C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.20

Current through 2024-46, November 13, 2024

Subsection 144-101-I-1.20 - SANCTIONS/RECOUPMENTS

1.20-1 Grounds for Sanctioning and/or Recouping MaineCare payments from Providers, Individuals or Entities

The Department may impose sanctions and/or recoup identified overpayments against a provider, individual, or entity for any one or more of the following reasons:

A. Presenting or causing to be presented for payment any false or fraudulent claim for services or merchandise;

B. Submitting or causing to be submitted false information for the purpose of obtaining greater compensation than that to which the provider is legally entitled;

C. Submitting or causing to be submitted false information for the purpose of meeting prior authorization requirements;

D. Failing to retain or disclose or make available to the Department or its Authorized Entity contemporaneous records of services provided to MaineCare members and related records of payments;

E. Failing to provide and maintain quality services to MaineCare members within accepted principles and values of medical professionalism and national standards of care;

F. Engaging in a course of conduct or performing an act deemed improper, abuse of the MaineCare Program, or continuing such conduct following notification that said conduct should cease;

Examples of such abusive acts include, but are not limited to, the following:

1. Furnishing services or supplies which are determined by the Department to be substantially in excess of the needs of, or harmful to, individuals, or to be of inferior quality, or not of usual or customary quality;

2. Soliciting or accepting from a member, his or her family, friend or other representative an amount over and above the reasonable charge amount or fee schedule for covered services (supplementation);

3. Maintaining a separate schedule of charges for MaineCare and non-MaineCare patients that results in higher charges for MaineCare than for non-MaineCare patients;

4. Billing based on "gang" visits, (for example, a dental provider in a school setting, or a physician visits a nursing home, walks through the facility, and bills for individual nursing home visits, without rendering any specific service to individual patients).

G. Breaching the terms of the MaineCare Provider Agreement, and/or the Requirements of Section 1.03-8 for provider participation;

H. Over utilizing MaineCare by inducing, furnishing, or otherwise causing a member to receive service(s) or merchandise not otherwise required or requested by the member;

I. Rebating or accepting a fee or portion of a fee or charge for a MaineCare member referral (kickback);

J. Physician self-referrals determined to be in violation of Title XVIII, § 1877 of the Social Security Act ( 42 U.S.C. § 1395nn) , which prohibits certain physician self-referrals for designated health services, and 42 C.F.R. §§ 1001.951 /952 and 42 C.F.R. § 411.353.

Designated health services include any of the following items or services:

1. Clinical laboratory services;

2. Physical therapy services;

3. Occupational therapy services;

4. Radiology services, including MRIs, CAT scans, and ultrasound services;

5. Radiation therapy services and supplies;

6. Durable medical equipment and supplies;

7. Parenteral and enteral nutrients, equipment, and supplies;

8. Prosthetics, orthotics, and prosthetic devices and supplies;

9. Home health services;

10. Outpatient prescription drugs;

11. Inpatient and outpatient hospital services; and

12. Speech-language pathology services

K. Violating the applicable provision of any law governing benefits governed by this Manual, or any rule or regulation promulgated pursuant thereto;

L. Submission of a false or fraudulent application for provider status;

M Violation of any laws, regulations or code of ethics governing the conduct of occupations or professions or regulated industries;

N. Conviction of a criminal offense relating to performance of a Provider Agreement with the State, negligent practice resulting in death or injury to patients, or misuse or misapplication of program funds;

O. Failure to meet standards required by state or federal law for participation (e.g. licensure or certification requirements);

P. Documented practice of charging members for services over and above the amount paid by the Department and/or charging members for services prior to receipt of MaineCare payments;

Q. Failure to correct deficiencies in provider operations in accordance with an accepted plan of correction after receiving written notice of these deficiencies from the Department;

R. Formal reprimand or censure by an association of the provider's peers for unethical practices;

S. Suspension, exclusion or termination from participation in another governmental medical program, such as Medicare, Workers' Compensation, Children With Special Health Needs Program, and Rehabilitation Services, for fraudulent or abusive practices;

T. Conviction for fraudulent billing practices, negligent practice, or patient abuse;

U. Failure to repay or make arrangements to repay overpayments or payments made in error;

V. Failure to return money paid by members to a provider for covered services rendered during any period of MaineCare eligibility, including failing to pay back members for services for which they were charged when they have eligibility determined retroactively and there is evidence of notification of retroactive eligibility for the member;

W. Unauthorized use of a primary care provider's MaineCare Identification number as described in Section 1.03-8;

X. Breach of the terms of legal and binding contract(s) with contractor(s) or subcontractor(s) who provide their contractual services to MaineCare members; or Y. Failure to abide by the provisions of 42 C.F.R. § 1000et seq., pertaining to the exclusion of individuals and entities;

Z. For an organization or entity that is an HMO or any entity furnishing services under a waiver approved under 42 U.S.C. § 1396n(b)(1), having a substantial contractual relationship with an individual or entity that could be excluded. A substantial contractual relationship is one in which the sanctioned individual or entity has direct or indirect business transactions to more than $25,000 or five percent (5%) of the organization or entity's total operating expenses, whichever is less. Business transactions include but are not limited to contracts, agreements, purchase orders or leases to obtain services, supplies, equipment, space or salaried employment; and

AA. Conviction of a crime that occurred while performing services as a health care worker or provider.

