Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 79.
CORPORATIONS
Subchapter C. ENTITY NAMES
1 TAC §§79.31, 79.32, 79.34, 79.39, 79.41, 79.43 - 79.46, 79.48, 79.51 - 79.53
The Office of the Secretary of State (the Secretary of State)
proposes to amend Chapter 79, Subchapter C, concerning entity names. Specifically,
the Secretary of State proposes amendments to §§79.31, 79.32, 79.34,
79.39, 79.41, 79.43 - 79.46, 79.48, and 79.51 - 79.53.
The amendments are required to update terminology and to reflect current
data entry procedures regarding entity names; to clarify procedures with regard
to the requirement and submission of a letter of consent for the use of a
similar entity name; to provide clearer examples of conflicting and non-conflicting
entity names, and to conform rules to legislation passed by the 78th Legislature,
Regular Session.
The proposed amendments to §79.31, which relates to the characters
of print acceptable in a proposed entity name, are required to more specifically
identify the capabilities and limitations in the entry of entity names into
the present computer system maintained by the Secretary of State. The proposed
amendments to §79.32 clarify the examples provided regarding a name that
implies a purpose that would be unlawful for the proposed business entity.
The proposed amendment to §79.34 is a conforming amendment to reflect
the additional term of organization for limited partnerships effected by House
Bill 1637, 78th Legislature, 2003, Regular Session. The proposed amendments
to §79.39 clarify the circumstances and conditions under which a proposed
entity name would be deemed to be deceptively similar to an existing entity
name. The amendments to §79.41 provide more specific information regarding
procedures relating to the request and submission of a letter of consent for
use of a similar entity name. The proposed amendments to §79.43, which
identifies the conditions that determine when a proposed entity name would
require a letter of consent from an existing entity, are necessary to address
the increased use of Internet locator designations in entity names and to
clarify the conditions and circumstances requiring the submission of a letter
of consent for formation of an entity with a similar entity name. The proposed
amendments to §79.44 clarify the examples provided regarding entity names
consisting in whole or in part of initials or letters of the alphabet. The
proposed amendments to §79.45 expand the examples and comparisons of
entity names comprised in whole or in part of surnames. The amendments to §79.46
clarify that the exceptions provided for entity names of churches also apply
to ministries. The proposed amendments to §79.48 reflect the change in
terminology used to identify an entity's inactive status. The proposed amendments
to §79.51 and §79.52 are administrative in nature and address terminology
used to identify the current organizational structure of Chapter 79. The proposed
amendment to §79.53 provides a more useful example regarding use of a
term restricted by the International Olympic Committee or the United States
Olympic Committee.
Carmen Flores, Legal Counsel for the Business and Public Filings Division
of the Office of the Secretary of State, has determined that for each year
of the first five years that the sections are in effect there will be no fiscal
implications to state or local governments as a result of enforcing or administering
these sections.
Ms. Flores also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
or administering the sections as proposed will be to provide additional information,
clarification, and guidance to persons seeking to form a domestic corporation,
limited liability company, or limited partnership or to register a foreign
corporation, limited liability company, or limited partnership regarding the
statutory requirements relating to entity name availability and entity name
standards. There will be no effect on small or micro businesses. There is
no anticipated economic cost to persons who are required to comply with the
proposed rules.
Comments on the proposed rules may be submitted to: Carmen Flores, Legal
Counsel for the Business and Public Filings Division, Office of the Secretary
of State, P.O. Box 13697, Austin, Texas 78711-3697. Comments must be received
not later than the 30th day after the issue date of the
Texas Register
in which this proposal appears.
The amended sections are proposed under Article 9.03 of the Texas
Business Corporation Act and Article 1396-9.04 of the Texas Non-Profit Corporation
Act, which provide the Secretary of State with the power and authority reasonably
necessary to efficiently administer the Acts and to perform the filing responsibilities
imposed upon the Secretary of State.
The amended sections affect: Articles 2.05 and 8.03 of the Texas Business
Corporation Act; Article 1396-2.04 and Article 1396-8.03 of the Texas Non-Profit
Corporation Act; Articles 2.03 and 7.03 of Article 1528n, Texas Limited Liability
Company Act, and §1.03 of Article 6132a-1, Texas Revised Limited Partnership
Act.
§79.31.Characters of Print Acceptable in Names.
(a)
Entity names may consist of letters of the Roman alphabet,
Arabic numerals, and certain symbols capable of being reproduced on a standard
English language typewriter, or combination thereof.
(b)
No
[
(c)
Arabic numerals include 0, 1, 2, 3, 4, 5, 6, 7, 8, and
9.
(d)
The symbols recognized as part of a name may include !
" $ % ' ( ) * ? # = @ [ ] / + & and -.
§79.32.False Implication of Governmental Affiliation; False Implication of Purpose.
(a)
The entity name may not be one that might falsely imply
governmental affiliation (example: Texas Real Estate Commission, Inc.).
(b)
The entity name may not imply a purpose
that
[
(1)
The
words
[
(A)
Example: John Hancock Insurance Company
or A-1 Surety
Company
would not be filed.
(B)
Example: John Hancock Insurance Agency, Inc.[
(2)
The words "bail bond" [
[
[
§79.34.Words of Incorporation or Organization.
(a)
Words of incorporation include "company," "corporation,"
"incorporated," and, in the case of a foreign corporation, "limited," and
their acceptable abbreviations. The acceptable abbreviations are, respectively:
"Co.," "Corp.," "Inc.," and "Ltd." The words "companies," "corporations,"
"incorporation," and "unlimited" when used alone do not satisfy the statutory
requirements for words of incorporation.
(b)
Words of organization of a domestic or foreign limited
partnership include "limited partnership," "limited," and their acceptable
abbreviations. The acceptable abbreviations are, respectively: "L.P.
,
"
"LP,"
or "Ltd." The words "limited partnerships" or other
variations of the statutory terms when used alone are not acceptable.
(c)
The words of organization of a domestic or foreign limited
liability company are "Limited Liability Company" or "Limited Company." The
acceptable abbreviations are: "L.L.C.," "LLC," "LC," or "L.C." In addition,
the word "Limited" may be abbreviated as "Ltd." or "LTD" and the word "Company"
may be abbreviated as "Co." The words "Limited" or "Company" or other variations
of the statutory terms when used alone are not acceptable.
(d)
The words of organization of a domestic or foreign professional
limited liability company are "Professional Limited Liability Company." The
acceptable abbreviations are: "P.L.L.C." or "PLLC."
(e)
Neither the words nor the abbreviations of the words of
incorporation or organization listed in subsections (a), (b), (c), or (d)
of this section may be used as a sufficient basis to distinguish among otherwise
deceptively similar or same names.
§79.39.Deceptively Similar Name.
A proposed entity name is deemed to be deceptively similar to an entity
name on file if any of the following conditions exist.
(1)
The difference in the names consists in the use of different
words of incorporation or organization. Example: Sampson, Inc., is deceptively
similar to Sampson Corporation.
(2)
The difference in names consists in the use of different
articles, prepositions, or conjunctions
[
(3)
The difference consists in the use of periods, spaces,
or other spacing symbols that do not alter the names sufficiently to make
them readily distinguishable
[
(A)
Example: The following names are deceptively similar:
(i)
AGX Corp.;
(ii)
A G X Corp;
(iii)
A.G.X. Corp;
(iv)
AG*X* Corp;
(v)
A/G/X Corp;
[
[
(vi)
[
(B)
Example: Fair View Rest Home, Inc., is deceptively similar
to Fairview Rest Home, Inc.
(C)
Example: A and B Trucking,
Inc. is not deceptively similar to AB Trucking, LLC.
(D)
Example: Double X Tire Company
is not deceptively similar to XX Tires, Inc., and neither Double X Tire Company
nor XX Tires, Inc. is deceptively similar to 2X Tires Incorporated.
(4)
The difference consists in the presence or absence of letters
that
[
(A)
Example: Exon, Exxonn, [
(B)
Example: Centennial Alarm Systems Corp. is deceptively
similar to
Centennial Alarm System Company.
[
(C)
Example: Medina Media Cabinets
LLC is deceptively similar to Meddina's Media Cabinets, Inc.
[
[
[
(5)
The names are spelled differently
or use alternative symbols, but sound alike when spoken, thus making the names
phonetic equivalents and difficult to distinguish upon hearing.
(A)
Example: Chemtech Corporation is deceptively
similar to Kemtek Incorporated.
(B)
Example: A and A Trucking, Inc. is deceptively
similar to A & A Trucking Company.
(C)
Example: Four Winds, Inc. is deceptively similar
to 4 Winds Corp. and IV Winds Ltd.
(6)
The difference in names consists
of the use of common abbreviations or acronyms for the same term.
(A)
Example: Johnson Bros. Company is deceptively
similar to Johnson Brothers Company.
(B)
Example: The Commons Northwest, Inc. is deceptively
similar to The Commons NW, Company.
(C)
Example: Central Texas Hideaways, LLC is deceptively
similar to CenTex Hideaways, Inc.
(D)
Example: DFW Carpet Cleaning, Inc. is deceptively
similar to Dallas-Fort Worth Carpet Cleaning Company.
§79.41.Similar Requiring Letter of Consent Acceptable with Letter.
(a)
A proposed name which is deemed to be similar
requiring letter of consent cannot be filed without a letter of consent. No
waiver of a required letter of consent will be allowed even though it may
appear that the existing entity is not actively engaged in business, is about
to change its name, be dissolved, forfeited, or merged out of existence.
(b)
The letter of consent must
accompany the document to which the consent relates at the time of submission.
(c)
Upon the simultaneous submission
of documents relating to the formation of two or more related entities, consent
for the use of a name that would be considered similar requiring consent will
be implied. Example: No letter of consent is required for the simultaneous
formation of ABC Ventures, Ltd., a Texas limited partnership, and its general
partner, ABC Ventures GP, LLC.
(d)
If proposed entity name conflicts
with more than one entity name, the secretary of state will request that the
letter of consent be obtained from the entity with the longest continuous
use of the entity name as determined by the records of the secretary of state.
§79.43.Similarity of Names Requiring Letter of Consent.
A proposed entity name is similar to an existing name and requires
a letter of consent if any of the following conditions exists.
(1)
The proposed entity name is the same as, or deceptively
similar to, an entity name on file except for a geographical designation at
the end of the name.
For purposes of this paragraph, geographic designation
includes the recognized name or abbreviation of a city, county, state, country,
lake or ocean, a region (Permian Basin, Metroplex, Central Texas, etc.), a
recognized subdivision within the state, a continent, or a compass point of
reference. For purposes of this section, the term geographic designation does
not include street names or non-specific location terms such as "International,"
"Gulf," or "Central."
(A)
Example: Bull and Bear Club of San Antonio would need a
letter of consent from Bull and Bear Club.
(B)
Example: San Antonio Bull and Bear Club would not need
a letter of consent from Bull and Bear Club.
(C)
Example: Acme, Ltd. would need
a letter of consent from Acme Southwest, Inc.
(D)
Example: Exhibits International,
LLC would not need a letter of consent from Exhibits, Inc.
(E)
TempStaff, Inc. would need
a letter of consent from TempStaff of Central Texas, Limited Partnership.
(2)
The first two or more words of a proposed entity name are
the same as, or deceptively similar to, the first two words of an entity name
on file, and are not frequently used in combination.
(A)
Example: Houston Service and Supply, Inc., would need a
letter of consent from Houston Service, Inc.
(B)
Example: Sunset Oil Co. would need a letter of consent
from Sunset Oil and Gas, Inc.
(C)
Example: First Texas Mortgage and Title Company would need
a letter of consent from First Texas Mortgage Company.
(D)
Example: Hot Dog Publications, Inc., would not need a letter
of consent from Hot Dog Enterprises Corp.
[
(3)
The proposed entity name is the same as, or deceptively
similar to, an entity name on file except for a numerical expression which
implies that the proposed entity is an affiliate of or in a series with the
existing entity. Example: A letter of consent from an existing entity named
United Company would be required in order to file any of the following:
(A)
United IV;
(B)
United No. 7;
(C)
United Phase Two
;
[
(D)
United 2005.
(4)
If the entity name on file has only one significant word
and the proposed entity name consists of the same word followed by some other
significant word, the proposed entity name is not similar requiring letter
of consent. Example: A letter of consent from an existing entity named United
Company would not be required in order to file any of the following:
(A)
United Sales;
(B)
United Service;
(C)
United Supply;
(D)
United Industries;
(E)
United Associates;
(F)
United International;
(G)
United Systems;
(H)
United Products;
(I)
United Productions.
(5)
The proposed entity name contains the same words as an
existing entity name but the words are inverted.
(A)
Example: Energy Ventures, Inc., would need a letter of
consent from Ventures Energy Corp.
(B)
Example: Austin Auto Parts, Inc., would need a letter of
consent from Auto Parts of Austin, Incorporated.
(6)
The difference in the names consists in the use of the
term "companies." Example: Satterwhite Companies, Ltd. would need a letter
of consent from Satterwhite Corporation.
(7)
The proposed entity name is
the same as or deceptively similar to that of an existing entity name except
for an Internet locator designation at the end or at the beginning of the
name.
(A)
Example: BusinessWorks.com, Inc. would need
a letter of consent from Business Works, L.P.
(B)
Example: WWW.ARTBEAT Company would need a letter
of consent from ArtBeats, LLC.
(8)
The difference in names consists
of words or contractions of words that are derived from the same root word
and there is no other distinguishing word in the name.
(A)
Example: Magic Show, Inc. would need a letter
of consent from Magical Show, Ltd.
(B)
Example: Management Education Incorporated would
need a letter of consent from Management.edu L.P.
(C)
Example: Acme Electrical Products Incorporated
would not need a letter of consent from Acme Electric Company.
§79.44.Alphabet Names.
Where a name or a unit of names consists of initials only or letters
of the alphabet, the combination of initials will be considered as one word
for the purpose of applying name availability rules.
(1)
Example: The following are different "words" and are not
considered to be similar:
(A)
A & A;
(B)
AA
[
(C)
AAA
[
(D)
ABA
[
(E)
AAB
.
[
[
(2)
Example: A & B Supply is not similar when compared
to A & B, Inc.
(3)
Example:
A+A
[
(4)
Example: A and B Trucking,
Inc. is not similar when compared to AB Trucking, LLC.
§79.45.Surnames.
(a)
A surname is considered to be a "word." Where a proposed
entity name contains a surname as the second "word" and contains a given name
or initials as a first "word" which is different from the first "word" of
an existing entity, the name is not similar.
(1)
Example: E. G. Williams Electric Company is not similar
when compared to Williams Electric Company.
(2)
Example: Jim Smith, Inc., is not similar when compared
to Smith, Inc.
(3)
Example: Ralph A. Johnson, Inc., is not similar when compared
to Ralph Johnson, Inc.
(b)
The use of a surname, or surnames, as part of a proposed
entity name is not similar if there is some other sufficient basis for distinction
of the two entity names.
(1)
Example: Davis & Davis, P.C., is not similar
when compared to Davis & Davis Publication, Inc.
(2)
Example: Allyn Investments,
Inc. is not similar when compared to Allan Investments Group, LLC.
(3)
Example: Brown Manufacturing
Company is deceptively similar to Brown's Manufacturing, Ltd.
(4)
Example: Davis & Davis
Publications, Inc. is not similar when compared to Davis Publications Company.
(5)
Example: John Brown Manufacturing
Company is not similar when compared to John Brown Sales, Inc.
(6)
Example: Flores Family Company
is not similar when compared to Flores Family Foundation.
(7)
Example: Conlee Construction
Company is not similar when compared to Conley Construction Incorporated.
(8)
Example: Parson & Parson
Company would need a letter of consent from Parson & Parson - Dallas,
Inc.
§79.46.Exception for Churches and Ministries .
Entity names of churches will not be considered similar if there is
some sufficient basis for distinguishing the name from an existing entity
name.
(1)
Example: First Baptist Church of Wimberley
is not similar when compared to First Baptist Church of Austin.
(2)
Example: God in Heaven Ministries
is not similar when compared to God in Heaven Church.
§79.48.Matters Not Considered.
Only the proposed entity name, the
current
names of active
(not
revoked, cancelled, merged,
[
(1)
whether the purpose of a proposed entity is the same as
or similar to the purpose of an existing entity;
(2)
whether the entities will be carrying out activities in
the same or nearby locations;
(3)
whether an analogous situation has previously been acted
upon by the Corporations Section;
(4)
whether an "opinion" as opposed to a final determination
has previously been expressed by an employee of the secretary of state in
response to an oral or written request;
(5)
whether an existing entity is actively engaged in business,
or has a telephone listing, or a location of a place of business;
(6)
whether an existing entity is about to change its name,
or be dissolved, or merged out of existence;
(7)
whether a response to an inquiry can be obtained from an
existing entity;
(8)
whether the applicant has ordered stationery, opened a
bank account, signed a contract, or otherwise altered his position in the
expectation, hope, or belief that the proposed name would be available;
(9)
whether the applicant is more or less important, extensive,
widely known, or influential than an existing entity;
(10)
whether the applicant has a prior or superior right to
the use of a name apart from what might be shown on inspection of the names
of active entities on file in the entity records of the secretary of state;
(11)
whether infringement or unfair trade practice has occurred
or might occur;
(12)
whether an existing entity has
filed
[
(13)
whether an applicant's submission of a document relating
to the entity name at issue was prior to the submission of the document effecting
the conflicting existing name.
§79.51.Limited Partnerships.
The name of a limited partnership as stated in its certificate of limited
partnership, a reserved or registered name, or the name under which a foreign
limited partnership is permitted to register in Texas as contained in its
application for registration as a foreign limited partnership, is governed
by the sections
of this subchapter
[
§79.52.Limited Liability Companies.
The name of a limited liability company as stated in its articles of
organization, a reserved or registered name, or the name under which a foreign
limited partnership is permitted to register to do business in Texas as contained
in its application for registration as a foreign limited liability company
is governed by the sections
of this subchapter
[
§79.53.Restricted Words.
An entity name cannot include the words, "Olympic," "Olympiad," or
"Citius Altius Fortius," or a combination or simulation of those words or
use a trademark, trade name, symbol or insignia of the International Olympic
Committee or the United States Olympic Committee without the authorization
or permission of the United States Olympic Committee. Example: Olympian Tours,
Inc. would require a letter of consent, authorization, or no objection from
the United States Olympic Committee. Example:
Olympic Construction Company
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 4, 2004.
TRD-200403695
Lorna Wassdorf
Director, Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 463-5561
Chapter 371.
MEDICAID AND OTHER HEALTH AND HUMAN SERVICES FRAUD AND ABUSE PROGRAM INTEGRITY
The Texas Health and Human Services Commission (the Commission) proposes
a new Subchapter A ("Introduction") and a new Subchapter B ("Office of Inspector
General") to implement the additions and revisions to state statutes passed
in the 78th Legislature, 2003, through House Bills (HB) 2292 and 1743. The
Commission proposes to repeal Subchapter F and the sections within Subchapter
F. It also proposes amended, new, and repealed sections within Subchapter
G in an effort to redesign and restructure the flow of the subchapter and
ensure compliance with federal regulations and statutes at 42 Code of Federal
Regulations (CFR), Parts 1001, 1002 and 455, the Texas Government Code, Part
531, Human Resources Code, Chapter 32, the Occupations Code, Part 102, and
to implement the additions and revisions to state statutes passed through
HB 2292 and 1743, all of which are designed to strengthen the state's ability
to improve fraud and abuse detection, investigation, criminal referral and
prosecution, and recovery of overpayments plus damages and penalties against
Texas Medicaid and health and human services providers, recipients, and contractors.
The rules provide an increased effort to identify fraud or abuse prior to
payments being made to providers resulting in improved fiscal control of funds.
HB 2292 and 1743 also established the Office of Inspector General (Inspector
General) within the Commission and consolidate fraud, abuse, and waste investigations
plus audit and other multiple compliance functions for Texas Medicaid and
all health and human services under the Inspector General. The Commission
proposes a title change of Chapter 371 to reflect the consolidation of program
integrity functions within the Office of Inspector General and proposes a
change to the title of Divisions 2 and 3 of Subchapter G to reflect the reorganization
of the rules.
