C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.22

Current through 2024-46, November 13, 2024

Subsection 144-101-I-1.22 - FRAUD/ABUSE BY A PROVIDER, INDIVIDUAL OR ENTITY, AND SUSPENSION OF PAYMENTS

1.22-1Fraud

A. Fraud includes intentional deception or misrepresentation, oral or written, which an individual knows to be false, or does not believe to be true, made with knowledge that deception or misrepresentation could result in some unauthorized benefits. The requisite intent is present if the misrepresentation was made knowingly or with a reckless disregard for the truth.

B. Examples of conduct that could constitute fraud include, but are not limited to, the following:

1. Billings for services, supplies, or equipment that were not rendered to, or used for, MaineCare members;

2. Billings for supplies or equipment that are clearly unsuitable for the member's needs or are so lacking in quality or sufficiency for the purpose as to be virtually worthless;

3. Flagrant and persistent over utilization of medical or paramedical services with little or no regard for results, the member's ailments, condition, medical needs, or the provider's orders;

4. Claiming of costs for non-covered or non-chargeable services, supplies or equipment disguised as covered items;

5. Misuse of the "rounding rule," Section 1.03-8(J), in billing for services;

6. Material misrepresentations of dates and descriptions of services rendered, or of the identity of the member or the individual who rendered the services;

7. Duplicate billing which appears to be deliberate. This includes, but is not limited to: billing MaineCare twice for the same service or billing both MaineCare, a third party insurer, and/or the member, family, or representative for the same services, billing for the same service under different codes or different policies, billing separately for a service that is included in a per diem or other bundled rate, or billing for the same service under different provider numbers;

8. Arrangements by providers with employees, independent contractors, suppliers, and others that appear to be designed primarily to overcharge MaineCare with various devices (commissions, fee splitting) used to siphon off or conceal profits;

9. Charging to MaineCare, by subterfuge, costs not incurred or which were attributable to non-program activities, other enterprises, or personal expenses of principals;

10. Deliberately providing, or receiving medical services on the MaineCare account of another individual;

11. Deliberately billing members rather than MaineCare for covered services;

12. Concealing business activities that would prevent compliance with the provisions of the Provider Agreement;

13. Falsifying provider records in order to meet or continue to meet the conditions of participation; and

14. Soliciting, offering, or receiving a kickback, bribe, or rebate.

1.22-2Statutory Provisions

A. The State of Maine participates financially in MaineCare. Therefore, provider claims for payment from MaineCare are subject to Maine Statutes pertaining to criminal fraud including the following:

1.17-A M.R.S. §354, Theft by Deception, makes it a crime to obtain or exercise control over property of another as a result of deception, and with an intention to deprive a person thereof.

2.17-A M.R.S. §453, Unsworn Falsification, makes it a crime if a person makes a written false statement which he or she does not believe to be true, on or pursuant to, a form conspicuously bearing notification authorized by statute or regulation to the effect that false statements made therein are punishable; or with the intent to deceive a public servant in the performance of his or her official duties, he or she makes any written false statement which he or she does not believe to be true; or knowingly creates, or attempts to create a false impression in a written application for any pecuniary or other benefit by omitting information necessary to prevent statements therein from being misleading and is punishable as a Class D crime.

3. Title 17-A M.R.S. §151, the Conspiracy Statute, makes it a crime if, with the intent that conduct be performed which, if fact, would constitute a crime or crimes, a person agrees with one (1) or more others to engage in or cause the performance of such conduct.

B. The Federal Government also participates financially in MaineCare. Therefore, provider claims for payment from MaineCare are subject to federal statutes pertaining to criminal fraud including the following:

1.18 U.S.C. § 286, which makes it a crime to enter into an agreement, combination, or conspiracy to defraud the United States by obtaining or aiding to obtain payment of a false claim;

2.18 U.S.C. § 287, which makes it a crime to present a claim against the United States knowing it to be false;

3.18 U.S.C. § 371, which makes it a crime for two (2) or more persons to conspire to commit an offense against the United States or to defraud in any manner or for any purpose;

4.18 U.S.C. § 669, which makes it a crime to embezzle, steal, or intentionally misapply money, funds, property, or other assets of a health care benefit program;

5.18 U.S.C. § 1001, which makes it a crime for any person in any manner within the jurisdiction of any Department of the United States to knowingly conceal a material fact, or make false statement or representations, or make or use any false writing or document knowing it to be false;

6.18 U.S.C. § 1035, which makes it a crime for any person involved in any manner with a health care benefit program to knowingly and willfully makes false, fictitious, or fraudulent oral or written statement or representation of a material fact;

7 18 U.S.C. § 1341, which makes it a crime for any person to use the postal service for purposes of executing or intending to execute any fraudulent scheme or artifice;

8.18 U.S.C. § 1347, which makes it a crime for any person to knowingly and willfully defraud, or obtain by false pretense, through the delivery of or payment for health care benefits any money or property owned by any health care benefit program;

9.18 U/S.C. § 1516, which makes it a crime for any person to influence, obstruct, or impede a federal auditor in the performance of official duties;

10.18 U.S.C. § 1518, which makes it a crime for any person to prevent, obstruct, mislead, or delay the communication of information or records relating to a violation of a federal health care offense to a criminal investigator; and 11. 31 U.S.C. § 3729(c)False Claims Act - See Chapter I, Appendix #3, of this Manual.