BB. Failure to provide information to the Department or to otherwise respond to Departmental requests for information within a reasonable timeframe established by the Department.

1.20-2Sanction Actions

The Department may impose the following sanctions against providers, individuals or entities based on the grounds specified in Section 1.20-1, in accordance with applicable state and federal rules and regulations.

A. Termination/Exclusion from participation in MaineCare;

B. Suspension of participation in MaineCare;

C. Limitation of services for which the Provider is authorized to perform and receive payment;

D. Withholding or offset of future payments toward recoupment of prior MaineCare reimbursements;

E. Transfer to a closed-end Provider Agreement not to exceed twelve(12) months or the shortening of an already existing closed-end Provider Agreement;

F. If the provider is a nursing facility or an ICF-IID Intermediate Care Facility for Individuals with Intellectual Disability (as defined in Chapter II, Section 67 or Section 50 of this Manual), and if the grounds for this sanction are based on the provider's failure to comply with 42 U.S.C. § 1396r, Subsections (b) Requirements Relating to Provision of Services, (c) Requirements Relating to Residents' Rights, and/or (d) Requirements Relating to Administration and Other Matters (refer to Section 1.20-1(N) of this Manual), then the Department may sanction the provider by denying payment for all MaineCare admissions which take place after the date on which the Department gives notice to both the provider, and to the public, that the provider is out of compliance with 42 U.S.C. § 1396(b), (c) and/or (d);

Notwithstanding the delineation of provider appeal rights in Section 1.23-1(A) of this Manual, this sanction may be enforced immediately if the noncompliance jeopardizes the health and safety of residents or three (3) months after the facility is notified of the noncompliance if the facility has not been brought into compliance within that three-month period. Hence, under these particular circumstances, this sanction may be enforced prior to and during the appeal process.

G. Forfeiture of any payment for services, supplies or goods, associated with grounds for sanctioned providers;

H. Imposition of a penalty due to lack of adequate documentation. When the Department proves by a preponderance of the evidence that a provider has violated MaineCare requirements because it lacks mandated records for MaineCare covered goods or services, the Department in its discretion may impose the following penalties:

1. A penalty equal to one hundred percent (100%) recoupment of MaineCare payments for services or goods if the provider has failed to demonstrate by a preponderance of the evidence that the disputed goods or services were medically necessary, MaineCare covered services, and actually provided to eligible MaineCare members.

2. A penalty equal to twenty-five percent (25%) where the provider's records lack a required signature from a member or the member's guardian.

3. A penalty equal to twenty-percent (20%) recoupment if the provider is able to demonstrate by a preponderance of the evidence that the disputed goods or services were medically necessary, MaineCare covered services, and actually provided to eligible MaineCare members. The penalty will be applied against each MaineCare payment associated with the records at issue.

Following a request from a provider to impose a recoupment of a lower percentage than twenty percent (20%), the Department may consider the following factors as the basis for its decision:

a.The nature and extent of the identified violations;

b.The impact or potential impact of the violation(s) on members;

c.The impact or potential impact of the violation on administration of the MaineCare program;

d.The financial impact of the violation on MaineCare;

e.The provider's acceptance of responsibility;

f.Any history of prior violations;

g.Any quality assurance, licensing, or other notices of deficiency;

h.Any other factor the Department finds relevant to its consideration.

I.Plan of Corrective Action (POCA)

Require the provider to submit a plan of correction to the Department for review and approval. Failure to provide a plan of correction satisfactory to the Department within the time specified may result in the Department choosing to impose different and/or additional sanction(s) on the provider. The plan of correction must be a specific plan which describes how the provider will correct or address the identified deficiency (event, incident, or risk), including the actions the provider will undertake to bring about correction. The plan of correction must:

1. Address correction of the specific deficiencies cited;

2. Address all identified areas where the correction of all related deficient circumstances will be implemented;

3. Identify specific actions/steps the provider will complete to prevent the identified deficiency from recurring. The specific events cited may not represent all instances within the site/services where the practice is deficient;

4. Specify the date or frequency when each element of the plan will occur. Terms such as "frequently," "periodically," "as needed," and "ongoing" lack the necessary specificity;

5. Identify, by title and name, the individual(s) responsible for implementing and monitoring the plan;

6. Provide dates by which all components of the plan will be implemented and when the corrections will be completed. The length of time to correct the deficiency must be as soon as possible; and

7. Not duplicate or closely parallel a previously submitted and failed plan of correction Providers may satisfy the plan of correction requirement by sharing a copy of a plan of correction approved by another Office or Division within the Department for the identical violation(s) for which OMS sought the plan of correction.