In Subchapter A, the Commission proposes new §371.1.
In Subchapter B, the Commission proposes new §§371.11, 371.13,
371.15, 371.17, 371.19, 371.21, 371.23, 371.25, 371.27, 371.29, 371.31, and
371.33.
In Subchapter F, the Commission proposes to repeal §§371.1501,
371.1503, 371.1505, 371.1507 and 371.1509.
In Subchapter G, Division 1, the Commission proposes to repeal §§371.1601,
371.1603, 371.1607, 371.1609, 371.1611, 371.1613, 371.1615, 371.1617, 371.1619,
371.1621, 371.1623, 371.1625, 371.1627, and 371.1629. The Commission proposes
to amend §371.1605. The Commission proposes to add new §§371.1601,
371.1603, 371.1607, 371.1609, and 371.1611.
In Subchapter G, Division 2, the Commission proposes to add new §§371.1613,
371.1615, 371.1617, and 371.1619. The Commission proposes to repeal §§371.1641,
371.1643, and 371.1645.
In Subchapter G, Division 3, the Commission proposes to add new §§371.1629,
371.1631, and 371.1633. The Commission proposes to repeal §§371.1661,
371.1663, 71.1665, 371.1667, 371.1669, 371.1671, 371.1673, and 371.1675.
In Subchapter G, add a new Division 4, the Commission proposes to add new §§371.1643,
371.1645, 371.1647, 371.1649, 371.1651, 371.1653, 371.1655, 371.1657, 371.1659,
371.1661, 371.1663, 371.1665, 371.1667, 371.1669, 371.1671, 371.1673, 371.1675,
371.1677, 371.1679, 371.1681, 371.1683, 371.1685, 371.1687, and 371.1689.
In Subchapter G, add a new Division 5, the Commission proposes to add new §§371.1701,
371.1703, 371.1705, and 371.1707.
In Subchapter G, add a new Division 6, the Commission proposes to add new §§371.1721,
371.1723, 371.1725, 371.1727, 371.1729, 371.1731, 371.1733, 371.1735, 371.1737,
371.1739, and 371.1741.
Since one purpose of these revisions is to redesign and restructure the
flow, the great majority of all language in the repealed sections is reflected
in the new proposed sections in a rearranged form. There are some language
changes to better clarify the intent of rules, regulations and statutes, and
policies and procedures. The great majority of these, however, reflect current
rules, regulation and statutes, and policies and procedures. There are several
new rules to comply with the provisions of federal and state regulations and
statutes as described above and to implement the new legislation contained
in HB2292 and 1743.
Tom Suehs, Deputy Commissioner of Financial Services, has determined that
for the first five years that the proposed rules and repeals are in effect,
there will be a substantial cost savings for state government as a result
of enforcing or administering the sections. The anticipated cost savings will
come from additional automated and manual enforcement tools to detect fraud
and abuse, additional tools to ensure the collection of overpayments and penalties
identified, and consolidating fraud and abuse program integrity staff from
various agencies allowing more flexibility to utilize resources more effectively
and to the best benefit of the state. There should be cost savings to the
state in the first two fiscal years 2004 and 2005 of approximately $78,335,428.
There should be no impact on local government.
Mr. Suehs has also determined that for each year of the first five years
the proposed rules and repeals are in effect, the public will benefit from
adoption of the rules and repeals. The anticipated public benefit will be
to ensure that Medicaid and other health and human service providers defrauding
or abusing the programs or those providing inferior quality care will be identified,
investigated, and excluded from participation and that overpayments and penalties
are recovered to the state. There is no anticipated impact regarding access
to care and there is no anticipation of any increased cost of compliance for
any size business. There are no anticipated economic costs to persons who
are required to comply with the proposed rules and repeals. There is no anticipated
impact on local employment.
The Commission has determined that the proposed rules are not a "major
environmental rule" as defined by §2001.0225, Government Code. The proposed
rules are not specifically intended to protect the environment or reduce risks
to human health from environmental exposure.
The Commission has determined that the proposed rules do not restrict or
limit an owner's right to his or her property that would otherwise exist in
the absence of governmental action and, therefore, do not constitute a taking
under §2007.043 Government Code.
Written comments on the proposal may be submitted to Sharon Thompson, Director,
Medicaid Integrity, Office of Inspector General, Texas Health and Human Services
Commission, P.O. Box 13247, Austin, Texas 78711-3247 within 30 days of publication
of this proposal in the
Texas Register
.
Subchapter A. INTRODUCTION
1 TAC §371.1
The new rule is proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rule affects Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1.Purpose and Scope.
Medicaid and other Health and Human Services program integrity requires
that appropriate and medically necessary covered health care services be delivered
safely by qualified active providers to eligible recipients in exchange for
payment at rates and pursuant to codes and/or contractual terms established
prior to the delivery of services. All services billed must be provided by
providers who are enrolled as a provider and have signed a contract or provider
agreement. Regardless of payment methodology, program requirements, established
through federal and state statutes, federal regulations, administrative rules,
program rules, policies, procedures and manuals, and official explanations
of those rules, policies, procedures and manuals, prescribe and govern appropriate
delivery of and payment for health care services and items within Medicaid
and health and human services. The Health and Human Services Commission (the
Commission), through the Commission's Office of Inspector General (the Inspector
General), is the state agency responsible for ensuring the integrity of the
Texas Medicaid program and enforcing state administrative law related to suspected
fraud, abuse, overpayments, and waste in the provision of Medicaid and health
and human services. Inspector General staff are to pursue priority Medicaid
and other health and human services fraud and abuse cases. This chapter sets
forth the types of review, investigation, and audits performed by the Commission
to ensure program integrity, as well as the Commission's administrative enforcement
and appeals procedures triggered by suspected program violations.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 7, 2004.
TRD-200403703
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.11, 371.13, 371.15, 371.17, 371.19, 371.21, 371.23, 371.25, 371.27, 371.29, 371.31, 371.33
The new rules are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.11.Purpose and Scope.
(a)
The Office of Inspector General (the Inspector General)
is a division within the Health and Human Services Commission (the Commission).
The Inspector General is responsible for the investigation of fraud and abuse
in the provision of health and human services and the enforcement of state
law relating to the provision of those services. The office administers program
integrity and enforces program violations to the extent of applicable law
governing Medicaid and the provision of other health and human services. This
includes pursuing Medicaid and other health and human services fraud, abuse,
overpayment, and waste. To accomplish this, the Inspector General has established
several review processes to distinguish payment discrepancies that can be
corrected through routine payment adjustment from those suspected to result
from program violation requiring investigation and possible administrative
enforcement or judicial action.
(b)
The Inspector General establishes objectives and priorities
for the office that emphasize:
(1)
coordinating investigative efforts to aggressively recover
funds;
(2)
allocating resources to cases that have the strongest supportive
evidence and the greatest potential for recovery of money; and
(3)
maximizing opportunities for referral of cases to the Office
of the Attorney General.
(c)
In addition to performing functions and duties otherwise
provided by law, the Inspector General may:
(1)
assess administrative penalties otherwise authorized by
law on behalf of the Commission or a health and human services agency;
(2)
request that the attorney general obtain an injunction
to prevent a person from disposing of an asset identified by the Inspector
General as potentially subject to recovery by the Inspector General due to
the person's fraud or abuse;
(3)
provide for coordination between the Inspector General
and special investigative units formed by managed care organizations or entities
with which managed care organizations contract to identify and investigate
fraudulent claims and other types of program abuse by recipients and providers,
and approve the plan of the special investigative units to prevent and reduce
fraud and abuse;
(4)
audit the use and effectiveness of state or federal funds,
including contract and grant funds, administered by a person or state agency
receiving the funds from a health and human services agency;
(5)
conduct investigations relating to the funds described
by paragraph (4) of this subsection; and
(6)
recommend policies promoting economical and efficient administration
of the funds described by paragraph (4) of this subsection and the prevention
and detection of fraud and abuse in the administration of those funds.
(d)
The Inspector General may require employees of health and
human services agencies to provide assistance to the Inspector General in
connection with its duties relating to the review, investigation, and audit
of fraud, abuse, and overpayment in the provision of health and human services.
(e)
The Inspector General is entitled to access to any information
maintained by a health and human services agency, including internal records,
relevant to the functions of the office. This chapter sets forth the types
of activities performed by the Inspector General to ensure program integrity.
(f)
The Commission may obtain any information or technology
necessary to enable the Inspector General to meet its responsibilities as
mandated by state statute.
§371.13.Statutory Authority.
The statutory authority for this subchapter is provided by Texas Human
Resources Code, Chapters 32 and 36, Texas Government Code §531.001 et
seq., Texas Occupations Code, Chapter 102, 42 United States Code, 42 Code
of Federal Regulations, and the Social Security Act.
§371.15.Confidentiality of Investigation Records.
All information and materials subpoenaed or compiled by the Inspector
General in connection with an investigation are confidential and not subject
to disclosure under Chapter 552 of the Texas Open Records Act, and not subject
to disclosure, discovery, subpoena, or other means of legal compulsion for
their release to anyone other than the Inspector General or its employees
or agents involved in the investigation conducted by the Inspector General,
except that this information may be disclosed to the Office of the Attorney
General and law enforcement agencies.
§371.17.Detection.
The Inspector General utilizes automation as well as other techniques
to detect and identify program violations and possible fraud, abuse, and overpayments.
These automated detection systems are mandated by state and federal statutes.
One automated system is additionally required to utilize neural network and
learning technologies. These systems detect patterns of inappropriate billing
from which an overpayment is identified immediately without the need for additional
investigation. They also detect anomalous billing and service patterns, which
then require investigation for evidence of program violations.
§371.19.Investigation.
The Inspector General initiates preliminary investigations as the result
of potential cases of fraud, abuse, or overpayments detected through the automation
detection tools, complaints, or referrals. If as the result of a preliminary
investigation, it is determined that a full-scale investigation is necessary,
Inspector General investigators will develop all pertinent facts and evidence
to identify persons defrauding and abusing Medicaid and other health and human
service programs. During such investigations, it may be necessary for the
Inspector General to secure patient medical records, other pertinent provider
files, and files for which access may be denied. For this instance, the Inspector
General has been granted subpoena authority to subpoena records and documents
necessary and pertinent to fraud and abuse cases.
§371.21.Subpoena Authority.
(a)
The Inspector General may, upon a determination of good
cause, and with the approval of the Executive Commissioner or the Executive
Commissioner's designee, issue a subpoena, in connection with an investigation
conducted by the Inspector General, to compel the attendance of a relevant
witness or the production of relevant evidence as determined by the Inspector
General. "Good cause" will be determined from the specific circumstances of
the investigation. Circumstances that may result in a determination of "good
cause" include, but are not limited to, the following situations:
(1)
A provider's failure to comply with an OIG investigative
demand for the attendance of a relevant witness or the production of relevant
evidence;
(2)
A provider's past history of failing to comply with an
OIG investigative demand for the attendance of a relevant witness or the production
of relevant evidence;
(3)
A reasonable belief that, without the issuance of a subpoena,
relevant evidence will be compromised;
(4)
A determination that there is an immediate threat to the
health or safety of a Medicaid recipient; or
(5)
A substantial likelihood of loss of state or federal funds.
(b)
The subpoena may be served personally or by certified mail.
Failure to comply with a subpoena will result in the Inspector General, through
the Attorney General, filing suit to enforce the subpoena in a state district
court.
§371.23.Surety Bond.
(a)
The Inspector General may require each provider of medical
assistance in a provider type that has demonstrated significant potential
for fraud or abuse to file, with the Inspector General, a surety bond in a
reasonable amount. The amount of the surety bond shall not exceed the maximum
amount allowed by state or federal law, plus the maximum amount of penalties
allowed by state and federal law.
(b)
The Inspector General will require a provider of medical
assistance or person to file, with the Inspector General, a surety bond in
a reasonable amount if the Inspector General identifies a pattern of suspected
fraud or abuse involving criminal conduct relating to the provider's services
under the program that indicates the need for protection against potential
future acts of fraud or abuse. The amount of the surety bond shall not exceed
the maximum amount allowed by state or federal law, plus the maximum amount
of penalties allowed by state and federal law.
(c)
The surety bond required of a provider or person, by the
Inspector General, under subsections (a) and (b) of this section must be payable
to the Commission to compensate the Commission for damages resulting from,
or penalties or fines imposed in connection with, an act of fraud or abuse
committed by the provider or person under the program.
(d)
The Inspector General may require a provider of medical
assistance or person to file, with the Inspector General, a surety bond in
an amount and manner specified by the Inspector General. A surety bond may
be required if the Inspector General identifies a pattern of suspected fraud
or abuse that involves criminal conduct that relates to the provider's services
under the program and that indicates the need for protection against potential
loss of recoupment of overpayments, penalties, damages, or other debts assessed
against the provider by the Inspector General, due to potential default of
the provider or failure of the provider to reimburse the Inspector General
assessed amounts. Among other reasons, a surety bond may be imposed in connection
with a settlement agreement, a provisional, probationary, or closed end contract,
or as a condition of reinstatement.
(e)
Subject to subsections (f) or (g) of this section, the
Inspector General may require each provider of medical assistance that establishes
a resident's trust fund account to post a surety bond to secure the account.
The bond must be payable to the Commission to compensate residents of the
bonded provider for trust funds that are lost, stolen, or otherwise unaccounted
for if the provider does not repay any deficiency in a resident's trust fund
account to the person legally entitled to receive the funds.
(f)
For that portion of a case involving a resident's trust
fund accounts, the Inspector General will not require the amount of a surety
bond posted for a single facility provider under subsection (e) of this section
to exceed the average of the total average monthly balance of all of the provider's
resident trust fund accounts for the 12-month period preceding the bond issuance
or renewal date. This limitation does not apply to any other type of violations
other than resident trust fund accounts.
(g)
If an employee of a provider of medical assistance is responsible
for the loss of funds in a resident's trust fund account, the resident, the
resident's family, and the resident's legal representative are not obligated
to make any payments to the provider that would have been made out of the
trust fund had the loss not occurred.
(h)
Failure by a provider or person to post a surety bond timely
and as required by the Inspector General may result in imposition of any of
the administrative actions or sanctions, as specified in §371.1631 and §371.1643,
and/or imposition of damages and penalties, as specified in §371.1721
et seq. of subchapter G.
(i)
Surety bonds required by the Inspector General are considered
administrative actions. Administrative actions are further described in Subchapter
G, §371.1629 and §371.1631 of this title.
§371.25.Injunction to Prevent Disposing of Assets and Application to Debts.
Based on the results of investigative findings and evidence that potential
fraud or abuse exists and a potential overpayment, penalty, or damage has
been identified, a method that may be used by the Inspector General, as a
fiduciary for the state, is injunctive relief. The purpose of the injunctive
relief is to ensure assets remain to reimburse the state monies owed such
as recoupment of overpayments and assessed damages and penalties. The Inspector
General may request that the Attorney General obtain an injunction to prevent
a provider or person from disposing of an asset identified by the Inspector
General as potentially subject to recovery by the Inspector General due to
the provider's or person's fraud or abuse. Upon final resolution of the case,
any funds derived from the forfeited asset(s), after offsetting any expenses
attributable to the sale of those assets, will be applied, by the Inspector
General, to the unpaid debt.
§371.27.Prohibition against Solicitation of Medicaid or CHIP Recipients.
(a)
A provider or person who furnishes services, under the
Medicaid program or Child Health Insurance Plan program, must comply with
Chapter 102, Occupations Code.
(b)
A provider or person is prohibited from offering to pay
or agreeing to accept, directly or indirectly, overtly or covertly any remuneration
in cash or in kind to or from another for securing or soliciting a patient
or patronage for or from a person licensed, certified, or registered or enrolled
as a provider or otherwise by a state health care regulatory or health and
human service agency.
(c)
A provider or person is prohibited from any of the provisions
or actions relating to bribe, kickback, rebate, or inducement specified in
Subchapter G, §371.1721 of this title.
(d)
Providers or persons in violation of the prohibition against
solicitation may be excluded from participation in the Medicaid and CHIP programs
and may have their contract to participate cancelled.
§371.29.Random Prepayment Review.
The Inspector General may perform a random prepayment review of claims
submitted by Medicaid providers for reimbursement to determine whether the
claim involves fraud or abuse. Suspect claims identified through this process
may result in:
(1)
imposition of a recoupment of overpayments and/or other
pertinent administrative sanctions or actions;
(2)
initiation of a full-scale fraud and abuse investigation;
(3)
referral for criminal or civil investigation and prosecution;
(4)
withholding payment of these claims for not more than five
(5) working days without notice to the provider for which claims were submitted.
§371.31.Federal Felony Match.
The Inspector General will implement a system to cross-reference data
collected for the programs identified in §531.008(c) of the Government
Code with the list of fugitive felons maintained by the federal government.
The purpose of the data match is to identify fugitive felons who may be enrolled
as providers or recipients in the Medicaid and other health and human service
programs or in the assistance programs served by the health and human service
agencies.
§371.33.On-Site Reviews of Prospective Providers.
(a)
The Inspector General may implement procedures targeted
at minimizing the potential for fraud, abuse, false statements, misrepresentations,
and omissions by prospective Medicaid providers. The Inspector General may
conduct on-site reviews of providers who have applied to provide services
to recipients.
(b)
On-Site Review Criteria and Effect.
(1)
During its on-site review, the Inspector General will determine
whether or not an applicant has the ability to provide the services proposed
within its application. To make this determination, personnel will conduct
the inspections and interviews set forth in subsection (c) of this section
(relating to Scope of Review), and evaluate information gathered thereby within
the context of applicable industry standards, including state or federal governmental
licensing and/or certification standards that apply to the applicant under
review.
(2)
In the event an on-site review reveals that a provider
is not capable of delivering the services proposed within its application
or develops other evidence of fraud, abuse, false statements, misrepresentations,
or omissions, the application may be denied. The Inspector General also may
forward to the Attorney General or other appropriate law enforcement agency
any information discovered during an on-site review that the Inspector General
believes warrants further evaluation in a law enforcement context.
(c)
Scope of Review.
(1)
Inspections and interviews. During on-site reviews, Inspector
General personnel may:
(A)
inspect a provider's site for physical compliance with
state and federal law governing Medicaid providers;
(B)
review and verify licenses, certifications, and accreditation
required by or relevant to the Medicaid program;
(C)
interview randomly selected provider staff-members, patients,
and patients' family members;
(D)
review randomly selected patients' medical records;
(E)
review business records, as determined necessary by the
Inspector General, of prospective provider; and
(F)
verify any and all items in the application for participation,
contract, provider agreement, or any other documents supplied for purposes
of provider enrollment.
(2)
Personnel shall conduct all interviews during on-site reviews
in accordance with a standard format consistent with interview procedures
established for survey and investigation of existing Medicaid providers.
(3)
Home Health Agencies and Durable Medical Equipment Providers.
For all prospective providers of home health care and durable medical equipment,
personnel must research and confirm compliance by the provider with applicable
requirements of the Balanced Budget Act of 1997 and §32.024 of the Texas
Human Resources Code, regarding surety bonds and the financial condition of
the provider's business.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403704
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1501, 371.1503, 371.1505, 371.1507, 371.1509
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Health and Human Services Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1501.Purpose of Pilot Program.
§371.1503.On-Site Review Criteria and Effect.
§371.1505.Selection of Counties.
§371.1507.Selection of Prospective Providers To Be Reviewed.
§371.1509.Scope of Review.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403705
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1.
FRAUD OR ABUSE INVOLVING MEDICAL PROVIDERS
1 TAC §§371.1601, 371.1603, 371.1607, 371.1609, 371.1611, 371.1613, 371.1615, 371.1617, 371.1619, 371.1621, 371.1623, 371.1625, 371.1627, 371.1629
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Health and Human Services Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1601.Department Responsibility.
§371.1603.Confidentiality of Fraud or Abuse Investigation Records.
