407-120-0360 Consequences of Non-Compliance and Provider Sanctions (1) There are two classes of provider sanctions, mandatory and discretionary, that may be imposed for non-compliance with the provider enrollment agreement. (2) Except as otherwise provided, the Department shall impose provider sanctions at the direction of the assistant director of the Department's division whose budget includes payment for the services involved. (3) Mandatory Sanctions. The Department shall impose mandatory sanctions and suspend the provider from participation in the Department's programs: (a) When a provider has been convicted (as that term is defined in 42 CFR part 1001.2) of a felony or misdemeanor related to a crime, or violation of Title XVIII, XIX, or XX of the Social Security Act or related state laws, or other disqualifying criminal conviction pursuant to program-specific rules or contract; (b) When a provider is excluded from participation in federal or state health care programs by the Office of the Inspector General of DHHS or from the Medicare (Title XVIII) program of the Social Security Act as determined by the Secretary of DHHS. The provider shall be excluded and suspended from participation with the Department for the duration of exclusion or suspension from the Medicare program or by the Office of the Inspector General; or (c) If the provider fails to disclose ownership or control information required under 42 CFR part 455.104 that is required to be reported at the time the provider submits a provider enrollment form or when there is a material change in the information that must be reported, or information related to business transactions required to be provided under 42 CFR part 455.105 upon request of federal or state authorities. (4) Discretionary Sanctions. When the Department determines the provider fails to meet one or more of the Department's requirements governing participation in its programs the Department may impose discretionary sanctions. Conditions that may result in a discretionary sanction include, but are not limited to when a provider has: (a) Been convicted of fraud related to any federal, state, or locally financed health care program or committed fraud, received kickbacks, or committed other acts that are subject to criminal or civil penalties under the Medicare or Medicaid statutes; (b) Been convicted of interfering with the investigation of health care fraud; (c) Been convicted of unlawfully manufacturing, distributing, prescribing, or dispensing a controlled substance or other potentially disqualifying crime, as determined under program-specific rules or contracts; (d) By actions of any state licensing authority for reasons relating to the provider's professional competence, professional conduct, or financial integrity either: (A) Had his or her professional license suspended or revoked, or otherwise lost such license; or (B) Surrendered his or her license while a formal disciplinary proceeding is pending before the relevant licensing authority. (e) Been suspended or excluded from participation in any federal or state program for reasons related to professional competence, professional performance, or other reason; (f) Billed excessive charges including but not limited to charging in excess of the usual charge, furnished items or services in excess of the client's needs or in excess of those services ordered by a provider, or in excess of generally accepted standards or quality that fail to meet professionally recognized standards; (g) Failed to furnish necessary covered services as required by law or contract with the Department if the failure has adversely affected or has a substantial likelihood of adversely affecting the client; (h) Failed to disclose required ownership information; (i) Failed to supply requested information on subcontractors and suppliers of goods or services; (j) Failed to supply requested payment information; (k) Failed to grant access or to furnish as requested, records, or grant access to facilities upon request of the Department or the MFCU conducting their regulatory or statutory functions; (l) In the case of a hospital, failed to take corrective action as required by the Department, based on information supplied by the QIO to prevent or correct inappropriate admissions or practice patterns, within the time specified by the Department; (m) In the case of a licensed facility, failed to take corrective action under the license as required by the Department within the time specified by the Department; (n) Defaulted on repayment of federal or state government scholarship obligations or loans in connection with the provider's health profession education; (A) Providers must have made a reasonable effort to secure payment; (B) The Department must take into account access of beneficiaries to services; and (C) Shall not exclude a community's sole physician or source of essential specialized services; (o) Repeatedly submitted a claim with required data missing or incorrect: (A) When the missing or incorrect data has allowed the provider to: (i) Obtain greater payment than is appropriate; (ii) Circumvent prior authorization requirements; (iii) Charge more than the provider's usual charge to the general public; (iv) Receive payments for services provided to individuals who were not eligible; or (v) Establish multiple claims using procedure codes that overstate or misrepresent the level, amount, or type of services or items provided. (B) Does not comply with the requirements of OAR 410-120-1280. (p) Failed to develop, maintain, and retain, in accordance with relevant rules and standards, adequate clinical or other records that document the client's eligibility