Because MaineCare is subject to federal statutes in order to receive federal funding, compliance with federal regulations and/or law is necessary, and federal law will supersede any state regulation that may be contradictory.

C. Section 42 U.S.C. § 1320a-7(b) of the Social Security Act provides that:

1.Whoever

a. Knowingly and willfully makes or causes to be made any false statement or representation of a material fact in application for any benefit or payment under the State Plan approved under this Title;

b. At any time knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment;

c. Having knowledge of the occurrence of any event affecting:

(i) His or her initial or continued right to any such benefit or payment; or

(ii) The initial or continued right to any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent fraudulent to secure such benefits or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized; or

d. Having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts such benefit or payment or any part thereof to a use other than for the use and benefit of such other person;

e. Presents or causes to be presented a claim for a physician's service for which payment may be made under a program under the State Plan approved under this Title and knows that the individual who furnished the service is not licensed as required, shall in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the program, shall be guilty of a felony and upon conviction thereof, fined no more than twenty-five thousand dollars ($25,000) or imprisoned for not more than five (5) years or both or in the case of such a statement, representation, concealment, failure, or conversion by another person, be guilty of a misdemeanor and upon conviction thereof fined not more than ten thousand dollars ($10,000) or imprisoned for not more than one (1) year, or both.

In addition, in any case where an individual who is otherwise eligible for assistance under a State Plan approved under this Title is convicted of an offense under the preceding provisions of this Sub-Section, the state may at its option (not withstanding any other provision of this Title or of such Plan) limit, restrict, or suspend the eligibility of that individual for such period (not exceeding one (1) year) as it deems appropriate; but the imposition of a limitation, restriction, or suspension with respect to the eligibility of any individual under this sentence shall not affect the eligibility of any other person for assistance under the plan, regardless of the relationship between that individual and such other person.

2. Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind:

a. In return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under this Title, or

b. In return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing or ordering any good, facility, service, or item for which payment may be made in whole or in part under this title, shall be guilty of a felony and upon conviction thereof, be fined not more than twenty-five thousand dollars $25,000 or imprisonment for not more than five (5) years, or both.

3. Whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly overtly or covertly, in cash or kind to any person to induce such person:

a. To refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under this title, or

b. To purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility service, or item for which payment may be made in whole or in part under this Title, shall be guilty of a felony and upon conviction thereof shall be fined not more than twenty-five thousand dollars ($25,000) or imprisoned for not more than five (5) years, or both.

4. Whoever knowingly and willfully makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation of any institution or facility in order that such institution or facility may qualify (either upon initial certification) as a hospital, nursing facility, ICF/IID Intermediate Care Facility for Individuals with Intellectual Disability, or home health agency (as those terms are employed in this title) shall be guilty of a felony and upon conviction thereof shall be fined not more than twenty- five thousand dollars ($25,000) or imprisoned for not more than five (5) years, or both.

5. Whoever knowingly and willfully:

a. Charges a member, for any service provided to that member under a State Plan approved under this Title, money or other consideration at a rate in excess of the rates established by the State, or

b. Charges, solicits, accepts, or receives, in addition to any amount otherwise required to be paid under a State Plan approved under this Title, any gift, money, donation, or other consideration (other than a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to the patient):

i. As a precondition of admitting a patient to a hospital,

ii. As a requirement for the patient's continued stay in such a facility when the cost of the services provided therein to the patient is paid for (in whole or in part) under the State Plan, shall be guilty of a felony and upon conviction thereof shall be fined not more than twenty-five thousand dollars ($25,000) or imprisoned for not more than five (5) years or both.

1.22-3Suspension of Payment Upon Credible Allegation of Fraud

A. The Department shall suspend payments to a provider upon a Credible Allegation of Fraud for which an investigation is pending under the MaineCare program or any Medicaid Program. A suspension of payments under this subsection is not a sanction under subsection 1.20.A Credible Allegation of Fraudis an allegation that the department has verified, from any source, which has one (1) or more indicia of reliability and which allegation, facts and evidence have been carefully reviewed by the Department, on a case-by-case basis. The source of an allegation may be, but is not limited to, fraud hotline complaints, claims data mining or patterns identified through provider audits, civil false claims cases and law enforcement investigations.