§371.1607.Department Responsibilities in Relation to Provider Fraud and Abuse.
§371.1609.Grounds for Fraud Referral and Administrative Sanction.
§371.1611.Administrative Sanctions/Actions, Restitution, and Recoupment.
§371.1613.Definitions.
§371.1615.Administrative Sanctions and Actions.
§371.1617.Scope of Sanction.
§371.1619.Imposing a Sanction.
§371.1621.Notice of Adverse Action.
§371.1623.Informing Other Interested Parties.
§371.1625.Provider Education.
§371.1627.Request for Reinstatement.
§371.1629.Obligation of Health Care Practitioners and Providers.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403706
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1641, 371.1643, 371.1645
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Health and Human Services Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a) and (c), Human Resources Code, provides that the
Commission shall adopt necessary rules for the proper and efficient administration
of the medical assistance program; §531.102 establishes the Office of
Inspector General (formerly the Office of Investigations and Enforcement)
and imposes responsibility for investigation of fraud and abuse in the provision
of health and human services and the enforcement of state law relating to
the provision of those services; the rules specifically implement the provisions
of House Bill 2292 and House Bill 1743; 42 CFR §455.13 requires the Medicaid
agency have methods and criteria for identifying suspected fraud and abuse
cases and methods for investigating fraud and abuse, and referring cases for
criminal prosecution; 42 CFR Part 455 specifies all federal requirements of
the Commission to provide for Medicaid fraud and abuse program integrity;
42 CFR §1002.2 provides authority for the Commission to exclude Medicaid
providers from participation in the Medicaid program; 42 CFR Part 1001 and
Part 1002 provide all requirements relating to exclusion of providers; and
various other state and federal statutes place requirements on the Commission
to implement a fraud and abuse program integrity component. The proposed repeal
meets the mandates of the state and federal statutes delineated above and
the state statutes above provide the Commission with broad rulemaking authority
for the implementation of those mandates.
The proposed repeal affects Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1641.Department Responsibility.
§371.1643.Recovery from Providers.
§371.1645.Recovery When Fraud Is Involved.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403710
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1661, 371.1663, 371.1665, 371.1667, 371.1669, 371.1671, 371.1673, 371.1675
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Health and Human Services Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a) and (c), Human Resources Code, provides that the
Commission shall adopt necessary rules for the proper and efficient administration
of the medical assistance program; §531.102 establishes the Office of
Inspector General (formerly the Office of Investigations and Enforcement)
and imposes responsibility for investigation of fraud and abuse in the provision
of health and human services and the enforcement of state law relating to
the provision of those services; the rules specifically implement the provisions
of House Bill 2292 and House Bill 1743; 42 CFR §455.13 requires the Medicaid
agency have methods and criteria for identifying suspected fraud and abuse
cases and methods for investigating fraud and abuse, and referring cases for
criminal prosecution; 42 CFR Part 455 specifies all federal requirements of
the Commission to provide for Medicaid fraud and abuse program integrity;
42 CFR §1002.2 provides authority for the Commission to exclude Medicaid
providers from participation in the Medicaid program; 42 CFR Part 1001 and
Part 1002 provide all requirements relating to exclusion of providers; and
various other state and federal statutes place requirements on the Commission
to implement a fraud and abuse program integrity component. The proposed repeal
meets the mandates of the state and federal statutes delineated above and
the state statutes above provide the Commission with broad rulemaking authority
for the implementation of those mandates.
The proposed repeal affects Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1661.Definitions.
§371.1663.Liability.
§371.1665.Maximum Amount.
§371.1667.Exemptions.
§371.1669.Determining the Amount.
§371.1671.Assessment of a Civil Monetary Penalty.
§371.1673.Payment of a Civil Monetary Penalty.
§371.1675.Prohibited Use of Civil Monetary Penalties in Cost Reports or Claims.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403712
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1.
FRAUD OR ABUSE AND ADMINISTRATIVE ENFORCEMENT INVOLVING MEDICAID
1 TAC §§371.1601, 371.1603, 371.1605, 371.1607, 371.1609, 371.1611
The amendment and new sections are proposed under §531.033
and §531.021, Texas Government Code, which provides the Commission with
broad rulemaking authority; §32.021(a) and (c), Human Resources Code,
provides that the Commission shall adopt necessary rules for the proper and
efficient administration of the medical assistance program; §531.102
establishes the Office of Inspector General (formerly the Office of Investigations
and Enforcement) and imposes responsibility for investigation of fraud and
abuse in the provision of health and human services and the enforcement of
state law relating to the provision of those services; the rules specifically
implement the provisions of House Bill 2292 and House Bill 1743; 42 CFR §455.13
requires the Medicaid agency have methods and criteria for identifying suspected
fraud and abuse cases and methods for investigating fraud and abuse, and referring
cases for criminal prosecution; 42 CFR Part 455 specifies all federal requirements
of the Commission to provide for Medicaid fraud and abuse program integrity;
42 CFR §1002.2 provides authority for the Commission to exclude Medicaid
providers from participation in the Medicaid program; 42 CFR Part 1001 and
Part 1002 provide all requirements relating to exclusion of providers; and
various other state and federal statutes place requirements on the Commission
to implement a fraud and abuse program integrity component. The proposal meets
the mandates of the state and federal statutes delineated above and the state
statutes above provide the Commission with broad rulemaking authority for
the implementation of those mandates.
The proposed amendment and new sections affect Chapter 531, Texas Government
Code, and Chapter 32, Human Resources Code.
§371.1601.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Abuse--Practices that are inconsistent with sound fiscal,
business, or medical practices and that result in unnecessary program cost
or in reimbursement for services that are not medically necessary; do not
meet professionally recognized standards for health care; or do not meet standards
required by contract, statute, regulation, previously sent interpretations
of any of the items listed, or authorized governmental explanations of any
of the foregoing.
(2)
Affiliates--Persons associated with one another so that
any one of them directly or indirectly controls or has the power to control
another in whole or in part or meets any portion of the definition for "Affiliate
Relationship" established at §371.1643 of this subchapter (relating to
Use of Sanctions).
(3)
Agent--Any person, company, firm, corporation, employee,
independent contractor, or other entity or association legally acting for
or in the place of another person or entity.
(4)
At the time of the request--A requirement to produce requested
records, upon request, at that time, without delay.
(5)
CHIP--Children's Health Insurance Program.
(6)
Claim--Requests for payment or reimbursement related to
services or items delivered within the Medicaid program, which are submitted
by a provider to the Medicaid claims administrator or an operating agency
either directly by a provider or indirectly through a managed care organization.
(7)
Claims Administrator--The agent designated by an operating
agency to process and pay Medicaid provider claims.
(8)
Closed-end Contract--A contract or provider agreement for
a specific period of time. It may include any specific requirements or provisions
deemed necessary by the Inspector General to ensure the protection of the
program. It must be renewed for the provider to continue to participate in
the Medicaid Program.
(9)
Commission--The Texas Health and Human Services Commission.
(10)
Controlled substances--"Controlled substance" as defined
by the Texas Controlled Substances Act (Texas Health and Safety Code, Chapter
481) or its successor and the Federal Controlled Substances Act (21 USCA §8.01
et seq.) or its successor.
(11)
Conviction or convicted--A person is considered to have
been convicted when:
(A)
A judgment of conviction has been entered against an individual
or entity by a federal, state, or local court, regardless of whether:
(i)
There is a post-trial motion or an appeal pending, or
(ii)
The judgment of conviction or other record relating to
the criminal conduct has been expunged or otherwise removed;
(B)
A federal, state, or local court has made a finding of
guilty against an individual or entity;
(C)
A federal, state, or local court has accepted a plea of
guilty or nolo contendere by an individual or entity; or
(D)
An individual or entity has entered into participation
in a first offender, deferred adjudication or other program or arrangement
where judgment of conviction has been withheld.
(12)
Exclusion--Means that items or services furnished, ordered,
or prescribed by a specified individual or entity will not be reimbursed under
Medicare, Medicaid and all other state health care programs until the individual
or entity is reinstated by the Inspector General. When excluded, any provider
contract/agreement with the excluded person or in which the excluded person
is affiliated is canceled. An excluded provider ceases to be a "provider",
as defined in this section, upon the effective date of their exclusion, thus
for purposes of this subchapter, they become a "person", as defined in this
section.
(13)
Failure to grant immediate access--The failure to grant
access to records, documents, or premises, upon reasonable request and as
requested, for the purpose of reviewing, examining, and securing custody of
records, access to, disclosure of, and custody of copies or originals of any
records, documents, or other requested items, and others specified in §371.1643(e)
of this subchapter, as determined necessary by the Inspector General or those
specified in §371.1643(e) of this subchapter to perform statutory functions.
Further definition and clarification is provided in §371.1643(e) of this
subchapter.
(14)
False statement or misrepresentation--Any statement or
representation that is inaccurate, incomplete, or not true.
(15)
Federal financial participation (FFP)--The federal government's
share of a state's expenditures under the Medicaid program and other benefit
programs.
(16)
Fraud--Any act that constitutes fraud under applicable
federal or state law, including any intentional deception or misrepresentation
made by a person with the knowledge that the deception could result in some
unauthorized benefit to that person or some other person.
(17)
Health Maintenance Organization (HMO)--A public or private
organization organized under state law that is a federally qualified HMO or
that meets the definition of HMO within this state's Medicaid plan.
(18)
HHS--A health and human service agency under the umbrella
of the Health and Human Services Commission (the Commission), including the
Commission, a program or service provided under the authority of the Commission
or a health and human service agency.
(19)
Immediate family member--A person's spouse; natural or
adoptive parent; child or sibling; stepparent, stepchild, stepbrother or stepsister;
father-, daughter-, son-, brother- or sister-in-law; grandparent or grandchild;
or spouse of a grandparent or grandchild.
(20)
Indirect ownership interest--Includes an ownership interest
through any other entities that ultimately have an ownership interest in the
provider or person, as defined in this section, at issue. (For example, an
individual has a 10 percent ownership interest in the entity at issue if they
have a 20 percent ownership interest in a corporation that wholly owns a subsidiary
that is a 50 percent owner of the entity at issue.)
(21)
Inducement--An attempt to entice or lure an action on
the part of another in exchange for, without limitation, a service, cash in
any amount, entertainment, or any item of value.
(22)
Inpatient institutional services--Inpatient services provided
by hospitals and long-term care facilities.
(23)
Licensing authority adverse action--Any action by a state
or federal licensing entity (including other similar authority) against conduct
that adversely affects the status of the license. Action includes revocation
or suspension of a license as well as reprimand, censure, or probation.
(24)
Managed Care Organization (MCO)--Any person that is authorized
or otherwise permitted by law to arrange for or provide a managed care plan.
(25)
Managed Care Plan--A plan under which a person undertakes
to provide, arrange for, pay for, or reimburse any part of the cost of any
health care service. A part of the plan must consist of arranging for or providing
health care services on a prepaid basis through insurance or otherwise, as
distinguished from indemnification against the cost of those services.
(26)
Medicaid Claims Administrator--The contractor that administers
the state's Medicaid program claims.
(27)
Medicaid Fraud Control Unit (MFCU)--The division within
the attorney general's office that is responsible for investigating suspected
Medicaid provider fraud and physical abuse or neglect of patients in institutional
settings.
(28)
Medicaid Integrity Division (MI)--The division within
the Commission's Office of Inspector General (OIG) that investigates fraud
and abuse and administratively enforces program violations through administrative
sanctions and/or refers for criminal investigation of suspected fraud or patient
abuse related to the provision and payment of services or items within the
Texas Medicaid Program.
(29)
Member of Household--With respect to a person, as defined
in this section, with whom they are sharing a common abode as part of a single-family
unit, including domestic employees, partners, and others who live together
as a family unit.
(30)
Office of Inspector General (OIG)--The office within the
Commission responsible for the investigation of fraud and abuse and with ensuring
program integrity within the Texas Medicaid Program and other health and human
services provided by the state and the enforcement of state law relating to
the provision of those services.
(31)
Open-end Provider Agreement--An agreement that has no
specific termination date and continues in force as long as both parties agree.
(32)
Operating agency--A state agency that operates any part
of the Texas Medicaid Program.
(33)
Overpayment--The amount paid by Medicaid to a provider
or person that exceeds the amount to which the provider or person is entitled
under §1902 of the Social Security Act for a service or item furnished
within the Medicaid program, and that is required to be refunded under §1903
of the Social Security Act. This also includes all overpayments specified
in Division 5 of this subchapter. Any funds received greater than that to
which the provider is entitled, whether obtained through error, misunderstanding,
abuse, or fraud is considered to be an overpayment.
(34)
Ownership interest--An interest in the capital, the stock
or the profits of the entity or any mortgage, deed, trust or note, or other
obligation secured in whole or in part by the property or assets of the person,
as defined in this section.
(35)
Payment Hold (Suspension of Payments)--An administrative
sanction that withholds all or any portion of payments due a provider until
the matter in dispute, including all investigation and legal proceedings,
between the provider and the Commission or an operating agency or its agent(s)
are resolved. This is a temporary denial of reimbursement under the Medicaid
program for items or services furnished by a specified provider.
(36)
Person--An individual, firm, association, partnership,
corporation, agency, institution, or other organization or legal entity.
(37)
Probationary Contract--A contract or provider agreement
for any period of time. It may include any special requirements or provisions
deemed necessary by the Inspector General to ensure the protection of the
program. It must be renewed by the Inspector General for the provider to continue
to participate in the program.
(38)
Practitioner--A physician or other individual licensed
or certified under state law to practice their profession.
(39)
Professionally Recognized Standards of Health Care--Statewide
or national standards of care, whether in writing or not, that professional
peers of the individual or entity whose provision of care is an issue, recognize
as applying to those peers practicing or providing care within the State of
Texas. When the Food and Drug Administration (FDA), the Centers for Medicare
and Medicaid Services (CMS), or the Public Health Service (PHS), has declared
a treatment modality not to be safe and effective, persons who employ such
a treatment modality will be deemed not to meet professionally recognized
standards of health care. This definition shall not be construed to mean that
all other treatments meet professionally recognized standards.
(40)
Program Violation--A failure to comply with a Medicaid
provider contract or agreement, the Texas Medicaid Provider Procedures Manual
or other official program publications or any state or federal statute or
regulation applicable to the Texas Medicaid Program, including any official
written explanation or interpretation of the above. Fraud and abuse are program
violations, but not all program violations are included in fraud and abuse.
Program violations are delineated in §371.1617 of this subchapter (relating
to Program Violations).
(41)
Provider
(A)
Any person or legal entity, including a managed care organization
and their subcontractors, furnishing Medicaid or other HHS services under
a provider agreement or contract in force with a Medicaid or other HHS operating
agency, a Medicaid Claims Administrator, and has a provider number issued
by the Commission or its designee to:
(i)
provide medical assistance, Medicaid, or any other HHS
service in any HHS program under contract or provider agreement with the Commission
or its designee; or
(ii)
provide third-party billing services under a contract
or provider agreement with the Commission or its designee.
(B)
An excluded provider ceases to be a "provider", as defined
in this section, upon the effective date of their exclusion, thus for purposes
of this subchapter, they become a "person", as defined in this section.
(42)
Provisional Contract--A contract or provider agreement
for any period of time. It may include any special requirements or provisions
deemed necessary by the Inspector General to ensure the protection of the
program. It must be renewed by the Inspector General for the provider to continue
to participate in the program.
(43)
Reasonable request--A request for the provider or person
to provide original records and documents, or copies of original records and
documents, or access to records, documents, or premises, as specified in §371.1643(e)
of this subchapter, made by a properly identified agent of the Commission
or another state or federal agency identified in §371.1643(e) of this
subchapter, hours that the business or premises is open for business.
(44)
Recipient--A person eligible for and covered by the Medicaid
or any other HHS program.
(45)
Recoupment of overpayment--A sanction imposed to recover
funds paid to the provider or person to which they were not entitled. Recoupment
of overpayments may be accomplished through a lump sum or monthly payments
by the provider or person to the Inspector General or, with the approval of
the Inspector General, a provider's or person's payments may be reduced by
a percentage, up to 100% of payments, to apply the unpaid funds to offset
the overpayment owed. The recoupment will apply to all previously submitted,
pending, and subsequently submitted claims to offset overpayments previously
made to the provider or person.
(46)
Requesting Agency--A governmental agency (or its authorized
representative or agent) that is authorized to review and reasonably is asking
to see a provider's documentation or records or that is directed or otherwise
authorized by federal or state statute to review medical records and/or other
documentation that providers must maintain and disclose to such agencies in
order to participate in the Medicaid program and records and documents necessary
for the Office of Inspector General to fulfill its statutory mandates to review
and investigate providers and persons for fraud and abuse; e.g., the Commission,
the relevant operating agency, Texas Attorney General's Medicaid Fraud Control
Unit, U.S. Department of Health and Human Services. See also the definition
for "Reasonable Request" listed in paragraph (43) of this section.
(47)
Restricted reimbursement--An administrative sanction that
limits or denies payment of a provider's Medicaid claims for specific procedures
for a specified time period for services that the provider has abused or has
billed inappropriately. The provider may be eligible to be paid for certain
other services.
(48)
Services--The types of medical assistance specified in §1905(a)
of the Social Security Act (42 U.S.C. §1396d (a)).
(49)
Solicitation--Offering to pay or agreeing to accept, directly
or indirectly, overtly or covertly any remuneration in cash or in kind to
or from another for securing or soliciting a patient or patronage for or from
a person licensed, certified, or registered or enrolled as a provider or otherwise
by a state health care regulatory or health and human service agency.
(50)
State health care program--Any program that has:
(A)
A state plan approved under Title XIX of the Social Security
Act (Medicaid);
(B)
Any program receiving funds under Title V of the Act or
from an allotment to a State under such title (Maternal and Child Health Services
Block Grant program); or
(C)
Any program receiving funds under Title XX of the Act or
from any allotment to a State under such title (Block Grants to States for
Social Services).
(51)
Subcontractor--Means:
(A)
an individual, agency or organization to which a disclosing
entity (provider) has contracted or delegated some of its management functions
or responsibilities of providing medical care to its patients; or
(B)
an individual, agency or organization with which a fiscal
agent has entered into a contract, agreement, purchase order, or lease to
obtain space, equipment, or services provided under the Medicaid agreement.
(52)
Suspension of payments (payment hold)--The withholding
of all or any portion of payments for items or services furnished by a specified
provider and due a provider until the matter in dispute between the provider
and the Department or agent is resolved.
(53)
Title XVIII--Title XVIII (Medicare) of the Social Security
Act.
(54)
Title XIX--Title XIX (Medicaid) of the Social Security
Act.
(55)
Title XX--Social Services Block Grant of the Social Security
Act.
§371.1603.Overview of Inspector General Responsibility Relating to Investigation, Referral and Administrative Enforcement in Medicaid.
(a)
The Office of Inspector General (the Inspector General),
through the Medicaid Integrity division, is responsible for minimizing the
opportunity for fraud, abuse, overpayments, and waste within the Medicaid
and other HHS programs, whether the fraud or abuse was committed by providers,
recipients, or other persons and for protecting recipients of federally funded
health care programs from unsafe practitioners. Medicaid Integrity or the
Inspector General may take appropriate action as authorized in Subchapters
A, B, and G of this chapter to protect recipients and the program when persons
have committed, or are suspected of committing, fraud or abuse. Such actions
may include administrative actions and/or sanctions and referral to appropriate
law enforcement agencies for criminal investigation. Medicaid Integrity or
the Inspector General may take action against any provider or person associated
with any HHS program or service as it relates to fraud, abuse, overpayments,
waste, or program violations of those HHS programs or services, or for any
of the violations for which Medicaid Integrity or the Inspector General may
take action against providers or persons associated with the Medicaid program,
as described in this subchapter. Additionally, to protect HHS programs, Medicaid
Integrity or the Inspector General may take an administrative action, sanction,
impose damages or penalties, or abate, deny, or postpone a decision to enroll
a provider or person in a HHS program or for a HHS service, based upon an
investigation or finding in the Medicaid or other HHS programs. To protect
the Medicaid program, Medicaid Integrity may also take an administrative action,
sanction, impose damages or penalties, or abate, deny, or postpone a decision
to enroll a provider or person in a Medicaid or other HHS program or for a
Medicaid or other HHS service, based upon the investigative findings related
to an investigation or finding of a provider or person or their principals
or affiliates within a HHS program or receiving a HHS service.