J.Impose a suspension of referrals to a provider;

K.Deny or pend any enrollment applications submitted by a provider;

L.Limit the number of service locations a provider may enroll; and

M.Limit the number of MaineCare members the provider may serve.

1.20-3Rules Governing the Imposition and Extent of Sanction

A.Imposition of Sanction

The decision to impose a sanction shall be the responsibility of the Commissioner of DHHS, who may delegate sanction responsibilities to a designee.

1. The following factors may be considered in determining the sanction(s) to be imposed:

a. Nature and seriousness of the offense(s);

b. Extent of violation(s);

c. History of prior violation(s);

d. Prior imposition of sanction(s);

e. Prior provision of provider education;

f. Whether a lesser sanction will be sufficient to remedy the problem; and

g. Actions taken or recommended by peer review groups, other payers, or licensing boards, if applicable.

2. Where a provider, individual or entity, has been convicted of defrauding the MaineCare Program, or has been previously suspended due to MaineCare Program abuse, or has been terminated from the Medicare Program for abuse, the Department shall institute proceedings to terminate participation of the provider, individual or entity, from the MaineCare Program.

3. Nursing facilities that fail to comply with state licensing regulations may be subject to the imposition of sanctions and/or federal penalties as described in Chapter 22, (Enforcement), of the Department's policy titled: Regulations Governing the Licensing and Functioning of Skilled Nursing Facilities and Nursing Facilities.

B.Scope of Sanction

1. A sanction may be applied to a provider, individual, or entity, or to all known affiliates of a provider, provided that each decision to include an affiliate is made on a case-by-case basis after giving due regard to all relevant facts and circumstances.

2. Suspension or termination from participation of any provider, individual or entity shall preclude such provider from submitting claims for payment, either personally or through claims submitted by any clinic, group, corporation or other association to the Department or its Authorized Entity for any services or supplies provided under MaineCare except for those services or supplies provided prior to the suspension or termination.

3. No clinic, group, corporation or other association which is a provider of services shall submit claims for payment to the Department or its Authorized Entities for any services or supplies provided by a person within such organization who has been suspended or terminated from participation in MaineCare except for those services or supplies provided prior to the suspension or termination.

4. When a provider of services that is a clinic, group, corporation or other association are in violation of the provisions of Section 1.20-3(B)(3), the Department may suspend or terminate such organization and/or any individual within said organization that is responsible for such violation, and administer other sanctions.

C.Notice of Sanction

1. When a provider, individual or entity, has been sanctioned and/or a recoupment has been imposed, the Department shall notify, if appropriate, the applicable professional society, Board of Registration or Licensure, his or her employer, and federal or state agencies of the findings made and the sanctions imposed.

2. Once a provider, individual or entity's participation in MaineCare has been suspended or terminated, the provider must notify all affected MaineCare members within thirty (30) days that the provider, individual or entity, has been suspended or terminated and must arrange orderly transfer of records to other providers as applicable.

1.20-4Mandatory and Permissive Exclusions from MaineCare

The Department may exclude individuals, entities, and providers from participation in MaineCare for any reason identified in 42 C.F.R. Part 1001 or 1003.

1.20-5Notice of Violation/Recoupment

If the Department has information that indicates that a provider may have submitted bills and/or has been practicing in a manner inconsistent with the program requirements, and/or may have received payment for which he or she may not be properly entitled, the Department shall notify the provider of the discrepancies noted. The written notification shall be sent to the provider allowing at least sixty (60) calendar days from the date of the notice before the effective date of any further action or imposition of sanction pursuant to state and federal laws, unless the life and/or safety of the member is felt to be endangered which would be cause for immediate sanction, and shall set forth:

A. The nature of the discrepancies or violations;

B. The dollar value of such discrepancies or violations;

C. The method of computing such dollar value may be from:

1. Extrapolation from a systematic random sampling of records,

2. A calculation from a selective sample of records, or 3. A total review of all records.

D. Any further actions to be taken or sanctions to be imposed by the Department; and

E. Any actions required of the provider, and the right to request an informal review and administrative hearing, as set forth in Section 1.23. An adverse decision may be appealed pursuant to the procedures outlined in Section 1.23 of this Chapter. A request for review or proceedings there under, does not stay the sanction imposed by the Department.

1.20-6Suspension or Withholding of Payments Pending a Final Determination

The Department may impose a sanction or withhold payment when the Department has obtained an order from Superior Court allowing interim sanctions upon showing a substantial likelihood that overpayment or fraud has occurred and that substantial harm to the Department will result from further delay or when the Department has taken final agency action and the provider has waived or exhausted its right to judicial review.

No court order is required when the Department suspends payments in accord with subsection 1.22-3.

The Department may terminate or suspend the participation of a provider in MaineCare pursuant to federal and state rules and regulations.

1.20-7Procedures Following a Suspension

Except as otherwise directed by the Department, the Provider under suspension shall:

1. Not accept new members for services unless otherwise specifically requested in writing on an individual case basis by the Department.

2. Furnish the Department with access to all information pertaining to each individual member presently being cared for by the Provider in such detail as deemed necessary by the Department.

C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.20