24) The Department may sanction a Medicaid provider who has a current restriction, suspension, or probation from DOPL or another state's equivalent agency.

(25) The Provider Sanction Committee may sanction a provider for significant misconduct or substantial evidence of misconduct that creates a substantial risk of harm to the Medicaid program.

(26) If after review, the Provider Sanction Committee finds there is prior misconduct outlined in Section R414-22-3 or Section R414-22-4, the committee retains discretionary authority to not renew a provider agreement, to not reinstate a provider agreement, and to not enroll a provider until the provider has completed all requirements deemed necessary by the committee.

 

R414-22-6. 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]Provider Sanction Committee has the discretion to impose sanctions after receiving the provider's input.

(4) The [Department]Provider Sanction Committee may consider the following factors when determining which sanction to impose:

(a) seriousness of offense;

(b) extent of offense;

(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 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;

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

(h) sanctions imposed by licensing boards or peer review groups and professional health care associations pertaining to the offense; 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.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: [August 22, 2011]2012

Notice of Continuation: December 12, 2007

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