and coverage, authorization (if required by program-specific rules or contracts), appropriateness, nature, and extent of the services or items provided; (q) Failed to develop, maintain, and retain in accordance with relevant rules and standards, adequate financial records that document charges incurred by a client and payments received from any source; (r) Failed to develop, maintain, and retain adequate financial or other records that support information submitted on a cost report; (s) Failed to follow generally accepted accounting principles or accounting standards or cost principles required by federal or state laws, rules, or regulations; (t) Submitted claims or written orders contrary to generally accepted standards of professional practice; (u) Submitted claims for services that exceed the requested or agreed upon amount by the OHP client, the client representative, or requested by another qualified provider; (v) Breached the terms of the provider contract or agreement; (w) Failed to comply with the terms of the provider certifications on the claim form; (x) Rebated or accepted a fee or portion of a fee for a client referral; or collected a portion of a service fee from the client and billed the Department for the same service; (y) Submitted false or fraudulent information when applying for a Department-assigned provider number, or failed to disclose information requested on the provider enrollment form; (z) Failed to correct deficiencies in operations after receiving written notice of the deficiencies from the Department; (aa) Submitted any claim for payment for which the Department has already made payment or any other source unless the amount of the payment from the other source is clearly identified; (bb) Threatened, intimidated, or harassed clients, client representatives, or client relatives in an attempt to influence payment rates or affect the outcome of disputes between the provider and the Department; (cc) Failed to properly account for a client's personal incidental funds including but not limited to using a client's personal incidental funds for payment of services which are included in a medical facility's all-inclusive rates; (dd) Provided or billed for services provided by ineligible or unsupervised staff; (ee) Participated in collusion that resulted in an inappropriate money flow between the parties involved; (ff) Refused or failed to repay, in accordance with an accepted schedule, an overpayment established by the Department; (gg) Failed to report to Department payments received from any other source after the Department has made payment for the service; or (hh) Collected or made repeated attempts to collect payment from clients for services covered by the Department, under OAR 410-120-1280. (5) A provider who has been excluded, suspended, or terminated from participation in a federal or state medical program, such as Medicare or Medicaid, or whose license to practice has been suspended or revoked by a state licensing board, must not submit claims for payment, either personally or through claims submitted by any billing agent or service, billing provider or other provider, for any services or supplies provided under the medical assistance programs, except those services or supplies provided prior to the date of exclusion, suspension or termination. (6) Providers must not submit claims for payment to the Department for any services or supplies provided by an individual or provider entity that has been excluded, suspended, or terminated from participation in a federal or state medical program, such as Medicare or Medicaid, or whose license to practice has been suspended or revoked by a state licensing board, except for those services or supplies provided prior to the date of exclusion, suspension or termination. (7) When the provisions of sections (5) or (6) are violated, the Department may suspend or terminate the billing provider or any provider who is responsible for the violation. (8) Sanction Types and Conditions. (a) A mandatory sanction imposed by the Department pursuant to section (3) may result in any of the following: (A) The provider shall either be terminated or suspended from participation in the Department's programs. No payments of Title XIX, Title XXI or other federal or state funds shall be made for services provided after the date of termination. Termination is permanent unless: (i) The exceptions cited in 42CFR part 1001.221 are met; or (ii) Otherwise stated by the Department at the time of termination. (B) No payments of Title XIX, Title XXI, or other federal or state funds shall be made for services provided during the suspension. The provider number shall be reactivated automatically after the suspension period has elapsed if the conditions that caused the suspension have been resolved. The minimum duration of a suspension shall be determined by the DHHS Secretary, under the provisions of 42 CFR parts 420, 455, 1001, or 1002. The Department may suspend a provider from participation in the medical assistance programs longer than the minimum suspension determined by the DHHS secretary. (b) The Department may impose the following discretionary sanctions on a provider pursuant to OAR 410-120-1400(4): (A) The provider may be terminated from participation in the Department's programs. No payments of Title XIX, Title XXI or other federal or state funds shall be made for services provided after the date of termination. Termination is permanent unless: (i) The exceptions cited in 42 CFR part 1001.221 are met; or (ii) Otherwise stated by the Department at the time of termination. (B) The provider may be suspended from participation in the Department's programs for