B. The Department shall send notice to a provider of a suspension of payments within five (5) days after suspending payments unless the Department is requested in writing by a law enforcement agency to delay such notice. Such request shall temporarily withhold the sending of notice up to thirty (30) days after suspending payments. A request for delay may be renewed in writing up to twice, but in no event may the time for sending of notice exceed a total of ninety (90) days after payment suspension.

C. The notice must include or address the following:

1. State that payments are being suspended in accordance with the relevant federal and state provision.

2. Set forth the general allegations as to the nature of the suspension action. The notice need not disclose any specific information concerning an ongoing investigation.

3. State that the suspension is for a temporary period and cite the circumstances under which the suspension will be terminated.

4. Specify, when applicable, the type of MaineCare claims or business units as to which the suspension is effective.

5. Inform the provider of the right to timely submit written evidence for consideration by the Department in an informal review.

6. Set forth the administrative appeals process and corresponding citations to this Chapter.

D. The suspension of payments is for a temporary period. Payment suspension will not continue after either of the following:

1. The determination is made by the investigating or prosecuting authorities that there is insufficient evidence of fraud by the provider; or

2. Civil and criminal legal proceedings related to the provider's alleged fraud are completed.

E. The appeal process provided by subsection 1.23 below is available to a provider whose payments have been suspended in whole or in part. The suspension of payments shall not be stayed during the informal review or appeal. A request for informal review may include or consist of a request to the Department to find good cause not to continue a payment suspension or to convert a suspension to one only in part, in accordance with any of the criteria set forth in sub-sections G or H.

F. A provider whose payments have been suspended in whole or in part may request expedited informal review, which the Department in its discretion may accommodate. The request must be in writing and included within the request for informal review.

G. The Department may find that good cause exists not to suspend payments, or not to continue a payment suspension, when:

1. Law enforcement officials specifically have requested that a payment suspension not be imposed because it may compromise or jeopardize an investigation;

2. Other available remedies implemented by the state more effectively or quickly protect Medicaid funds;

3. The Department determines, based upon the submission of written evidence by the provider that is the subject of the payment suspension, that the suspension should be removed;

4. Member access to items or services would be jeopardized by a payment suspension because either the provider is the sole community physician or the sole source of essential specialized services in the community, or the provider services a large number of members within a HRSA-designated medically underserved area;

5. The relevant law enforcement entity declines to certify that a matter continues to be under investigation as required by 42 C.F.R. § 455.23(d)(3) (2011), or

6. The Department determines that payment suspension is not in the best interests of the MaineCare program.

H. The Department may find that good cause exists to suspend payments only in part, or to convert a payment suspension previously imposed in whole to one only in part, when:

1. Member access to items or services would be jeopardized by a payment suspension in whole or in part because either the provider is the sole community physician or the sole source of essential specialized services in the community, or the provider services a large number of members within a HRSA-designated medically underserved area;

2. The Department determines, based upon the submission of written evidence by the provider that is the subject of the payment suspension, that the suspension should be imposed only in part;

3. The Credible Allegation of Fraud focuses solely and definitively on only a specific type of claim or arises from only a specific business unit of a provider, and the Department determines and documents in writing that a payment suspension in part would effectively ensure that potentially fraudulent claims were not continuing to be paid;

4. The relevant law enforcement entity declines to certify that a matter continues to be under investigation as required by 42 C.F.R. § 455.23(d)(3) (2011); or

5. The Department determines that payment suspension only in part is in the best interests of the MaineCare program.

I. Upon a Final Informal Review Decision by the Department, a provider whose payments have been suspended in whole or in part may request expedited appeal to an administrative hearing, which the Department in its discretion may accommodate. The request for expedited hearing must be in writing and included within the appeal for administrative hearing and shall specify any scheduling restraints, location restraints, and the amount of time the provider estimates is required for its case at hearing. A request for expedited hearing waives the twenty-day (20) notice requirement provided by Section 1.23-1(A) below.

J. In an administrative appeal, the Department must show that, at the time of its determination of the existence of a Credible Allegation of Fraud for which an investigation is pending, a sufficient basis existed for that determination. If the Department has made a finding as to lack of good cause regarding a payment suspension, the provider must demonstrate by a preponderance of evidence that the Department erred upon informal review in its finding.

K. Upon any final determination that monies are owed by the provider to the Department, and thirty-one (31) days after exhaustion of all administrative appeals and any judicial review available under Title 5, Chapter 375, the Department may retain and apply as an offset any payments that have been suspended by the Department pursuant to this subsection. The amount retained pursuant to this Subsection may not exceed the amount determined to be finally owed.

C.M.R. 10, 144, ch. 101, ch. I, § 144-101-I-1, subsec. 144-101-I-1.22