(b)
Not all actions resulting in overpayment to a provider
are necessarily fraudulent. Some circumstances could result in the referral
of a Medicaid provider to the Attorney General's Medicaid Fraud Control Unit
or Civil Fraud Division. Other circumstances could result in administrative
action rather than referral for judicial action or criminal prosecution. These
actions, or sanctions, range from an educational notice to the provider explaining
their error, to contract cancellation and/or exclusion from participation
in the Medicaid (Title XIX), Title XX, and Title V programs.
(c)
Investigation. When Medicaid Integrity receives information
regarding a possible program violation either from its review systems or through
a complaint or referral filed by another agency or person, Medicaid Integrity
initiates an investigation. After completing its preliminary investigation,
Medicaid Integrity or the Inspector General may, at its discretion, initiate
settlement discussions with the person who is the subject of the investigation.
If the matter cannot reasonably be settled or if Medicaid Integrity determines
that further investigation is required before the propriety of settlement
or other enforcement can be evaluated, Medicaid Integrity may conduct a full
investigation of the case. A Medicaid Integrity case remains open until the
investigation is complete, the case is reasonably settled, Medicaid Integrity
makes an administrative determination that closes the case for lack of evidence
or appropriate administrative enforcement, and/or legal action is completed.
At any time during the investigative or enforcement process, the Inspector
General maintains the authority to settle administrative cases, impose payment
holds, or request the Office of the Attorney General to obtain an injunction
to prevent a person from disposing of an asset identified by the OIG as potentially
subject to recovery by the OIG due to the person's fraud or abuse.
(d)
Referral for Legal Action. Medicaid Integrity refers all
cases of suspected Medicaid fraud or patient abuse or neglect to the Medicaid
Fraud Control Unit (MFCU) or the Civil Fraud Division (CFD) at the Office
of the Attorney General (OAG) for investigation regarding the need for criminal
or civil prosecution. If the MFCU fails to act on a matter within 30 days
of receiving a referred case from Medicaid Integrity or returns a case to
Medicaid Integrity without initiating prosecution, Medicaid Integrity may
refer the matter to an appropriate prosecuting authority or a collection agency.
Nothing in these rules is intended to prevent concurrent administrative, civil,
and/or criminal investigation and action regarding suspected fraud or patient
abuse or neglect. Subject to express statutory limitations, Medicaid Integrity
and the Inspector General may proceed with recoupment and/or administrative
enforcement concurrently with judicial prosecution of the same matter.
(e)
Administrative Enforcement. Based upon the nature and severity
of the program violation, the provider's previous history of violations, evidence
of the provider's knowledge and intent, and other relevant factors, Medicaid
Integrity and the Inspector General select enforcement measures from the three
categories set forth below and in more detail infra at §§371.1629,
371.1631, 371.1633, 371.1643, 371.1645, 371.1647, 371.1649, 371.1651, 371.1653,
371.1655, 371.1657, 371.1659, 371.1661, 371.1663, 371.1665, 371.1667, 371.1669,
371.1671, 371.1673, 371.1675, 371.1677, 371.1679, 371.1681, 371.1683, 371.1685,
371.1687, 371.1689, 371.1701, 371.1703, 371.1705, 371.1707, 371.1721, 371.1723,
371.1725, 371.1727, 371.1729, 371.1731, 371.1733, 371.1735, 371.1737, 371.1739,
and 371.1741 of this subchapter.
(1)
Administrative Actions--Medicaid Integrity or the Inspector
General may impose an administrative action to provide safeguards for future
compliance or refer a matter for additional review or enforcement; e.g., education,
referral to licensing board, referral for judicial action. The imposition
of administrative actions does not give rise to due process notice or hearing
requirements.
(2)
Sanctions--Sanctions may directly impact a person's ability
to keep or receive payments and/or the person's participation in the Medicaid
program; e.g., exclusion from program participation, recoupment of overpayments,
or payment hold. Imposition of sanctions triggers due process notice and hearing
requirements.
(3)
Damages and Penalties (formerly "Civil Monetary Penalties")--The
imposition of damages or penalties for program violations (e.g., false claims,
specified managed care acts or omissions) directly impacts a person's property
interests and, therefore, triggers due process notice and hearing requirements.
§371.1605.Statutory Authority [
The statutory
authority
[
§371.1607.Confidentiality of Investigation Records.
All information and materials subpoenaed or compiled by the Inspector
General in connection with an investigation are confidential and not subject
to disclosure under Chapter 552 of the Texas Open Records Act, and not subject
to disclosure, discovery, subpoena, or other means of legal compulsion for
their release to anyone other than the Inspector General or its employees
or agents involved in the investigation conducted by the Inspector General,
except that this information may be disclosed to the Office of the Attorney
General and law enforcement agencies.
§371.1609.Medicaid Integrity and the Inspector General Responsibilities in Relation to Medicaid Provider Fraud and Abuse.
The Inspector General's responsibilities in relation to Medicaid fraud
and abuse include the following:
(1)
establishing rules for minimizing the opportunity for fraud
and abuse;
(2)
establishing and maintaining methods and criteria for detecting
and identifying cases of possible fraud or abuse;
(3)
establishing the methods for referring suspected fraud
or physical abuse and neglect cases for investigation;
(4)
referring cases where fraud or physical abuse appears to
exist to the appropriate law enforcement agencies for prosecution;
(5)
cooperating with the Medicaid Fraud Control Unit, Office
of the Attorney General, by furnishing information and data and serving as
witnesses, when requested;
(6)
recouping all overpayments and taking other administrative
sanctions and actions;
(7)
investigating cases of possible fraud or abuse;
(8)
conducting an integrity review on complaints of Medicaid
fraud, abuse, or physical abuse or neglect involving criminal conduct and
referring suspected cases of Medicaid provider fraud and physical abuse or
neglect to the Attorney General's Medicaid Fraud Control Unit, provided that
the criminal referral does not preclude the Inspector General from continuing
its investigation of the provider, which investigation may lead to the imposition
of appropriate administrative or civil sanctions;
(9)
referring a Medicaid provider to the Attorney General's
Medicaid Fraud Control Unit when a provider's records are being withheld,
concealed, destroyed, fabricated, or falsified. Such referral does not preclude
the Inspector General from continuing its investigation of the provider;
(10)
investigating Medicaid recipient fraud; and
(11)
imposing administrative monetary penalties and damages
against providers, individuals, contractors, or recipients involved with fraud,
abuse, or physical abuse or neglect.
§371.1611.Award for Reporting Medicaid Fraud, Abuse, or Overcharges.
(a)
The Inspector General may grant an award to a person who
reports activity that constitutes fraud or abuse of funds in the Medicaid
program or reports overcharges in the program if the Inspector General determines
that the disclosure results in the recovery of a damage or penalty imposed
under §32.039, Human Resources Code, and described in §371.1721
et seq. of this subchapter. The Inspector General may not grant an award to
a person in connection with a report, if the Inspector General or the Attorney
General had:
(1)
independent knowledge of the activity; or
(2)
an open complaint or investigation on the provider or person.
(b)
A person, who brings an action under Chapter 36, Subchapter
C, Human Resources Code, is not eligible for an award under this section.
(c)
A person who makes a report under this section must make
known at the time of the report of the complaint that they are reporting the
potential fraud or abuse in accordance with this section.
(d)
This section applies only to a report that occurs on or
after the effective date of the administrative rule for this section. A report
that occurs before the effective date of this section is governed by the law
in effect at the time of the report.
(e)
The Inspector General shall determine, at their discretion,
the amount of an award. The award may not exceed five percent (5%) of the
amount of the administrative damage or penalty collected under §371.1721
et seq. of this subchapter that resulted from the person's disclosure. In
determining the amount of the award, the Inspector General shall consider
how important the disclosure is in ensuring the fiscal integrity of the program.
The Inspector General may also consider whether the individual participated
in the fraud, abuse, or overcharge.
(f)
Any award made to a person is contingent on collection
of the funds to be awarded, prior to the payment of the award to the person.
Recovery of funds including overpayments, damages and penalties, and any other
collections from the provider or person committing the fraud or abuse will
be applied in the following order:
(1)
the overpayment;
(2)
the Inspector General's "method of finance" from the collected
damages and penalties;
(3)
the Inspector General's investigative costs from the collected
damages and penalties;
(4)
other costs of recovery from the collected damages and
penalties;
(5)
the person's award from the collected damages and penalties;
and
(6)
any other collections.
(g)
The priority of application and distribution of the collected
funds delineated in subsection (f) of this section may be altered, at the
discretion of the Inspector General, due to state or federal statute or other
unforeseen issues.
(h)
The Inspector General may only calculate awards based on
the collected state general revenue portion of the penalties and damages.
If the Commission enters into global or national settlements where the federal
government or other agencies receive a portion of the amount of damages or
penalties, the award may only be calculated on the remaining state general
revenue share collected.
(i)
The Inspector General may not award a distribution unless
the Inspector General has met their "method of finance", for the biennium,
from damages and penalties collected under §371.1721 et seq. of this
subchapter.
(j)
The person reporting a complaint has no discretion or authority
over an Inspector General decision to allow a payment plan or to decide the
terms of that payment plan.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403707
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1613, 371.1615, 371.1617, 371.1619
The new rules are proposed under §§531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1613.Program Authority.
When established by prima facie evidence, all Medicaid program violations
(defined supra at §371.1617 of this subchapter) are subject to administrative
enforcement and/or criminal or other appropriate judicial action. The method
of enforcement reflects the evidence of the intent of the non-compliant provider
or person. Unintentional program violations are subject to administrative
actions and sanctions. Violations the provider or person knew or should have
known were false and involved program or patient abuse or fraud are also subject
to administrative monetary penalties, as well as criminal or other judicial
prosecution. In accordance with 42 Code of Federal Regulations (CFR) §455.13(a),
the Inspector General, through Medicaid Integrity, has established methods
and criteria for identifying suspected fraud cases. Criteria to establish
suspected fraud is based upon evidence of intentional deception or misrepresentation
or upon a program violation or violation of other governing statutory law,
including without limitation neglect, that appears to have been committed
intentionally or with knowing and willful disregard for program rules.
§371.1615.Provider Responsibility.
(a)
Participation in the Medicaid program charges all providers
and persons, including managed care organizations, with knowledge of the federal
and state law that governed Medicaid during the period of time that the program
was billed. This includes knowledge of the Texas Medicaid Provider Procedures
Manual and other official program manuals and publications, including all
official interpretations or explanations given to the provider or person regarding
the services that they provide.
(b)
Providers are charged with the responsibility of ensuring
and acquiring appropriate Medicaid enrollment and required licenses or certifications
of all individuals providing services in the provider's office or operation.
Providers are also responsible for ensuring, through review of the Commission's
Exclusion Database, that all employees, contractors, and other Medicaid providers,
within the provider's office or operation, are not excluded from participation
in the Medicaid program. The potential sanctions, damages, and penalties imposed
for failure to ensure compliance with these requirements are addressed more
specifically in §371.1677 of this subchapter.
(c)
A Medicaid provider is responsible for the provider's own
actions and omissions, as well as the actions and omissions of the provider's
employees, contractors, and agents. This responsibility, however, does not
absolve a provider's employees, contractors, and agents from their own personal
responsibility and liability.
§371.1617.Program Violations.
Following is a non-exclusive list of grounds/criteria for Medicaid
Integrity's and the Inspector General's administrative enforcement and/or
referral for criminal, civil, or licensure or certification investigation
and judicial action regarding program violations by any provider or person.
Violations result from a provider or person who knew or should have known
the following were violations. The headings of each group listed below are
provided solely for organization and convenience and are not elements of any
program violation.
(1)
Claims and Billing.
(A)
submitting or causing to be submitted a false statement
or misrepresentation, or omitting pertinent facts when claiming payment under
Medicaid or when supplying information used to determine the right to payment
under Medicaid;
(B)
submitting or causing to be submitted a false statement,
information or misrepresentation, or omitting pertinent facts to obtain greater
compensation than the provider is legally entitled to;
(C)
submitting or causing to be submitted a false statement,
information or misrepresentation, or omitting pertinent facts to meet prior
authorization requirements;
(D)
submitting or causing to be submitted under Title XVIII
(Medicare) or a state health care program claims or requests for payment containing
unjustified charges or costs for items or services that substantially exceed
the person's usual and customary charges or costs for those items or services
to the public or the private pay patients unless otherwise authorized by law;
(E)
submitting or causing to be submitted claims with a pattern
of inappropriate coding or billing that results in excessive costs to the
Medicaid Program;
(F)
billing or causing claims to be filed for services or merchandise
that were not provided to the recipient;
(G)
submitting or causing to be submitted a false statement
or misrepresentation that, if used, has the potential of increasing any individual
or state provider payment rate or fee;
(H)
submitting or causing to be submitted to the Medicaid Program
a cost report containing costs not associated with the Medicaid Program or
not permitted by Medicaid program policies;
(I)
presenting or causing to be presented to an operating agency
or its agent a claim that contains a statement or representation that the
person knows or should have known to be false;
(J)
billing or causing claims to be submitted to the Medicaid
program for services or items furnished personally by, at the medical direction
of, or on the prescription or order of a person who is excluded from the Texas
Medicaid program or Medicare or has been excluded from and not reinstated
within the Texas Medicaid program or Medicare;
(K)
billing or causing claims to be submitted the Medicaid
program for services or items that are not reimbursable by the Medicaid program;
(L)
billing or causing claims to be submitted to the Medicaid
program for a service or item which requires a prior order or prescription
by a licensed health care practitioner when such order or prescription has
not been obtained;
(M)
billing or causing claims to be submitted to the Medicaid
program for an item or service substituted without authorization for the item
or service ordered, prescribed or otherwise designated by the Medicaid program;
(N)
billing or causing claims to be submitted to the Medicaid
program by a provider or person who is owned or controlled, directly or indirectly,
by an excluded person; and
(O)
billing or causing claims to be submitted to the Medicaid
program by a provider or person for charges in which the provider discounted
the same services for any other types of patient.
(2)
Records and Documentation.
(A)
failing to maintain for the period of time required by
the rules relevant to the provider in question records and other documentation
that the provider is required by federal or state law or regulation or by
contract to maintain in order to participate in the Medicaid program or to
provide records or documents upon written request for any records or documents
determined necessary by the Inspector General to complete their statutory
functions related to a fraud and abuse investigation. Such records and documentation
include, without limitation, those necessary:
(i)
to verify specific deliveries, medical necessity, medical
appropriateness, and adequate written documentation of items or services furnished
under Title XIX or Title XX;
(ii)
to determine in accordance with established rates appropriate
payment for those items or services delivered;
(iii)
to confirm the eligibility of the provider to participate
in the Medicaid program; e.g., medical records (including, without limitation,
x-rays, laboratory and test results, and other documents related to diagnosis),
billing and claims records; cost reports, managed care encounter data, financial
data necessary to demonstrate solvency of risk-bearing providers, and documentation
(including, without limitation, ownership disclosure statements, articles
of incorporation, by-laws, and corporate minutes) necessary to demonstrate
ownership of corporate entities; and
(iv)
to verify the purchase and actual cost of products;
(B)
failing to disclose fully and accurately or completely
information required by the Social Security Act and by 42 CFR Part 455, Subpart
B; 42 CFR Part 420, Subpart C. 42 CFR §1001.1101; and 42 CFR Part 431;
(C)
failing to provide immediate access, upon request by a
requesting agency, to the premises or to any records, documents, and other
items or equipment the provider is required by federal or state law or regulation
or by contract to maintain in order to participate in the Medicaid program
(see subparagraphs (A) and (B) of this paragraph), or failing to provide records,
documents, and other items or equipment upon written request that are determined
necessary by the Inspector General to complete their statutory functions related
to a fraud and abuse investigation, including without limitation all requirements
specified in §371.1643(e) of this subchapter. "Immediate access" is deemed
to be within 24 hours of receiving a written request, unless the requesting
agency has reason to suspect fraud or abuse or to believe that requested records,
documents, or other items or equipment are about to be altered or destroyed,
thereby necessitating access at the actual time the request is presented or,
in the opinion of the Inspector General, the request may be completed at the
time of the request and/or in less than 24 hours;
(D)
developing false source documents or failing to sign source
documents or to retain supporting documentation or to comply with the provisions
or requirements of the operating agency or its agents pertaining to electronic
claims submittal; and
(E)
failing as a provider, whether individual, group, facility,
managed care or other entity, to include within any subcontracts for services
or items to be delivered within Medicaid all information that is required
by 42 CFR §434.10(b).
(3)
Program-Related Convictions.
(A)
pleading guilty or nolo contendere, agreeing to an order
of probation without adjudication of guilt under deferred adjudication, or
being a defendant in a court judgment or finding of guilt for a violation
relating to performance of a provider agreement or program violation of Medicare,
the Texas Medicaid Program, or any other state's Medicaid Program;
(B)
pleading guilty or being convicted of a violation of state
or federal statutes relating to dangerous drugs, controlled substances, or
any other drug-related offense;
(C)
pleading guilty of, being convicted of, or engaging in
conduct involving moral turpitude;
(D)
pleading guilty or being convicted of a violation of state
or federal statutes relating to fraud, theft, embezzlement, breach of fiduciary
responsibility, or other financial misconduct relating to the delivery of
a health care item or service or relating to any act or omission in a program
operated or financed by any federal, state, or local government agency;
(E)
being convicted in connection with the interference with
or obstruction of any investigation into any criminal offense that would support
mandatory exclusion under §371.1655 of this subchapter or any offense
listed within paragraph (3) of this subsection regarding program-related convictions;
and
(F)
being convicted of any offense that would support mandatory
exclusion under §371.1655 of this subchapter.
(4)
Provider Eligibility.
(A)
failing to meet standards required for licensure, when
such licensure is required by state or federal law, administrative rule, provider
agreement, or provider manual for participation in the Medicaid Program;
(B)
being excluded, suspended or otherwise sanctioned within
any federal program involving the provision of health care;
(C)
being excluded, suspended or otherwise sanctioned under
any state health care program for reasons bearing on the person's professional
competence, professional performance or financial integrity;
(D)
failing to fully and/or correctly complete a Provider Enrollment
Agreement, Provider Re-Enrollment Agreement or other enrollment form prescribed
by the relevant operating agency or its agent for enrollment; and.
(E)
loss or forfeiture of corporate charter.
(5)
Program Compliance
(A)
failing to comply with the terms of the Medicaid contract
or provider agreement, assignment agreement, the provider certification on
the Medicaid claim form, or rules or regulations published by the commission
or a Medicaid operating agency;
(B)
violating any provision of the Human Resources Code, Chapter
32 or 36, or any rule or regulation issued under the Code;
(C)
submitting a false statement or misrepresentation or omitting
pertinent facts on any application or any documents requested as a prerequisite
for Medicaid participation;
(D)
refusing to execute or comply with a provider agreement
or amendments when requested;
(E)
failing to correct deficiencies in provider operations
after receiving written notice of them from an operating agency, the commission
or their authorized agents;
(F)
failing to abide by applicable federal and state law regarding
handicapped individuals or civil rights;
(G)
failing to comply with Medicaid policies, published Medicaid
bulletins, policy notification letters, provider policy or procedure manuals,
contracts, statutes, rules, regulations, or interpretation previously sent
to the provider by an operating agency or the commission regarding any of
the authorities listed above, including statutes or standards governing occupations;
(H)
failing to fully and accurately make any disclosure required
by the Social Security Act, §1124 or §1126;
(I)
failing to disclose information about the ownership of
a subcontractor with whom the person has had business transactions in an amount
exceeding $25,000 during the previous 12 months or about any significant business
transactions (as defined by HHS) with any wholly-owned supplier or subcontractor
during the previous five years;
(J)
failing, as a hospital, to comply substantially with a
corrective action required under the Social Security Act, §1886(f)(2)(B);
(K)
failing to repay or make arrangements that are satisfactory
to the commission to repay identified overpayments or other erroneous payments
or assessments identified by the commission or any Medicaid operating agency;
(L)
committing an act described in the Social Security Act, §1128A
(mandatory exclusion) or §1128B (permissive exclusion);
(M)
defaulting on repayments of scholarship obligations or
items relating to health profession education made or secured, in whole or
in part, by HHS or the state when they have taken all reasonable steps available
to them to secure repayment;
(N)
soliciting or causing to be solicited, through offers of
transportation or otherwise, Medicaid recipients for the purpose of delivering
to those recipients health care items or services;
(O)
marketing, supplying or selling confidential information
(e.g., recipient names and other recipient information) for a use that is
not expressly authorized by the Medicaid program; and
(P)
failing to abide by applicable statutes and standards governing
providers.