a specified length of time, or until specified conditions for reinstatement are met and approved by the Department. No payments of Title XIX, Title XXI, or other federal or state funds shall be made for services provided during the suspension. The provider number shall be reactivated automatically after the suspension period has elapsed if the conditions that caused the suspension have been resolved. (C) The Department may withhold payments to a provider; (D) The provider may be required to attend provider education sessions at the expense of the sanctioned provider; (E) The Department may require that payment for certain services are made only after the Department has reviewed documentation supporting the services; (F) The Department may require repayment of amounts paid or provide for reduction of any amount otherwise due the provider; and (G) Any other sanctions reasonably designed to remedy or compel future compliances with federal, state, or Department regulations. (c) The Department shall consider the following factors in determining the sanction to be imposed. Factors include but are not limited to: (A) Seriousness of the offense; (B) Extent of violations by the provider; (C) History of prior violations by the provider; (D) Prior imposition of sanctions; (E) Prior provider education; (F) Provider willingness to comply with program rules; (G) Actions taken or recommended by licensing boards or a QIO; (H) Adverse impact on the availability of program-specific or contract covered services or the health of clients living in the provider's service area; and (I) Potential financial sanctions related to the non-compliance may be imposed in an amount that is reasonable in light of the anticipated or actual harm caused by the non-compliance, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. (d) When a provider fails to meet one or more of the requirements identified in OAR 407-120-0300 through 407-120-0400, the Department, in its sole discretion, may immediately suspend the provider's Department assigned billing number and any electronic system access code to prevent public harm or inappropriate expenditure of public funds. (A) The provider subject to immediate suspension is entitled to a contested case hearing pursuant to ORS 183 to determine whether the provider's Department assigned number and electronic system access code may be revoked; and (B) The notice requirements described in section (5) of this rule do not preclude immediate suspension, in the Department's sole discretion, to prevent public harm or inappropriate expenditure of public funds. Suspension may be invoked immediately while the notice and contested case hearing rights are exercised. (e) If the Department sanctions a provider, the Department shall notify the provider by certified mail or personal delivery service of the intent to sanction. The notice of immediate or proposed sanction shall identify: (A) The factual basis used to determine the alleged deficiencies and a reference to the particular sections of the statutes and rules involved; (B) Explanation of actions expected of the provider; (C) Explanation of the Department's intended action; (D) The provider's right to dispute the Department's allegations and submit evidence to support the provider's position; (E) The provider's right to appeal the Department's proposed actions pursuant to ORS 183; (F) A statement of the authority and jurisdiction under which the appeal may be requested and description of the procedure and time to request an appeal; and (G) A statement indicating whether and under what circumstances an order by default may be entered. (f) If the Department decides to sanction a provider, the Department shall notify the provider in writing at least 15 days before the effective date of action, except in the case of immediate suspension to avoid public harm or inappropriate expenditure of funds. (g) The provider may appeal the Department's immediate or proposed sanction or other actions the Department intends to take. The provider must appeal this action separately from any appeal of audit findings and overpayments. These include but are not limited to the following: (A) Termination or suspension from participation in the Medicaid-funded medical assistance programs; (B) Termination or suspension from participation in the Department's state-funded programs; or (C) Revocation of the provider's Department assigned provider number. (h) Other provisions: (A) When a provider has been sanctioned, all other provider entities in which the provider has ownership of five percent or greater, or control of, may also be sanctioned; (B) When a provider has been sanctioned, the Department may notify the applicable professional society, board of registration or licensure, federal or state agencies, OHP, PHP's and the National Practitioner Data Base of the findings and the sanctions imposed; (C) At the discretion of the Department, providers who have previously been sanctioned or suspended may or may not be re-enrolled as Department providers; (D) Nothing in this rule prevents the Department from simultaneously seeking monetary recovery and imposing sanctions against the provider; (E) Following a contested case hearing in which a provider has been found to violate ORS 411.675, the provider shall be liable to the Department for treble the amount of payments received as a result of each violation. Statutory/Other Authority: ORS 409.050 & 411.060 Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145 History: DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08 DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08 DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08