(6)
Delivery of Health Care Services.
(A)
failing to provide health care services or items to Medicaid
recipients in accordance with accepted medical community standards or standards
required by statute, regulation, or contract, including statutes and standards
that govern occupations;
(B)
furnishing or ordering health care services or items for
a recipient-patient under Title XVIII or a state health care program that
substantially exceed the recipient's needs, are not medically necessary, are
not provided economically or are of a quality that fails to meet professionally
recognized standards of health care; and
(C)
engaging in any negligent practice that results in death,
injury, or substantial probability of death or injury to the provider's patients;
(7)
Improper Collection and Misuse of Funds.
(A)
charging recipients for services when payment for the services
was recouped by Medicaid for any reason;
(B)
misapplying, misusing, embezzling, failing to promptly
release upon a valid request, or failing to keep detailed receipts of expenditures
relating to any funds or other property in trust for a Medicaid recipient;
(C)
failing to notify and reimburse the relevant operating
agency or the commission or their agents for services paid by Medicaid if
the provider also receives reimbursement from a liable third party;
(D)
rebating or accepting a fee or a part of a fee or charge
for a Medicaid patient referral;
(E)
requesting from a recipient in payment for services or
items delivered within the Medicaid program any amount that exceeds the amount
Medicaid paid for such services or items, with the exception of any cost-sharing
authorized by the program; and
(F)
requesting from a third party liable for payment of the
services or items provided to a recipient under the Medicaid program, any
payment other than as authorized at 42 CFR §447.20.
(8)
Licensure Actions
(A)
having a voluntary or involuntary action taken by a licensing
or certification agency or board that requires the provider or employee to
comply with professional practice requirements of the board after the board
receives evidence of noncompliance with licensing or certification requirements;
and
(B)
having its license to provide health care revoked, suspended,
or probated by any state licensing or certification authority, or losing a
license or certification, because of action based on assessment of the person's
professional competence, professional performance, or financial integrity,
non-compliance with Health and Safety Code, statutes governing occupations,
or surrendering a license or certification while a formal disciplinary proceeding
is pending before licensing or certification authorities when the proceeding
concerns the person's professional competence, professional performance, or
financial integrity;
(9)
Managed Care Organizations and Persons Providing Services
or Items Through Managed Care. (Note: This subsection includes those program
violations that are unique to managed care; paragraphs (1) through (8) and
(11) of this subsection also apply to managed care.)
(A)
failing, as a managed care organization (MCO), primary
care case management system (PCCM), an association, group or individual health
care provider furnishing services through an MCO, to provide to recipient
enrollee a health care benefit, service or item that the organization is required
to provide under its contract with an operating agency;
(B)
failing, as a managed care organization, a PCCM or an association,
group or individual health care provider furnishing services through an MCO,
to provide to an individual a health care benefit, service or item that the
organization is required to provide by state or federal law, regulation or
program rule;
(C)
engaging, as a managed care organization, in actions that
indicate a pattern of wrongful denial or payment for a health care benefit,
service or item that the organization is required to provide under its contract
with an operating agency;
(D)
engaging, as a managed care organization, in actions that
indicate a pattern of wrongful delay of at least 45 days or a longer period
specified in the contract with an operating agency, not to exceed 60 days,
in making payment for a health care benefit, service or item that the organization
is required to provide under its contract with an operating agency;
(E)
engaging, as a managed care organization, a PCCM or an
association, group or individual health care provider furnishing services
through managed care, in a fraudulent activity in connection with the enrollment
in the organization's managed care plan of an individual eligible for medical
assistance or in connection with marketing the organization's services to
an individual eligible for medical assistance.
(F)
discriminating against enrollees or prospective enrollees
on any basis, including, without limitation, age, gender, ethnic origin or
health status;
(G)
failing as a managed care organization, to comply with
any term within a contract with a Medicaid operating agency to provide health
care services to Medicaid recipients; and
(H)
failing, as a managed care organization, reasonably to
provide to the relevant operating agency, upon its written request, encounter
data and/or other data contractually required to document the services and
items delivered by or through the MCO to Medicaid recipients.
(10)
Cost Report Violations.
(A)
reporting costs of noncovered or nonchargeable services
as covered items; e.g., incorrectly apportioning or allocating costs on cost
reports; including costs of noncovered services, supplies or equipment in
allowable costs; arrangements between providers and employees, related parties,
independent contractors, suppliers, and others that appear to be designed
primarily to overstate the costs to the program through various devices (such
as commissions or fee splitting) to siphon-off or conceal illegal profits;
(B)
reporting costs not incurred or which were attributable
to nonprogram activities, other enterprises or personal expenses;
(C)
including unallowable cost items on a cost report;
(D)
manipulating or falsifying statistics that result in overstatement
of costs or avoidance of recoupment, such as incorrectly reporting square
footage, hours worked, revenues received, or units of service delivered;
(E)
claiming bad debts without first genuinely attempting to
collect payment;
(F)
depreciating assets that have been fully depreciated or
sold or using an incorrect basis for depreciation; and
(G)
reporting costs above the cost to the related party.
(11)
Kickbacks and Referrals.
(A)
violating any of the provisions specified in §371.1721(b)
of this subchapter relating to kickbacks, bribes, rebates, referrals, inducements,
or solicitation;
(B)
as a physician, referring a Medicaid patient to an entity
with which the physician has a financial relationship for the furnishing of
designated health services, payment for which would be denied under Title
XVIII (Medicare) pursuant to §1877 and §1903(s) of the Social Security
Act (Stark I and II). Neither federal financial participation nor this state's
expenditures for medical assistance under the state Medicaid plan may be used
to pay for services or items delivered within the program and within a relationship
that violates Stark I or II. The Commission hereby references and incorporates
within these rules the federal regulations promulgated pursuant to Stark I
and II, and expressly recognizes all exceptions to the prohibitions on referrals
established within those rules.
(C)
failing to disclose documentation of financial relationships
necessary to establish compliance with Stark I and II, as set forth in subparagraph
(B) of this paragraph; and
(D)
offering to pay or agreeing to accept, directly or indirectly,
overtly or covertly any remuneration in cash or in kind to or from another
for securing or soliciting a patient or patronage for or from a person licensed,
certified, or registered or enrolled as a provider or otherwise by a state
health care regulatory or health and human service agency.
§371.1619.Prima Facie Evidence.
Prior to imposing an administrative action, sanction, or damage or
penalty (set forth in Divisions 3-6 of this Subchapter), the Inspector General
shall establish by prima facie evidence the occurrence of the program violation(s)
or affiliate relationships on which the administrative enforcement will be
based.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403708
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1629, 371.1631, 371.1633
The new rules are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1629.Use of Administrative Actions.
(a)
The Inspector General utilizes administrative actions to
address identified program violations through preventive means or by referral
for review by an appropriate state or federal agency. The Inspector General
may impose an administrative action independently or in conjunction with other
enforcement measures. An administrative action need not be taken prior to
the imposition of an administrative sanction.
(b)
Administrative actions do not trigger due process. Subsequent
sanctions taken by the Inspector General or another enforcement body as a
result of a referral for additional review made pursuant to an administrative
action may require due process, but the administrative action itself does
not.
§371.1631.Non-exclusive List of Administrative Actions.
(a)
The Inspector General may take any of the following administrative
actions, singly or in combination, to prevent future program violations and/or
to verify compliance with program requirements:
(1)
transfer to a closed-end contract or provider agreement
for a specified period of time or a provisional or probationary contract or
provider agreement with variable case-by-case options applied to the terms
and conditions;
(2)
attendance at provider education sessions;
(3)
prior authorization of selected services--Failure to submit
and receive prior authorization prior to the service being rendered and billed
would result in denial of the claim;
(4)
prepayment review - Entails a review of all, or certain
specific services of an individual provider before payment. It is a different
process than the Random Prepayment Review specified in Subchapter B, §371.29;
(5)
postpayment review - Entails a review of all, or certain
specific services of an individual provider after payment;
(6)
attendance in informal or formal provider corrective action
meetings;
(7)
submission of additional documentation or justification
that is not normally required to accompany submitted claims. Failure to submit
legible documentation or justification requested would result in denial of
the claim;
(8)
oral, written, or personal educational contact with the
provider;
(9)
posting of a surety bond or providing a letter of credit,
as provided in Subchapter B, §371.23; and
(10)
having a subpoena served to compel an appearance for testimony
or the production of relevant evidence, as determined by the Inspector General,
and as provided in Subchapter B, §371.21 and §371.1633 of this subchapter.
(b)
Referral for additional review or investigation:
(1)
referral to peer review outside the Commission or operating
agency;
(2)
referral to the appropriate state licensing board;
(3)
referral to the Department of Health and Human Services,
including referral for action under the Civil Monetary Penalties Law (the
Social Security Act, §1128);
(4)
referral for fraud investigation and criminal fraud prosecution;
(5)
referral for civil fraud prosecution and imposition of
civil damages or penalties;
(6)
referral for recovery of overpayments and administrative
penalties and damages through judicial means;
(7)
referral to a collection agency, or any other collection
authority, for recovery of overpayments and administrative penalties and damages;
(8)
referral to credit bureaus for failure to pay all imposed
recoupments and damages and penalties; and
(9)
all other referrals required to perform statutory or regulatory
functions.
§371.1633.Subpoena Authority.
(a)
The Inspector General may, upon a determination of good
cause, and with the approval of the Executive Commissioner or the Executive
Commissioner's designee, issue a subpoena, in connection with an investigation
conducted by the Inspector General, to compel the attendance of a relevant
witness or the production of relevant evidence as determined by the Inspector
General. "Good cause" will be determined from the specific circumstances of
the investigation. Circumstances that may result in a determination of "good
cause" include, but are not limited to, the following situations:
(1)
A provider's failure to comply with an OIG investigative
demand for the attendance of a relevant witness or the production of relevant
evidence;
(2)
A provider's past history of failing to comply with an
OIG investigative demand for the attendance of a relevant witness or the production
of relevant evidence;
(3)
A reasonable belief that, without the issuance of a subpoena,
relevant evidence will be compromised;
(4)
A determination that there is an immediate threat to the
health or safety of a Medicaid recipient; or
(5)
A substantial likelihood of loss of state or federal funds.
(b)
The subpoena may be served personally or by certified mail.
Failure to comply with a subpoena will result in the Inspector General, through
the Attorney General, filing suit to enforce the subpoena in a state district
court.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403709
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1643, 371.1645, 371.1647, 371.1649, 371.1651, 371.1653, 371.1655, 371.1657, 371.1659, 371.1661, 371.1663, 371.1665, 371.1667, 371.1669, 371.1671, 371.1673, 371.1675, 371.1677, 371.1679, 371.1681, 371.1683, 371.1685, 371.1687, 371.1689
The new rules are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1643.Use of Sanctions.
(a)
In response to program violations in the Medicaid and other
HHS programs, including but not limited to any substantiated reason specified
in §371.1617 of this subchapter, the Inspector General may impose against
a provider or person, as defined in §371.1601 of this subchapter, any
one or combination of sanctions specified in subsection (b) of this section.
Any sanctions imposed for violations of non-Medicaid, HHS programs will be
in accordance with the applicable law governing the specific HHS program.
The imposition of an administrative action is not prerequisite to the use
of a sanction, although sanctions may be imposed in conjunction with other
administrative enforcement measures.
(b)
Administrative sanctions include:
(1)
exclusion from participation in the Titles V, XIX (Medicaid),
XX, CHIP, and other HHS programs for a specified period of time, permanently,
or indefinitely; (In this subchapter, exclusion from Medicaid automatically
precipitates concurrent exclusion from Titles V, XX, and CHIP.)
(2)
suspension of payments (payment hold) to a provider in
Titles V, XIX (Medicaid), XX, CHIP, and other HHS programs;
(3)
recoupment of overpayments in Titles V, XIX (Medicaid),
XX, CHIP, and other HHS programs;
(4)
recoupment of overpayments projected from a sampling process
in Titles V, XIX (Medicaid), XX, CHIP, and other HHS programs;
(5)
restricted reimbursement for a specified period of time
or indefinitely in Titles V, XIX (Medicaid), XX, CHIP, and other HHS programs
- Specific services will not be reimbursed to an individual provider during
the time the provider is on restricted reimbursement; however, other services,
as determined by the Inspector General, will be reimbursed; and
(6)
cancellation of provider contract or provider agreement
in Titles V, XIX (Medicaid), XX, CHIP, and other HHS programs.
(c)
Providers or Persons Subject to Sanctions.
(1)
Providers or persons furnishing services or items directly
or indirectly for the Medicaid or other HHS programs are subject to sanctions
for violations of the program;
(2)
Any affiliates of a provider or person as specified in
subsection (d) of this section.
(3)
Providers or persons in violation of any of the violations
set forth in Subchapter G of this Chapter; and
(4)
Providers or persons committing other program violations
for which the Inspector General determines that sanctions are appropriate.
(d)
Affiliate Relationship.
(1)
A provider or person, as defined in §371.1601 of this
Subchapter, is deemed to have an affiliate relationship with another provider
or person, if they:
(A)
have a direct or indirect ownership interest (or any combination
thereof) of 5% or more in the entity;
(B)
are the owner of a whole or part interest in any mortgage,
deed of trust, note or other obligation secured (in whole or in part) by the
entity or any of the property assets, thereof, in which whole or part interest
is equal to or exceeds 5% of the total property and assets of the entity;
(C)
are an officer or director, if organized as a corporation;
(D)
are a partner, if organized as a partnership;
(E)
are an agent or consultant;
(F)
are a managing employee, that is, a person (including a
general manager, business manager, administrator or director) who exercises
operational or managerial control over a person or part thereof, or directly
or indirectly conducts the day-to-day operations of the entity or part thereof;
(G)
are providers or person(s) associated with one another
so that any one of them, directly or indirectly, controls or has the power
to control another in whole or in part;
(H)
share any of the following: e.g. tax identification numbers,
social security numbers, bank accounts, telephone number, business location.
(This is not an all inclusive list); or
(I)
was formerly described in subsection (d)(1) of this section,
but is no longer described, because of a transfer of ownership or control
interest to an immediate family member or a member of the person's household
as defined in subsection (d)(3) of this section, in anticipation of, or following
a conviction, assessment of damages or penalties under §371.1721 et seq.
of this subchapter, or imposition of a sanction.
(2)
The Inspector General may sanction an affiliate of a provider
or person, as defined in §371.1601 of this subchapter, if a provider
or person with an affiliate relationship:
(A)
has been convicted of a criminal offense related to the
Medicaid or Medicare program or as described in §§1128(a) and 1128(b)(1),
(2), or (3) of the Social Security Act;
(B)
has had damages and penalties or assessments imposed under §371.1721
et seq. of this subchapter or §1128A of the Social Security Act; or
(C)
has been excluded from participation in Medicaid, Medicare,
or any state's health care program.
(3)
For purposes of this section, the following terms are defined
as:
(A)
Agent means any person who has express or implied authority
to obligate or act on behalf of a provider or person, as defined in §371.1601
of this subchapter.
(B)
Immediate family member means, a person's husband, wife,
or spouse; natural or adoptive parent; child or sibling; stepparent, stepchild,
stepbrother or stepsister; father-, daughter-, son-, brother- or sister-in-law;
grandparent or grandchild; or spouse of a grandparent or grandchild.
(C)
Indirect ownership interest includes an ownership interest
through any other entities that ultimately have an ownership interest in the
provider or person in issue. (For example, an individual has a 10 percent
ownership interest in the entity at issue if they have a 20 percent ownership
interest in a corporation that wholly owns a subsidiary that is a 50 percent
owner of the entity in issue.)
(D)
Member of household means, with respect to a person, with
whom they are sharing a common abode as part of a single-family unit, including
domestic employees, partners, and others who live together as a family unit.
(E)
Ownership interest means an interest in the capital, the
stock or the profits of the entity or any mortgage, deed, trust or note, or
other obligation secured in whole or in part by the property or assets of
the person.
(e)
Failure to Grant Immediate Access.
(1)
The Inspector General may sanction any provider or person,
including managed care organizations and their subcontractors, as defined
in §371.1601 of this subchapter, that:
(A)
fails to grant immediate access upon reasonable request
to:
(i)
the Inspector General;
(ii)
the Attorney General's Medicaid Fraud Control Unit or
Civil Fraud Division;
(iii)
any state or federal agency authorized to conduct compliance,
regulatory, or program integrity functions on the provider, person, or the
services rendered by the provider or person; or
(iv)
any agent or consultant of any agency or division within
an agency formerly described in subparagraph (A) of this paragraph;
(B)
fails to allow the Inspector General or any other federal
or state agency, division, agent or consultant as described in subparagraph
(A) of this paragraph to conduct any duties that are necessary to the performance
of their statutory functions;
(C)
fails to provide to the Inspector General or any other
federal or state agency, division, agent or consultant as described in subparagraph
(A) of this paragraph, upon request and as requested, for the purpose of reviewing,
examining, and securing custody of records, access to, disclosure of, and
custody of copies or originals of any records, documents, or other requested
items, as determined necessary by the Inspector General or those specified
in subparagraph (A) of this paragraph to perform statutory functions, any
records the provider or person is required to maintain; any records necessary
to verify items or services furnished and delivered under Medicaid, any other
HHS program, or any state health care program to determine whether payment
for those items or services is due or was properly made. This includes, without
limitation: clinical medical patient records, other records pertaining to
the patient, any other records of services provided to Medicaid or other HHS
program recipients and payments made for those services, documents related
to diagnosis, treatment, service, lab results, charting, billing records,
invoices, documentation of delivery of items, equipment, or supplies, and
radiographs and all requirements of §371.1617(a)(2) of this subchapter.
It also includes the business and accounting records with backup support documentation,
statistical documentation, computer records and data, patient sign in sheets,
and schedules. Accessible information must include information that is necessary
for the agencies specified in this paragraph to perform statutory functions.
It includes those elements described in §371.1601 of this subchapter
(definition of "failure to provide immediate access").
(2)
For purposes of paragraphs (1)(A) and (1)(B) of this subsection,
the term:
(A)
Failure to grant immediate access means the failure to
grant access at the time of a reasonable request.
(B)
Reasonable request means a request made by a properly identified
agent of the Inspector General or another state or federal agency identified
in paragraph (1)(A) of this subsection, during hours that the business or
premises is open for business.
(3)
For purposes of paragraph (1)(C) of this subsection, the
term Failure to grant immediate access means:
(A)
The failure to produce or make available records within
24 hours of the request for production, for the purpose of reviewing, examining,
and securing custody of records upon reasonable request, as determined by
the requestor, Inspector General and all other state and federal agencies,
except where the Inspector General or another state or federal agency identified
in paragraph (1)(A) of this subsection reasonably believes that requested
documents are about to be altered or destroyed or that the request may be
completed at the time of the request and/or in less than 24 hours;
(B)
The failure to provide access to requested records at the
time of the request, for the purpose of reviewing, examining, and securing
custody of records upon reasonable request, when the Inspector General or
another state or federal agency identified in paragraph (1)(A) of this subsection,
has reason to believe that requested documents are about to be altered or
destroyed or the request, in the opinion of the Inspector General or the other
requestor, determined that the request could be met at that time and/or in
less than 24 hours.
(C)
Reasonable request means a request for records or documents
made by a properly identified agent of the Inspector General or another state
or federal agency identified in paragraph (1)(A) of this subsection, during
hours that the business or premises is open for business.
(4)
In most instances, providers or persons required to produce
records or documents will be required to complete a Records Affidavit, Business
Records Affidavit, Evidence Receipt, and/or Patient Record Receipt, at the
direction of the requestor, and to attach these documents to the records provided.
(5)
As directed by the requestor, and in accordance with the
provisions of subsection (e) of this section, the provider or person will
relinquish custody of the records and documents and the requestor will take
custody of the records and remove them from the premises. If the requestor
should allow longer than "at the time of the request" to produce the records,
the provider or person will be required to produce all records completed,
at the time of completion or at the end of each day of production, as directed
by the requestor, to the requestor who will take custody of the records. Failure
to comply with the provisions of this part will result in a finding of Failure
to grant immediate access.
(6)
Nothing in this section shall in any way limit access otherwise
authorized under State or Federal law.
(7)
Exclusion.
(A)
A program exclusion imposed against a provider or person
under this section may be for a period equal to the sum of:
(i)
The length of the period during which the immediate access
was not granted, and
(ii)
An additional period of up to one year.
(B)
The exclusion of a provider or person may be for a longer
period than the period in which immediate access was not granted based on
consideration of the following factors:
(i)
The impact of the failure to grant the requested immediate
access on Medicaid;
(ii)
The circumstances under which such access was refused;
and
(iii)
Whether the provider or person has a documented history
of criminal, civil, or administrative wrongdoing. The lack of any prior record
is to be considered neutral.
(C)
For purposes of this section, the length of the period
in which immediate access was not granted will be measured from the time the
request is made.
(D)
The exclusion will be effective as of the date immediate
access was not granted.
(8)
The Inspector General will work with the provider or person,
within the limitations necessitated by the circumstances of the investigative
case, to provide the provider or person, within a reasonable time, as determined
by the Inspector General, and at the provider or person's expense, with copies
of the records necessary for the provider to continue their immediate business.
Nothing herein shall be interpreted to impede the Inspector General's or other
requestor's ability to obtain all records and documents as required and to
which the requestor is entitled under this section.
§371.1645.Imposing a Sanction.
(a)
In determining the sanction or combination of sanctions
to be imposed, the Inspector General may consider the seriousness of the program
violation, the extent of the violation, degree and severity of the violation,
prior non-compliance issues, prior imposition of sanctions, damages, or penalties,
pattern of non-compliance, willingness to comply with program rules, efforts
to interfere with an investigation or witnesses, recommendations of peer review
groups, program violations within Medicaid, Medicare, Titles V, XX, CHIP,
and other HHS programs, pertinent affiliate relationships, past and present
compliance with licensure and certification requirements, or any other pertinent
information deemed appropriate by Medicaid Integrity or the Inspector General
.
(b)
With regard to those exclusions for which no specific period
of time is mandated by law or regulation, the Inspector General will determine
the length of exclusion based upon the criteria in subsection (a) of this
section.
§371.1647.Notice of Sanction.
(a)
The Inspector General provides written notice of a potential
sanction(s) by certified mail with return receipt or by facsimile transmission
with confirmation page. A recoupment requires both an initial written notice
of potential sanction and a subsequent written notice of final sanction; therefore,
any additional sanctions of any type in the same notice letter with a recoupment
will require both notice letters. Additional provisions regarding notice of
an exclusion are provided in §371.1649 of this subchapter. If there is
no specific requirement in Subchapter G for a written notice of a potential
sanction for an individual specific situation, the only sanction notice letter
required is the notice of final sanction.
(b)
Potential sanction. The written notice of potential sanction
includes:
(1)
a description of the potential sanction;
(2)
the basis of the potential sanction;
(3)
the effect of the potential sanction;
(4)
its duration (duration could be indefinite or until a certain
event occurred), if appropriate; and
(5)
if the sanction is an exclusion, the notice must contain
a description of the method the provider uses to request reinstatement, unless
the exclusion is permanent.
(c)
In the case of a recoupment, a statement of the provider's
or person's right to request a formal appeal hearing of the potential sanction
is not provided in the initial notice letter, since this is not a final sanction.
A statement of the provider's or person's right to request a formal appeal
hearing of the final sanction will be subsequently provided with the final
written notice of the Inspector General's final overpayment determination.
(d)
Final sanction. The written notice of final sanction includes:
(1)
a description of the final sanction;
(2)
the basis of the final sanction;
(3)
the effect of the final sanction;
(4)
its duration (duration could be indefinite or until a certain
event occurred), if appropriate;
(5)
a statement of the provider's or person's right to request
a formal appeal hearing of the sanction; and
(6)
if the sanction is an exclusion, the notice must contain
a description of the method the provider or person uses to request reinstatement,
unless the exclusion is permanent.
(e)
The sanctions will take effect in the following manner:
(1)
Recoupment - The provider or person will receive a notice
of a potential sanction to impose recoupment. The provider or person may request
an informal review, to informally discuss the issues and allow the provider
or person an opportunity to provide information they deem appropriate. Subsequently,
the Inspector General will make a final determination regarding the amount
to be recouped. Upon that determination, the Inspector General will send final
determination and notice of recoupment to the provider or person.
(2)
Payment hold - A payment hold on payments of future claims
submitted for reimbursement will be imposed, without prior notice, as specified
in §371.1703(b) of this subchapter. The provider will be notified of
the payment hold not later than the fifth (5th) working day after the date
the hold is imposed. The payment hold will remain in effect until all issues
regarding the provider's billing practices are finally resolved, including
all litigation and judicial processes.
(3)
Restricted reimbursement - The provider will receive final
notice of intent to impose restricted reimbursement unless the provider meets
one of the exception criteria enumerated in §371.1649 and §371.1651
of this subchapter. The provider may request an informal review and/or an
administrative appeal hearing as described in paragraph (1) of this subsection.
(4)
Exclusion - The provider or person will receive a notice
of potential imposition of exclusion unless the provider meets one of the
exception criteria enumerated in §371.1649 and §371.1651 of this
subchapter. The provider or person may request an informal review, to informally
discuss the issues and allow the provider or person an opportunity to provide
information they deem appropriate. This process will occur before the Inspector
General submits it's final notice of exclusion to the provider or person.
At that time, the provider or person may request an administrative appeal
hearing as described in paragraph (1) of this subsection.
(5)
Cancellation of contract or provider agreement - The provider
or person will receive a notice of potential cancellation of contract or provider
agreement unless the provider meets one of the exception criteria enumerated
in §§371.1649 and 371.1651 of this subchapter. The provider may
request an informal review as described in paragraph (1) of this subsection.
This process will occur before the Inspector General submits it's final notice
of cancellation of contract or provider agreement to the provider or person.
If a provider or person is excluded who also has a contract or provider agreement,
prior notice of the cancellation of contract or provider agreement is not
a requirement, since the scope and effect of the exclusion, as specified in §371.1673
of this subchapter, does not allow that person to participate in Titles XIX,
V, XX, CHIP, and other HHS programs. The contract or provider agreement in
that instance would be cancelled effective the effective date of the exclusion.
§371.1649.Exceptions to Prior Notice of Exclusion, Cancellation of Contract or Provider Agreement, and Restricted Reimbursement.
When the decision to impose an exclusion, cancellation of contract
or provider agreement, or restricted reimbursement is based upon circumstances
that indicate the occurrence of any of the following, the Inspector General
provides written notice as specified in §371.1647 of this subchapter:
(1)
any criminal conduct;
(2)
any act or omission by a provider or person directly or
indirectly furnishing services or items or with authority or control over
the business or the furnishing of services or items within the Medicaid, Medicare,
or other HHS programs or any other reason that results in the preclusion of
federal financial participation (FFP) with regard to claims submitted by the
provider or person committing the act or omission or otherwise. Medicaid is
prohibited from paying 100% state general revenue funds when a loss of FFP
has occurred, e.g. provider's or person's exclusion from Medicare or loss
of licensure or certification;
(3)
any act or omission by a provider or person directly or
indirectly furnishing services or items within the Medicaid or other HHS programs
that presents a significant health, safety, or security hazard to a recipient
receiving services or items from that person;
(4)
any act or omission by a provider or person directly or
indirectly furnishing items or services within the Medicaid or other HHS programs
that causes financial loss to a recipient receiving those services and that
is a violation of the Medicaid or other HHS program;
(5)
any act or omission by a provider or person directly or
indirectly furnishing items or services within the Medicaid or other HHS programs
that indicates a pattern of repeated violations of any one or combination
of those programs;
(6)
any act or omission by a provider or person directly or
indirectly furnishing services or items within the Medicaid or other HHS programs
that causes a significant overpayment due to billing for services not provided
or not provided according to the requirements of the Medicaid or other HHS
program;
(7)
any act or omission by a provider or person directly or
indirectly that prevents a requesting agency from obtaining immediate access,
in accordance with §371.1643 of this subchapter, to premises, records,
documents, or other requested items that must be maintained in order to participate
in the Medicaid or other HHS programs or have been determined to be necessary
for the complete investigation by the Inspector General or any of the other
agencies and agents specified;
(8)
any loss of a condition that is a requirement of the Medicaid
or other HHS program, e.g. loss of license, certification, Medicare participation,
etc.; or
(9)
if the Inspector General determines that the health or
safety of individuals receiving services under Medicaid or other HHS program
warrants an exclusion taking place immediately in accordance with §371.1651
of this subchapter.
§371.1651.Immediate Sanctions Due to Health and/or Safety.
The Inspector General may immediately exclude a provider or person,
place on restricted reimbursement, and/or cancel a contract or provider agreement
of a provider or person if the Inspector General determines that the provider
or person is or may be placing the health and/or safety of individuals receiving
services, under Medicaid or any HHS program, at risk. In accordance with 42
CFR §1001.2003(c), the Inspector General may immediately exclude the
provider or person. This may occur prior to the initiation or completion of
a hearing at the State Office of Administrative Hearings (SOAH). In this situation,
the provider or person's exclusion, restricted reimbursement, and/or cancellation
of contract or provider agreement would be effective immediately upon notice
of immediate exclusion or cancellation of contract or provider agreement.
§371.1653.Exclusion.
(a)
The Inspector General's authority to exclude providers
or persons from participation in federally funded state health care programs
emanates from federal and state law. With regard to exclusion, federal law
defines "state health care programs" to include Titles V, XIX, and XX, and
exclusion from Medicare or any one of the state health care programs requires
exclusion as to all of the programs within the definition. The Inspector General
determines the necessity for exclusion according to federal regulations set
forth at 42 CFR Part 1001, and pursuant to this state's authority, as acknowledged
by 42 CFR Part 1002.
(b)
Types of exclusion. Exclusion may be:
(1)
mandatory, which requires the Inspector General to exclude
persons based upon specific occurrences set forth in this subchapter or at
42 CFR §1001.101; or
(2)
permissive, with regard to which the Inspector General
maintains discretion to exclude persons for circumstances set forth at 42
CFR §1001.201 or for other program violations for which the Inspector
General determines that exclusion is an appropriate sanction.
(c)
When the basis for exclusion is derivative of a final order,
judgment, action by a court or another governmental agency, or any other prior
determination (e.g. a conviction, plea, licensure board order, settlement
or repayment agreement, administrative law judge decision), the Inspector
General need not re-establish the factual or legal basis for the underlying
determination. The basis for the underlying determination is not reviewable
and the provider or person, as defined in §371.1601 of this subchapter,
may not collaterally attack the underlying determination, either on substantive
or procedural grounds, in an administrative hearing. Non-derivative exclusions
are based on factual determinations made initially by the Inspector General
and supported by prima facie evidence.
(d)
On and after the effective date of exclusion, providers
who were excluded cease to be providers and, for purposes of Subchapter G,
are considered persons, as defined in §371.1601 of this subchapter.
§371.1655.Mandatory Exclusion.
The Inspector General will exclude from participation in Titles V,
XIX, XX, and other HHS programs:
(1)
any provider or person who must be excluded pursuant to
grounds set forth at 42 USC §1320a-7(a) or 42 CFR §1001.101. The
length of exclusion under this subsection will be equivalent to: the length
of exclusion required by federal statute or regulation plus, pursuant to state
authority, a minimum period of one year beyond the federally mandated period
of exclusion, determined according to the severity of the offense.
(2)
any managed care organization or other entity furnishing
services under a §1915 (b)(1) waiver of the Social Security Act, if such
organization or entity could be excluded under 42 CFR §1001.1001 ("Exclusion
of Entities Owned or Controlled by a Sanctioned Person") or §1001.1051
("Exclusion of Individuals with Ownership or Control Interest in Sanctioned
Entities") or, directly or indirectly, has a substantial contractual relationship
(as defined in 42 CFR §1002.203) with an individual or entity that could
be excluded under 42 CFR §1001.1001 or §1001.1051. Length of exclusion
under this subsection will be equivalent to that of the person whose relationship
with the entity is the basis for the exclusion, subject to the exceptions
established at 42 CFR §1001.3002(c).
(3)
any provider or person who is found liable for a false
claim or a managed care violation set forth within the state's damages and
penalties statute at section 32.039(b) of the Human Resources Code. Term of
exclusion under this subsection is as follows:
(A)
except as provided by subparagraph (B) of this paragraph
, when the violation resulted in injury to an elderly person (as defined by
Human Resources Code §48.002(a)(1), a disabled person (as defined by
Human Resources Code §48.002(a)(8)(A)), or a person younger than 18 years
of age, the provider or person may not provide or arrange to provide health
care services under Medicaid for a minimum period of ten (10) years to a maximum
period of permanent exclusion. The period of exclusion begins on the date
on which the determination that the provider or person is liable becomes final.
(B)
except as provided by subparagraph (A) of this paragraph,
when the violation did not result in injury to anyone in those categories
of persons listed in paragraph (1) of this section, the provider or person
may not provide or arrange to provide health care services under Medicaid
for a period of three (3) years to a maximum period of permanent exclusion.
The period of exclusion begins on the date on which the determination that
the provider or person is liable becomes final.
(C)
any provider or person who is convicted, as defined in §371.1601,
or pleads guilty or nolo contendere of an offense arising from a fraudulent
act under the Medicaid program, which results in injury to an elderly person
(as defined by Human Resources Code §48.002(1)), a disabled person (as
defined by Section 48.002 (8)(A), or a person younger than 18 years of age.
Exclusion under this subsection is permanent. A person excluded under this
subsection shall not be eligible for reinstatement to the program. The period
of exclusion begins on the date on which the provider or person is convicted.
(4)
any provider or person whose health care services or items
are ineligible for federal financial participation. The period of exclusion
begins on the date the provider's or person's health care services or items
became ineligible for federal financial participation.
(5)
any provider or person whose health care license, certification,
or other qualifying requirement to perform certain types of service is revoked,
suspended, or otherwise terminated such that the provider or person may not
perform their profession due to the loss of the license, certification, or
other qualifying requirement. The period of exclusion begins on the date the
person lost their license, certification, or other qualifying requirement.
§371.1657.Permissive Exclusion.
The Inspector General may exclude from participation in Titles V, XIX,
XX, CHIP and other HHS programs -
(1)
any provider or person who commits a program violation
as established by prima facie evidence, including but not limited to those
set forth at §371.1617 of this subchapter, Human Resources Code §32.039(b),
(u), (v) or §371.1721 et seq. of this subchapter, and Human Resources
Code §36.002; and
(2)
any provider or person, as defined in §371.1601 of
this subchapter, who may be excluded for any reason for which the Secretary
of the U.S. Department of Human Services or its agent could exclude such person
under 42 USC §1320a-7(b) or 42 CFR Parts 1001 or 1003.
(3)
any provider, entity, or person, if another provider, entity,
or person, with whom they have a relationship:
(A)
has been convicted of a criminal offense as described in §§1128(a)
and 1128(b)(1), (2), or (3) of the Social Security Act;
(B)
has had civil money penalties or damage and penalties assessments
imposed under §371.1721 et seq. of this subchapter or §1128A of
the Social Security Act; or
(C)
has been excluded from participation in any one of the
Titles V, XVIII, XIX, XX, CHIP, or other HHS program and such person:
(i)
has a direct or indirect ownership interest (or any combination
thereof) in the provider or person, as defined in §371.1601 of this subchapter;
(ii)
is the owner of a whole or part interest in any mortgage,
deed of trust, note or other obligation secured (in whole or in part) by the
entity or any of the property assets thereof;
(iii)
is an officer or director of the provider or person,
if the entity is organized as a corporation;
(iv)
is partner in the provider or person, if the provider
or person is organized as a partnership;
(v)
is an agent or consultant of the provider or person; or
(vi)
is a managing employee, that is, a person (including a
general manager, business manager, administrator, or director) who exercises
operational or managerial control over the provider or person or part thereof;
or
(D)
was formerly described in paragraph (3) of this section,
but is no longer so described, because of a transfer of ownership or control
interest to an immediate family member or a member of the person's household,
as defined in §371.1643 of this subchapter, in anticipation of or following
a conviction, assessment of a CMP, or imposition of an exclusion or other
sanction.
(4)
any person that:
(A)
has a direct or indirect ownership or control interest
in a sanctioned entity, and who knows or should know, as defined in §1128A(i)(6)
of the Social Security Act, of the action constituting the basis for the conviction
or exclusion set forth in paragraph (2) of this section; or
(B)
is an officer or managing employee, as defined in §371.1643
of this subchapter, of such provider, entity, or person.
§371.1659.Notice of Intent to Exclude.
Except as provided in paragraph (3) of this section, when the Inspector
General proposes to exclude any person on mandatory grounds for a period exceeding
5 years or on permissive grounds, it gives written notice of its intent to
exclude.
(1)
Notice of potential to exclude includes:
(A)
the basis for the potential exclusion;
(B)
the potential effect of the exclusion; and
(C)
whether the Inspector General also proposes to cancel any
provider agreement held by the provider or person to be excluded.
(2)
Within 30 days of receipt of the notice of potential exclusion,
which is deemed to be 5 days from the date of the notice, the provider or
person receiving notice may submit to the Inspector General, any documentary
evidence or written argument regarding whether exclusion is warranted and
any related issues. Submission of documentary evidence or written argument,
however, is no guarantee that the Inspector General will not ultimately exclude
the provider or person.
(3)
If the Inspector General proposes to exclude a provider
or person on grounds set forth at 42 CFR §1001.1301 (failure to grant
immediate access to records), §1001.1401 (hospital's failure to comply
with corrective action plan required by the Health Care Finance Administration
(HCFA), or §1001.1501 (default on health education loan or scholarship
obligations), it need not send a notice of intent to exclude and may effect
exclusion upon providing notice of exclusion (as set forth below).
§371.1661.Notice of Exclusion.
Except as provided in §371.1665 (Notice of Proposal to Exclude)
of this subchapter, if the Inspector General determines, after review of any
evidence or argument offered by a provider or person entitled to provide same,
that exclusion is warranted, it will send a written notice of final exclusion
to the affected provider or person. Such notice will state:
(1)
the basis for the final exclusion;
(2)
the length of the final exclusion and, where applicable,
the factors considered in determining the length;
(3)
the effect of the final exclusion;
(4)
the earliest date on which the Inspector General will consider
a request for reinstatement;
(5)
the requirements and procedures for reinstatement; and
(6)
the appeal rights available to the excluded person.
§371.1663.Effective date of Exclusion.
Except for immediate exclusion based upon grounds set forth at 42 CFR §1001.1301
(failure to grant immediate access to records) and §§371.1649 or
371.1651 of this subchapter, exclusion will be effective 20 days from the
date of the notice of exclusion.
§371.1665.Notice of Proposal to Exclude.
(a)
Except as provided in subsection (e) of this section, if
the Inspector General proposes to exclude a provider or person on grounds
set forth at:
(1)
42 CFR §1001.901 (false or improper claims),
(2)
42 CFR §1001.951 (fraud and kickbacks and other prohibited
activities), §1001.1601 (violations of the limitations on physician charges),
or
(3)
42 CFR §1001.1701 (billing for services of assistant
at surgery during cataract operations); the Inspector General will send written
notice of this decision to the affected person.
(b)
The written notice of proposal to exclude includes the
same information that must be included in a notice of exclusion set forth
in §371.1661 of this subchapter, as well as an indication of whether
the Inspector General intends to terminate any provider agreement or contract
of the affected provider or person.
(c)
The exclusion will be effective 20 days after the date
of the notice of proposal to exclude, unless, within that period, the affected
person files with the Inspector General, a written request for a hearing by
SOAH. A request for hearing must set forth:
(1)
the specific issues or statements in the notice of proposal
to exclude with which the person disagrees;
(2)
the basis for the disagreement;
(3)
the defenses on which reliance is intended;
(4)
any reasons why the proposed length of exclusion should
be modified; and
(5)
reasons why the health or safety of individuals receiving
services from the relevant state health care program(s) does not warrant the
exclusion going into effect prior to the completion of the requested hearing.
(d)
If the affected person does not file a timely written request
for hearing as provided in subsection (c) of this section, the Inspector General
will send a notice of exclusion as described in §371.1661 of this subchapter.
If the affected person makes a timely written request for a hearing and the
Inspector General determines that the health or safety of individuals receiving
services under the relevant state health care program(s) does not warrant
an immediate exclusion, an exclusion will not go into effect unless the hearing
officer or administrative law judge at the hearing upholds the decision to
exclude.
(e)
If, prior to issuing a notice of proposal to exclude under
subsection (a) of this section, the Inspector General determines that the
health and safety of individuals receiving services under the relevant state
health care program(s) warrants the exclusion taking place prior to the completion
of the hearing by the relevant operating agency, the Inspector General will
proceed under §371.1659 (Notice of Intent to Exclude) and §371.1661
(Notice of Exclusion) of this subchapter.
§371.1667.Due Process for Administrative Sanctions.
(a)
The Inspector General affords, to any provider or person
against whom it imposes sanctions, all administrative and judicial due process
remedies applicable to administrative sanctions. Pursuant to its own rules
governing hearings and appeals, the State Office of Administrative Hearings
(SOAH) provides formal appeal hearings for those persons who appeal final
sanctions imposed by the Inspector General.
(b)
The person is also offered, in the sanction notice letter,
an opportunity to request an informal review of the imposition of sanction.
The provider or person is given an opportunity to submit documentary evidence
and written argument concerning whether the sanction is warranted and other
related issues. Submission of documentary evidence or written argument, however,
is no guarantee that the Inspector General will not ultimately impose administrative
sanctions against the provider or person. The provider or person may choose
to request an informal review, a formal appeal hearing, or both. If both an
informal review and formal appeal hearing are chosen, the formal appeal hearing
and all pertinent discovery, prehearing conferences, and all other issues
and activities regarding the formal appeal hearing will be abated until all
informal review discussions have ended without settlement or resolution of
the issues. In certain situations, the informal review will not be offered.
(c)
When the exclusion is based on the existence of a criminal
conviction, a civil fraud finding, a civil judgment imposing liability by
federal, state, or local court, a determination by another government agency
or board, any other prior determination, or provisions within a settlement
agreement, the basis for the underlying determination is not reviewable and
the individual or entity may not collaterally attack the underlying determination,
either on substantive or procedural grounds, in an administrative appeal.
§371.1669.Notice of Appeal.
(a)
To appeal a final sanction imposed by the Inspector General,
a provider or person shall file a written request for appeal with the Inspector
General within twenty (20) calendar days of the date of the person's receipt
of the notice of final sanction, unless specified otherwise in other sections
of this subchapter. The Inspector General will then forward the notice of
appeal to the Commission's Office of General Counsel for docketing at SOAH.
If an informal review has also been requested, the appeal will be abated until
all efforts to resolve or settle the sanction have been unsuccessful. At the
conclusion of the informal review process, the Inspector General will then
forward the notice of appeal to the Commission's Office of General Counsel
for docketing at SOAH.
(b)
The letter requesting an appeal hearing or informal review
will contain a statement as to the specific issues, findings, and/or legal
authority in the notice letter with which the sanctioned provider or person
disagrees, and the basis for their contention that the specific issues or
findings and conclusions are incorrect. The request for a hearing must be
made in writing to the Director of Medicaid Integrity. The request must be
signed by the provider or person sanctioned or by their attorney and sent
by certified mail to arrive in Medicaid Integrity by the filing deadline.
No other person or party may appeal for or on behalf of the sanctioned provider
or person.
§371.1671.Settlement.
The Inspector General has authority to settle any issues or case, without
consent of the SOAH Administrative Law Judge.
§371.1673.Scope and Effect of Exclusion.
(a)
Excluded Person and Affiliated Entities. Unless and until
a person is reinstated into the Texas Medicaid program in accordance with §371.1689
of this subchapter, no payment will be made by any Texas health care program,
Medicaid, or any HHS program for any item or service furnished by an excluded
person on or after the effective date of exclusion.
(1)
A person excluded pursuant to this subchapter must neither
personally nor through a clinic, group, corporation, or other association
or entity, bill or otherwise request or receive payment for any Title V, XIX,
XX, CHIP, or other HHS programs for items or services provided on or after
the effective date of the exclusion. Exclusion also prevents the excluded
person from providing any services pursuant to the Medicaid and other HHS
programs, whether or not the excluded person directly requests Medicaid or
other HHS program payment for such services (e.g., a person excluded may not,
until reinstated, conduct TILE case assessments for an employer participating
within the program).
(2)
A person excluded pursuant to this subchapter must not
assess care or order or prescribe services, directly or indirectly, to Title
V, XIX, XX, CHIP, or other HHS recipients after the effective date of exclusion.
A clinic, group, corporation, or other association or entity must not submit
to Title V, XIX, XX, CHIP, or other HHS programs claims for any assessments,
services or items provided by a person within such organization or entity
who is excluded from participation, unless the services or supplies were provided
before the effective date of exclusion.
(3)
An entity that employs or otherwise associates with a person
excluded from participation in Titles V, XIX, XX, CHIP, or other HHS program
pursuant to this subchapter must not include within a cost report or any documents
used to determine an individual payment rate, a statewide payment rate or
a fee, the salary, fringe, overhead, or any other costs associated with the
person excluded.
(b)
Persons other than person excluded and affiliated entities.
Unless and until a person is reinstated into the Texas Medicaid program in
accordance with §371.1689 of this subchapter, no payment will be made
by any Texas health care program, Medicaid, or any HHS program for any item
or service furnished pursuant to the medical direction, prescription or assessment
of a person excluded under this subchapter on or after the effective date
of exclusion, when the person furnishing the item or service knew or had reason
to know of the exclusion.
(c)
An order or prescription written before the exclusion of
a physician is valid for the duration of the order.
(d)
If, after the effective date of an exclusion, the excluded
person submits or causes to be submitted claims for services (including case
assessments) or items furnished within the period of exclusion, they may be
subject to civil monetary penalty liability under §1128A(a)(1)(D), and
criminal liability under §1128B (a)(3) of the Social Security Act and
an administrative damage and penalty as set forth in §371.1721 et seq.
of this subchapter.
§371.1675.Informing Other Interested Parties.
(a)
In accordance with federal and state requirements, when
the Inspector General excludes a person, the Inspector General shall promptly
notify each appropriate state agency administering or supervising each state
health care program, as well as the appropriate state or local authority or
agency responsible for licensing or certifying the person excluded. Notification
shall include:
(1)
the facts, circumstances, and period of exclusion;
(2)
a request that appropriate investigations be made and any
necessary sanctions be invoked in accordance with applicable law and policy;
and
(3)
a request that the state or local authority or agency fully
and timely inform the commission with respect to any actions taken in response
to the commission's request.
(b)
Through procedures and means it establishes, the Inspector
General also notifies providers, recipients, and the public regarding persons
excluded.
§371.1677.Obligation of All Health Care Providers regarding Exclusion.
(a)
Each provider or person is responsible for ensuring that
items or services furnished personally by, at the medical direction of, or
on the prescription or order of an excluded person are not billed to the Titles
V, XIX, XX, CHIP, and other HHS programs after the effective date of exclusion,
as specified in this subchapter. This section applies regardless of whether
an excluded person has obtained a program provider number or equivalent, either
as an individual or as a member of a group, prior to being reinstated. Failure
to ensure excluded providers are not participating in the activities above
and/or billing for services rendered by an excluded person will result in
exclusion of the currently active providers and persons allowing the forbidden
activity, plus recoupment of all funds paid to the currently active provider
or person for those activities, and imposition of damages and penalties against
both the currently active provider or person and the excluded person. The
damages and penalties are delineated in §371.1721 et seq. of this subchapter.
(b)
Providers or persons must not bill recipients for services
or items specified in subsection (a) of this section unless:
(1)
the recipient is informed, before delivery of the item
or service, that those services are not reimbursed by Medicaid; and
(2)
the provider obtains and retains, before delivery of the
item or service, a written signed consent from the recipient indicating that
the recipient understands they are responsible for payment for the services
and that the services or items are still desired.
(c)
Providers or persons who violate these rules by billing
recipients without the required disclosure and consent are subject to sanctions
described in this subchapter.
§371.1679.Waiver of Exclusion.
The Inspector General may request a waiver of an exclusion mandated
by federal law only in accordance with the requirements of 42 CFR §1001.1801.
Waiver of an exclusion mandated by state law is limited to those circumstances
of public health necessity set forth at 42 CFR §1001.1801. The Inspector
General is not obligated to request a waiver of exclusion by virtue of a request
for waiver from an excluded person. The decision to grant, deny, or rescind
a request for a waiver is not subject to administrative or judicial review.
§371.1681.Provider Enrollment.
(a)
Basis for Initial Provider Enrollment or Request for Additional
Provider Numbers.
(1)
The Commission, health and human services agencies, and
their contractors determine the need for and approve individual provider participation
through initial provider enrollment and enrollment for additional provider
number(s), including managed care organizations and their subcontractors.
(2)
The request for initial provider enrollment and enrollment
for additional provider numbers could result in an abatement, denial, or postponement
of approval by the Commission, through the Inspector General, as specified
in §371.1603(a) of this subchapter, health and human services agencies,
or their contractors. These actions do not give rise to due process notice
and hearing requirements. In making the enrollment determination, the following
will be considered
(A)
accessibility of other health care to the recipient population;
(B)
the provider's current or previous conduct, including conduct
during participation in the Titles XVIII, XIX, XX, and V, CHIP, and any HHS
programs in any state, or any conduct or action for which a sanction could
have been taken, as described in subchapter G;
(C)
the investigative findings in any current or previous investigation
of the provider or person or their affiliates;
(D)
licensure or certification actions against the provider
or person or any provider or person with which they are affiliated, as described
in §371.1643(d) of this subchapter;
(E)
criminal history background check; and
(F)
consideration of all of the above, in relation to the provider's
or person's family member and member of household, as specified in §371.1643(d)(3)
of this subchapter.
(b)
Providers, persons, principals, or affiliates of providers
or persons under investigation, who have sanctions pending, or have been sanctioned
previously, by the Inspector General or any HHS program, may have any application
for enrollment or new provider number decisions abated until all investigations,
sanctions, and legal proceedings are finally resolved, as specified in §371.1603(a)
of this subchapter.
§371.1683.Criminal History Checks.
The Commission, any HHS operating agency, or their contractors may
conduct a criminal history check on any Medicaid, Title XX or V, CHIP, or
any other HHS program provider or on any person or business entity who meets
the definition of "indirect ownership interest" as defined in §371.1601
who are applying to become Medicaid, Title XX or V, CHIP, or other HHS providers,
or who are applying to obtain new provider numbers or performing provider
numbers. The Commission, operating agency, or their contractors may require
the provider or applicant to provide a report from the Texas Department of
Public Safety or other appropriate law enforcement agency of the criminal
history of the provider or applicant in such form as the Commission or operating
agency may require.
(1)
If the Medicaid, Title XX or V, CHIP, or other HHS program
provider or applicant is a corporation this requirement may be extended to
officers and directors of the corporation, or to shareholders of 5% or more
of the outstanding shares of such corporation, or who are required to disclose
their ownership interest pursuant to federal law or regulation.
(2)
If the Medicaid, Title XX or V, CHIP, or other HHS program
provider or applicant is a partnership, whether general or limited, this requirement
extends to all persons or corporations owning a beneficial interest in the
partnership.
(3)
If the Medicaid, Title XX or V, CHIP, or other HHS program
provider or applicant is an individual or an unincorporated association of
individuals the requirement shall extend to all persons and members of the
association or who are applicants or providers.
(4)
Medicaid, Title XX or V, CHIP, or other HHS program providers
and applicants shall disclose and provide complete information regarding all
misdemeanor and felony convictions of offenses on the Medicaid, Title XX or
V, CHIP, or other HHS program provider application form. Failure to make full
and accurate disclosure will be grounds for immediate denial of an application
or termination of a contract with a provider in the Medicaid, Title XX or
V, CHIP, or other HHS program.
(5)
The Commission, operating agency, or their contractors
may exempt from this requirement any person or entity which is licensed under
the laws of this State and which licensure requires a criminal history check.
§371.1685.Use of Criminal History Record Information.
(a)
If the Commission, operating agency, or their contractors
determines through a criminal history check from the application for provider
or performing provider status that the provider or applicant has been convicted
of one of the following crimes the provider or applicant will not be eligible
to participate in the Medicaid program, and if enrolled, the Commission, operating
agency, or their contractors will terminate the provider's contract, or deny
the application.
(1)
An offense under chapter 19, Texas Penal Code (criminal
homicide);
(2)
An offense under chapter 20, Texas Penal Code (kidnapping
and false imprisonment);
(3)
An offense under section 21.11, Texas Penal Code (indecency
with a child);
(4)
An offense under section 22.011, Texas Penal Code (sexual
assault);
(5)
An offense under section 22.02, Texas Penal Code (aggravated
assault);
(6)
An offense under section 22.04, Texas Penal Code (injury
to a child, elderly individual, or disabled individual);
(7)
An offense under section 22.041, Texas Penal Code (abandoning
or endangering a child);
(8)
An offense under section 22.08, Texas Penal Code (aiding
suicide);
(9)
An offense under section 25.031, Texas Penal Code (agreement
to abduct from custody);
(10)
An offense under section 25.08, Texas Penal Code (sale
or purchase of a child);
(11)
An offense under section 28.02, Texas Penal Code (arson);
(12)
An offense under section 29.02, Texas Penal Code (robbery);
(13)
An offense under section 29.03, Texas Penal Code (aggravated
robbery);
(14)
An offense under chapter 31, Texas Penal Code (theft);
(15)
An offense under chapter 32, Texas Penal Code (fraud);
(16)
An offense under chapter 34, Texas Penal Code (money laundering);
(17)
An offense under chapter 35, Texas Penal Code (insurance
fraud);
(18)
An offense under chapter 36, Texas Penal Code (bribery
and corrupt influence);
(19)
An offense under chapter 37, Texas Penal Code (perjury
and other falsifications);
(20)
An offense under chapter 71.02, Texas Penal Code (engaging
in organized criminal activity);
(21)
A federal offense under the Racketeer Influenced and Corrupt
Organizations Act, mail fraud, wire fraud, insurance fraud, Medicare Fraud,
Medicaid Fraud, tampering with a government document, and/or violation of
Federal False Claims Act.
(b)
The prohibition shall also include convictions for aiding
and abetting any of the above-listed offenses or for conspiracies to commit
any of the above offenses.
(c)
The prohibition shall also include any conviction under
the laws of another state, which prohibits the conduct described in the above
listed offenses.
§371.1687.Administrative Review of Rejection of Provider Enrollment by reason of Criminal History.
(a)
Should the Commission, any operating agency, or their contractors
determine from information furnished by the applicant or Medicaid, Title XX
or V, CHIP, or other HHS program provider, or from an independent criminal
history check that the Medicaid, Title XX or V, CHIP, or other HHS program
provider or applicant has been convicted of an offense described in section
371.1685, a notice of denial of the application or cancellation of the Medicaid,
Title XX or V, CHIP, or other HHS program provider enrollment shall be sent
to the Medicaid, Title XX or V, CHIP, or other HHS program provider or applicant.
The notice shall state the action taken and the basis for the action, including
the conviction, the jurisdiction reporting the conviction, and the source
of the information.
(b)
The applicant or Medicaid, Title XX or V, CHIP, or other
HHS program provider, upon receipt of the notice of denial or cancellation,
may determine that the action is based on a mistake in identity. If so, the
applicant or Medicaid, Title XX or V, CHIP, or other HHS program provider
has thirty (30) calendar days from the date of receipt of the notice to provide
the Commission, operating agency, or their contractors with documentation
from the reporting agency correcting the mistake in identification.
(c)
If the applicant or Medicaid, Title XX or V, CHIP, or other
HHS program provider, upon receipt of the notice of denial or cancellation,
determines that, although the information is correct, there exists factors,
which should be considered in mitigation of the prohibition, the applicant
or Medicaid, Title XX or V, CHIP, or other HHS program provider may request
an informal desk review within twenty (20) calendar days from the receipt
of the notice. The request for an informal desk review should be made in writing
and addressed as directed to the Office of Inspector General (OIG), the operating
agency, or their contractors and should set out the reasons which the applicant
or Medicaid, Title XX or V, CHIP, or other HHS provider believes are relevant
to the issue of mitigation.
(d)
The following factors may be considered in the informal
desk review:
(1)
the nature and seriousness of the crime;
(2)
the relationship of the crime to the purposes of providing
medical services, supplies, or equipment;
(3)
the extent to which approving an application or retaining
a provider in the Medicaid, Title XX or V, CHIP, or other HHS program would
offer the applicant or provider the opportunity to engage in further criminal
activity;
(4)
the relationship of the crime to the ability, capacity,
or fitness required of the provider or provider applicant to perform the duties
and discharge the responsibilities of a provider in the Medicaid, Title XX
or V, CHIP, or other HHS program;
(5)
the age of the provider or applicant at the time each crime
was committed;
(6)
the conduct and work history of the applicant or provider
before and after the criminal conviction(s);
(7)
evidence of the applicant's or provider's rehabilitation
efforts and outcome;
(8)
the number and nature of the criminal conviction(s);
(9)
the length of time since the end of the sentence imposed
for the conviction; and
(10)
other evidence of fitness that may be relevant.
§371.1689.Reinstatement following Exclusion.
(a)
A person who has been excluded from Medicaid, any HHS program,
or any state health care program, as defined in §371.1601 of this subchapter,
may be reinstated only by the Inspector General, the division that imposed
the exclusion. The request for reinstatement may be abated, denied, or postponed
by Medicaid Integrity or the Inspector General as specified in §371.1603(a)
of this subchapter.
(b)
A person excluded from Medicaid or any HHS program may
submit to the Inspector General a request for reinstatement at any time after
the period of exclusion has ended. An excluded person may not be granted a
contract or provider agreement in any HHS program until and unless reinstatement
is approved by the Inspector General and the exclusion status is removed.
(c)
The Inspector General will grant reinstatement only if
it is reasonably certain that the types of actions that formed the basis for
the original exclusion have not recurred and will not recur. In making this
determination, the agency will consider:
(1)
The conduct of the provider or person before and after
the date of the notice of exclusion;
(2)
Whether all fines, damages, penalties and any other debts
due and owing (including e.g. overpayments, penalties, damages, appeal hearing
costs) to any federal, state or local government, have been paid, or satisfactory
arrangements have been made that fulfill these obligations;
(3)
The accessibility of other health care to the recipient
population that would be served by the person who has been excluded;
(4)
The person's previous conduct, including conduct during
participation in the Titles XVIII, XIX, XX, and V, CHIP, and any HHS programs
in any state, or any conduct or action for which a sanction could have been
taken, as described in subchapter G of this chapter;
(5)
Any previous convictions, as defined in §371.1601,
of the person regardless of it's relation to Titles XVIII, XIX, XX, V, CHIP,
or other HHS programs;
(6)
Whether the Inspector General has determined that the individual
or entity complies with or has made satisfactory arrangements to fulfill,
all of the applicable conditions of participation or supplier conditions for
coverage under the statutes and regulations;
(7)
Whether the person has, during the period of exclusion,
submitted claims, or caused claims to be submitted or payment to be made by
Medicaid or any state health care program, for items or services the excluded
party furnished, ordered or prescribed, including health care administrative
services; and
(8)
Any other factors or circumstances deemed by the Inspector
General to be relevant to the determination of reinstatement.
(d)
Submitting claims or causing claims to be submitted or
payments to be made by the programs for items or services furnished, ordered
or prescribed, including administrative and management services or salary,
may serve as the basis for denying reinstatement. This section applies regardless
of whether a person has obtained a program provider number or equivalent,
either as an individual or as a member of a group, prior to being reinstated.
The person is subject to imposition of recoupment of any payments made and
administrative penalties.
(e)
If a person circumvents the reinstatement requirements
specified in subsections (a) and (b) of this section and receives a Medicaid
provider number, they may be excluded immediately, without the due process
afforded providers specified in §371.1667 of this subchapter. They may
also be subject to recoupment of all of the Medicaid payments made to that
provider number and imposition of administrative penalties.
(f)
Upon receipt of a written request, the Inspector General
may require the requestor to furnish specific information and authorization
for the Inspector General to obtain information from private health insurers,
peer review bodies, probation officers, professional associates, investigative
agencies, and others as may be necessary to determine whether reinstatement
should be granted.
(g)
If the Inspector General determines that the request for
reinstatement should be approved from an entity, association, or affiliation
whose principals were also excluded for the same violations or surrounding
or regarding the same violations, that entity, association, or affiliation
may be reinstated if the Inspector General determines that the principal for
the entity or association:
(1)
has terminated their ownership or control interest in the
entity;
(2)
is no longer an Officer, Director, Agent, Consultant, managing
employee, or any other title with the same duties, ownership, or control of
the entity; or
(3)
has been reinstated in accordance with this section.
(h)
Notice of action on request for reinstatement.
(1)
Approval of Request for Reinstatement. If the Inspector
General approves the request for reinstatement, it shall give written notice
to the excluded person, and to all others who were informed of the exclusion
pursuant to this subchapter, specifying the date on which Medicaid and other
HHS program participation may resume. The Inspector General may condition
reinstatement upon the completion of a specified course of education regarding
Medicaid and other HHS claims and/or services or on any other basis deemed
appropriate (e.g., requirement for closed-end, probationary or provisional
provider agreement or contract, or any other action specified in §371.1631
of this subchapter).
(2)
Denial of Request for Reinstatement.
(A)
If the Inspector General denies the request for reinstatement,
it will give written notice to the requesting person. Within 30 days of the
date of the notice, the excluded person may submit:
(i)
Documentary evidence and written argument against the continued
exclusion,
(ii)
A written request to present written evidence and oral
argument to an Inspector General official, or
(iii)
Both documentary evidence and a written request.
(B)
After evaluating any additional evidence submitted by the
excluded person (or at the end of the 30-day period, if none is submitted),
the Inspector General will send written notice either that a subsequent request
for reinstatement will not be considered until at least one year after the
date of denial, or approving the request consistent with the procedures set
forth in paragraph (1) of this subsection.
(C)
The denial of reinstatement is not a sanction as specified
in §371.1643 of this subchapter and may not be appealed to SOAH. It is
subject only to informal review by the Inspector General. It is not subject
to administrative or judicial review.
(i)
Reinstatement will not be effective until Medicaid Integrity
or the Inspector General grants the request and provides notice under this
section. Reinstatement will be effective as provided in the notice.
(j)
A determination with respect to reinstatement is not appealable
or reviewable.
(k)
A SOAH Administrative Law Judge may not require reinstatement
of an individual or entity in accordance with this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403711
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
1 TAC §§371.1701, 371.1703, 371.1705, 371.1707
The new rules are proposed under §531.033 and §531.021,
Texas Government Code, which provides the Commission with broad rulemaking
authority; §32.021(a), (c), Human Resources Code, provides that the Commission
shall adopt necessary rules for the proper and efficient administration of
the medical assistance program; 531.102 establishes the Office of Inspector
General (formerly the Office of Investigations and Enforcement) and imposes
responsibility for investigation of fraud and abuse in the provision of health
and human services and the enforcement of state law relating to the provision
of those services; the rules specifically implement the provisions of HB2292
and 1743; 42 CFR §455.13 requires the Medicaid agency have methods and
criteria for identifying suspected fraud and abuse cases and methods for investigating
fraud and abuse, and referring cases for criminal prosecution; 42 CFR, Part
455 specifies all federal requirements of the Commission to provide for Medicaid
fraud and abuse program integrity; 42 CFR §1002.2 provides authority
for the Commission to exclude Medicaid providers from participation in the
Medicaid program; 42 CFR Parts 1002 and 1001 provide all requirements relating
to exclusion of providers; and various other state and federal statutes place
requirements on the Commission to implement a fraud and abuse program integrity
component. The proposed rules meet the mandates of the state and federal statutes
delineated above and the state statutes above provide the Commission with
broad rulemaking authority for the implementation of those mandates.
The proposed rules affect Chapter 531, Texas Government Code, and Chapter
32, Human Resources Code.
§371.1701.Medicaid Integrity Investigation of Overpayments.
When an overpayment appears to result from a program violation that
may involve misuse, waste, abuse or fraud, Medicaid Integrity investigates
the circumstances precipitating the overpayment. When no wrongdoing is established
through investigation, Medicaid Integrity, at the discretion of its director,
may refer the matter for routine payment correction by the fiscal agent or
an operating agency or may offer a payment plan, as discussed in §371.1671
of this subchapter. Prima facie cases of misuse, waste, abuse or fraud require
appropriate administrative enforcement, including recoupment and other necessary
administrative action, sanction or penalty. As set forth above, fraud also
is subject to criminal prosecution.
§371.1703.Recovery of Overpayments.
(a)
The Inspector General and its agents recover all overpayments
made to providers within the Medicaid program, whether the overpayment resulted
from error (by the provider, the claims administrator, or an operating agency),
misunderstanding, or a program violation proven to result from fraud or abuse.
When Medicaid Integrity's investigation reveals evidence of a program violation
(which may or may not include an overpayment), Medicaid Integrity and the
Inspector General determine and impose the appropriate administrative enforcement.
(b)
Payment Hold. A payment hold on payments of future claims
submitted for reimbursement will be imposed, without prior notice, after it
is determined that prima facie evidence exists to support the payment hold.
The payment hold may be imposed prior to completion of an investigation. It
is used to withhold payments to providers that may be used subsequently to
offset the overpayment or penalty amount when the investigation is complete.
The provider or person will be notified of the payment hold not later than
the fifth (5th) working day after the date the hold is imposed. With the exception
of a payment hold imposed as a result of paragraph (2) of this subsection,
the provider or person may request an informal review and/or an expedited
administrative appeal hearing. These requests must be received in writing
in the method prescribed by the Inspector General not later than the 10th
day after the date the active provider receives notice of the payment hold.
A provider's decision to seek an informal resolution under this subsection
does not extend the time by which the provider must request an expedited administrative
appeal hearing. On timely written request by a provider subject to a payment
hold, the Inspector General will file a request with the State Office of Administrative
Hearings (SOAH) for an expedited administrative hearing regarding the payment
hold. Should the provider request both an informal review and an expedited
administrative appeal hearing, the expedited administrative appeal hearing
will be abated until the informal review process is completed. The instances
in which a payment hold may be imposed without prior notice are:
(1)
to compel production of records;
(2)
when requested by the Attorney General's Medicaid Fraud
Control Unit, as applicable;
(3)
in the instance of fraud or willful misrepresentation;
(4)
when the U.S. Health and Human Services (HHS) imposes a
payment hold (suspension of payments) against the provider for Medicare violations
and that provider or person is also a provider in Medicaid;
(5)
for any reasons specified in §§371.1609, 371.1617,
371.1621 of this title, or any other provisions delineated in these rules;
or for any other reason specified by statute or regulation.
(c)
Injunction to Prevent Disposing of Assets and Application
to Debts. Based on the results of investigative findings and evidence that
potential fraud exists and a potential overpayment, penalty, or damage has
been identified, a method that may be used by the Inspector General, as a
fiduciary for the state, is injunctive relief. The purpose of the injunctive
relief is to ensure assets remain to reimburse the state funds owed such as
recoupment of overpayments and assessed damages and penalties, investigative
costs, and other costs specified in §371.1705 of this subchapter. The
Inspector General for purposes of Medicaid reimbursement, will request that
the Attorney General obtain an injunction to prevent a provider or person
from disposing of an asset(s) identified by the Inspector General as potentially
subject to recovery due to the provider's or person's fraud or abuse. Upon
final resolution of the case, any funds derived from the forfeited asset(s),
after offsetting any expenses attributable to the sale of those assets, will
be applied, by the Inspector General, to the unpaid debt.
(d)
Payment of recoupments. At the Inspector General's discretion,
overpayments may be collected in a lump sum or through installments. The Inspector
General may collect recoupments by deducting them incrementally from prospective
or retrospective payments owed to the provider. If collection is made through
installments, the provider must comply with the payment plan established by
the Inspector General. A payment plan will be for a reasonable length of time
as determined by the Inspector General considering the circumstances of each
individual case.
(e)
Other collection methods. When providers have not paid
funds owed to the Medicaid program, the Inspector General will utilize numerous
means necessary to aggressively collect funds owed. Some of these tools are:
utilizing a collection agency, collecting from Medicare for Medicaid provider
debts, requesting the State Comptroller to place a hold on all state voucher
revenue for a provider or person from all state agencies, requesting the Attorney
General's Collection Division to file suit in district court, and receiving
and reporting credit information on providers and persons with outstanding
debts.
(f)
Overpayments caused by an Order. An ordering provider or
person causes an overpayment to be made to themselves or to another provider
as a result of a false statement, misrepresentation, or omission of pertinent
facts:
(1)
on a claim, attachments to a claim, medical records, document
serving as an order for services, or any other documentation used to adjudicate
a claim for payment;
(2)
any documentation submitted or maintained by the provider
to support representations made on claims;
(3)
any documentation submitted or maintained by the provider
to support the need or the medical necessity of the service; or
(4)
other documents used to establish fees, daily payment rates,
or payments.
§371.1705.Other Funds Subject to Recoupment.
In the following circumstances, the Inspector General is authorized
to recover the funds specified, although no claims overpayment is involved:
(1)
to recover a recipient's trust fund money for distribution
to appropriate recipients or their responsible parties if those funds were
misapplied, misused, embezzled or not distributed as required by program rule
or by law;
(2)
to recover funds previously collected by a provider or
person from recipients if collection was not allowed by legal authority related
to the Medicaid Program;
(3)
to recover from a provider or person who has unsuccessfully
appealed an administrative sanction or damage or penalty, when a final order
has been entered against that provider or person, the Commission's costs related
to the administrative appeal. For the purpose of this paragraph, costs related
to the administrative appeal is defined as and includes, without limitation:
(A)
the hourly State Office of Administrative Hearings (SOAH)
costs;
(B)
court reporter costs and the costs of transcripts and copies
thereof developed in preparation for, during, or after the hearing;
(C)
the Commission's costs associated with discovery, including
the costs of depositions, subpoenas, service of process, and witness expenses;
(D)
witness expenses incurred at any time related to the administrative
appeal, including during discovery or the case in chief;
(E)
travel and per diem for witnesses and Commission staff
and witness fee and loss of pay for witnesses;
(F)
cost of preparation time, including salaries, travel and
per diem;
(G)
any additional costs associated with the appeal hearing
or the preparation for the appeal hearing; and
(H)
all costs associated with any further litigation on the
case and the preparation for that litigation;
(4)
to recover from a provider or person against whom a recoupment
or administrative penalty is assessed all investigative and administrative
costs related to the investigation that resulted in the recoupment or administrative
penalty;
(5)
to recover an unpaid debt plus any interest owed to any
state Medicaid program or to the Medicare program as the result of fraudulent
or abusive actions by a person participating in such a program. After deducting
its own administrative costs incurred in recovering the funds, the Inspector
General shall distribute the balance of the recovered amount to Medicare or
the state Medicaid program. Recoveries will be made as required by state or
federal law or pursued only upon receipt of a final adjudicated order, notice
of administrative enforcement or settlement agreement (acknowledging waiver
of due process) that validates the debt. Any appeal by the person from whom
funds are recovered is based solely upon whether there is or is not an unpaid
balance owed to the program in question; the Inspector General need not re-establish
the factual or legal basis for the underlying debt.
(6)
to recover from an ordering provider or person that causes,
as the result of the order or prescription, an overpayment to be made to themselves
or to another provider as a result of a false statement, misrepresentation,
or omission of pertinent facts on a claim, attachments to a claim, medical
records, or any other documentation used to adjudicate a claim for payment;
any documentation submitted or maintained by the provider to support payment
on individual claims or to support representations made on cost reports; any
order or prescription used by the provider to show the medical necessity of
the service or item provided by themselves or any other provider; or other
documents used to establish fees, daily payment rates, or vendor payments.
§371.1707.Recovery When Fraud or Abuse Is Involved.
(a)
Decision to recover funds. When fraud is involved, a case
may be worked administratively and criminally simultaneously. When abuse or
waste is involved, a case will be worked administratively by the Inspector
General. At the completion of the investigation, by Medicaid Integrity, of
the administrative case, the Inspector General will determine appropriate
sanctions and impose those sanctions in accordance with §371.1643 of
this subchapter. This process could include imposing payment hold during the
pendency of the investigation after sufficient evidence is developed. After
the investigation, any or all sanctions including imposing recoupment, damages
and penalties, and exclusions will proceed. The criminal investigation and
prosecution may proceed throughout this process.
(1)
Recovery of funds that are obtained through fraudulent
means by a provider or person may be recommended by the prosecuting attorney
or by an administrative determination by Medicaid Integrity or the Inspector
General.
(2)
After a possible fraud referral is made to Medicaid Integrity,
health and human service program agency staff may not attempt to recover funds
without prior approval from Medicaid Integrity. Provider payments may be withheld
to coincide with the investigation according to Medicaid Integrity procedures.
If fraud cannot be determined or if the prosecuting attorney declines the
case, the Attorney General's relevant fraud unit returns the case to Medicaid
Integrity for administrative sanction or action.
(3)
The prosecuting attorney may settle a case through a plea
bargain and decide to accept restitution payments before or after an indictment,
or a court may order restitution to the Commission for the amount of the full
overpayment or only a portion of the overpayment. In this situation or upon
conviction, a repayment schedule is developed by the court or the probation
office. Whether restitution is made in lieu of a prosecution or following
a court order, all restitution payments are ultimately returned to Medicaid
Integrity and the Inspector General to reimburse the Medicaid program for
the overpayment. If the court orders restitution that is less than the full
amount of the overpayment, Medicaid Integrity or the Inspector General may
impose a recoupment for the remaining amount of the overpayment. They may
also impose additional sanctions and/or damages and penalties.
(4)
The Inspector General is responsible for recoupment and/or
additional sanctions, as appropriate, when referred cases do not result in
prosecution. These cases are returned to Medicaid Integrity for further administrative
action.
(b)
Manner of repayment. When fraud is involved, repayment
is arranged based on an administrative hearing, a recommendation by the district
or county attorney, or a court order. Claims are collected in one lump sum
whenever possible. If the provider is financially unable to pay the indebtedness
in this manner, however, payment may be accepted in regular installments.
Installment payments are expected to be sufficiently large to re-pay the debt
within one year.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on June 7, 2004.
TRD-200403713
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 18, 2004
For further information, please call: (512) 424-6576
Only upper case or capital letters,
with no
] distinction as to type face or font
in the presentation
of an entity name
[
,
] will be recognized.
Subscript or
superscript characters cannot be entered into the computer records of the
secretary of state; consequently, such characters will not appear above or
below the other characters in the entity name. Example: H
2
O will appear as H2O. The secretary of state however will recognize
the use of either upper or lower case letters in the presentation of the entity
name.
which
] would be unlawful for the entity to conduct.
word
] "insurance"
or "surety"
must be accompanied by other words
that
[
which
] remove the implication that the entity purpose is to be an insurer.
The name may include the phrase "insurance agency
,
" [
or
]
"insurance agent
," "surety agency," or "surety agent
."
,
]
or A-1 Surety Agents, Company
would be filed.
and "surety"
] imply an
unlawful purpose as entities with these powers must be organized under the
Texas Insurance Code and these words may not be used in the name of a business
entity.
(A)
]
Example: Ace Bail Bonds, Inc.
would
not be filed.
(B)
Example: A-1 Surety Company.]
particles of speech
].
Example: The Slaughter Co. is deceptively similar to Slaughter Co.
and symbols
].
AG&X Corp;
]
(vi)
A&GX Corp;]
(vii)
] AG-X Corp.
which
] do not alter the names sufficiently to make
them readily distinguishable.
This includes the use of singular, plural
or possessive terms.
[
This applies to names that are spelled differently,
but sound alike when spoken thus making the names difficult to distinguish
upon hearing.
]
or
] Exxons
, or
Exxon's
are deceptively similar to Exxon.
Sentennial Alarm
Systems, Inc.
]
(C)
Example: Chemtech Corporation
is deceptively similar to Kemtek Incorporated.]
(D)
Example: AA Trucking is deceptively
similar to Double A Trucking.]
(E)
Example: Four Winds, Inc.,
is deceptively similar to 4 Winds Corp. and IV Winds Inc.]
(E)
Example: Acme Electric Corporation
would need a letter of consent from Acme Electrical, Inc.]
.
]
AAA
];
AAAA
];
A & B
];
;
]
(F)
AAAC.]
AA
] Car Rental, Inc.[
,
] is deceptively similar to
A & A
[
Double A
]
Car Rental, Corp.
dead,
] dissolved,
or forfeited) entities, name reservations, and name registrations for entities
on file are considered in determining the availability of the entity name
for purposes of filing with the secretary of state. Among matters not considered
are the following:
fled
] for or intends to file for bankruptcy; or
under this undesignated
head
].
under this
undesignated head
].
Olympus MotorSports, LLC
] would require a letter of consent,
authorization or no objection from the United States Olympic Committee.
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Subchapter B. OFFICE OF INSPECTOR GENERAL
Subchapter F. PILOT PROGRAM: ON-SITE REVIEWS OF PROSPECTIVE PROVIDERS
Subchapter G. LEGAL ACTION RELATING TO PROVIDERS OF MEDICAL ASSISTANCE
2.
RECOVERY OF BENEFITS WRONGFULLY RECEIVED
3.
CIVIL MONETARY PENALTIES
Subchapter G. LEGAL ACTION RELATING TO PROVIDERS OF MEDICAL ASSISTANCE Bases ].
bases
] for
this
subchapter is provided by
[
Medicaid fraud and abuse investigation
and prosecution are
] Texas Human Resources Code,
Chapters
[
Chapter
] 32[
,
] and
36, Texas Government Code §531.001
et seq., Texas Occupations Code, Chapter 102,
42 United States Code
, 42 Code of Federal Regulations, and the Social Security Act
[
§§1396b(q) and 1396h. State and federal officials may also act under
other statutes, including, but not limited to, the Deceptive Trade Practices
and Consumer Protection Act, the Texas Penal Code, the Civil Monetary Penalties
Law, and Public Law 100-93
].
2.
MEDICAID PROGRAM AUTHORITY AND VIOLATIONS
3.
ADMINISTRATIVE ACTIONS
4.
ADMINISTRATIVE SANCTIONS
5.
RECOVERY OF OVERPAYMENTS
6.
ADMINISTRATIVE DAMAGES AND PENALTIES