SECTION 371.1011. Recommendation Criteria

(a) A felony or misdemeanor conviction, as defined in 42 C.F.R. §1001.2, under Texas law, the laws of another state, or federal law, may affect a provider’s and/or person’s ability to participate.

(b) The OIG may recommend denial of an enrollment application of the applicant or a person required to be disclosed in accordance with §371.1005 of this subchapter (relating to Disclosure Requirements) on the basis of information revealed through a background check on the applicant, provider, or a person required to be disclosed. A background check may include:

(1) information concerning the licensing status of the health care professional;

(2) information contained in the criminal history record information check performed in accordance with Texas Government Code §531.1032;

(3) a review of federal databases;

(4) the pendency of an open investigation by the OIG; and

(5) any other reason that the OIG determines appropriate.

(c) On a case-by-case basis, the OIG may recommend approval of an enrollment application despite the existence of a criminal history.

(1) When evaluating criminal history record information, the OIG takes into consideration:

(A) the extent to which the conduct relates to the services provided or to be provided under Medicaid;

(B) the degree to which the provider, applicant, or person required to be disclosed does or will interact with Medicaid recipients as a provider; and

(C) any previous evidence that the provider, applicant, or person required to be disclosed engaged in fraud, waste, or abuse under Medicaid.

(2) The OIG also considers the following circumstances:

(A) the number of criminal convictions as defined in 42 C.F.R. §1001.2;

(B) the nature and seriousness of the crime;

(C) whether the individual or entity has completed the sentence, punishment, or other requirements that were imposed for the crime and, if so, the length of time since completion;

(D) in the case of an individual, the age of the individual at the time the crime was committed;

(E) whether the crime was committed in connection with the individual's or entity's participation in Medicaid or other HHS programs;

(F) the extent of the individual's or entity's rehabilitation efforts and outcome;

(G) the conduct of the individual or entity, and the work history of the individual, both before and after the crime;

(H) the relationship of the crime to the individual or entity's fitness or capacity to remain a provider or become a provider;

(I) whether approving the individual or entity would offer the individual or entity the opportunity to engage in further criminal activity;

(J) the extent to which the individual or entity provides relevant information or otherwise demonstrates that approval should be granted; and

(K) any other circumstances that HHSC determines are relevant to the individual or entity's eligibility.

(3) The provider is responsible for providing to HHSC or to the OIG, within three business days of an IG request, information related to the degree to which a person could interact with Medicaid recipients as a provider.

(4) In all instances, the OIG takes into consideration evidence of multiple or repeated instances of the same or similar conduct.

(d) In addition to the considerations outlined in subsection (c) of this section, the OIG specifically takes into consideration the following conduct that may be contained in criminal history record information of providers, applicants, or persons required to be disclosed:

(1) for provider types that have or may have direct access to recipients in their capacity as a provider:

(A) conduct involving healthcare fraud;

(B) conduct involving abuse of patients, minors, the elderly, or the disabled;

(C) conduct involving prohibited sexual conduct or involving children as victims;

(D) conduct against the person such as homicide, kidnapping, or assault;

(E) conduct involving perjury or crimes of other falsification, such as tampering with physical evidence or governmental record;

(F) conduct involving insurance fraud;

(G) conduct involving illegal manufacture, use, possession or distribution of controlled substances; and

(H) conduct involving theft, including theft by check;

(2) for provider types that may transport recipients and guardians in their capacity as a provider:

(A) conduct involving healthcare fraud;

(B) conduct involving abuse of patients, minors, the elderly, or the disabled;

(C) conduct involving prohibited sexual conduct or involving children as victims;

(D) conduct against the person such as homicide, kidnapping, or assault;

(E) conduct involving perjury or tampering with a governmental record;

(F) conduct involving intoxication and operating a motor vehicle, including driving while intoxicated, intoxication assault, and intoxication manslaughter;

(G) conduct involving illegal manufacture, use, possession, or distribution of controlled substances;

(H) conduct involving criminal trespass;

(I) conduct involving extortion; and

(J) conduct involving promotion of prostitution or human trafficking;

(3) for provider types that may have interaction with or access to recipients, recipients' homes, or recipients' property in their capacity as a provider:

(A) conduct involving healthcare fraud;

(B) conduct involving abuse of patients, minors, the elderly, or the disabled;

(C) conduct involving prohibited sexual conduct or involving children as victims;

(D) conduct against the person such as homicide, kidnapping, or assault;

(E) conduct against property such as theft, burglary, property damage, or criminal trespass;

(F) conduct involving breach of fiduciary duty;

(G) conduct involving illegal manufacture, use, possession, or distribution of controlled substances; and

(4) for provider types that have no recipient interaction or access:

(A) conduct involving healthcare fraud;

(B) conduct involving breach of fiduciary duty or a deceptive business practice; and

(C) conduct involving theft, including theft by check.

(e) The OIG may recommend permanent denial of an enrollment application if:

(1) the applicant, provider, or a person required to be disclosed has been convicted, as defined in 42 C.F.R. §1001.2, of an offense arising from a fraudulent act under Medicaid or other HHS programs; and

(2) that fraudulent act resulted in injury to an elderly person, a person with a disability, or a person younger than 18 years of age.

(f) The OIG may recommend denial of any enrollment application, regardless of provider type, if it determines in its discretion that the applicant may pose an increased risk for committing fraud, waste, or abuse or may demonstrate unfitness to provide or bill for medical assistance items or services. In addition to the applicant's criminal, regulatory, and administrative sanction history, the OIG considers all applicable circumstances, including the following, if applicable:

(1) the applicant, a person required to be disclosed, or a person with an ownership or control interest in the provider did not submit complete, timely, and accurate information, failed to cooperate with any provider screening methods, or refused to permit access for a site visit;

(2) the applicant or a person required to be disclosed has failed to repay overpayments to Medicaid, CHIP, or other HHS programs;

(3) the applicant, provider, or a person required to be disclosed pursuant to §371.1005 of this subchapter, has been suspended or prohibited from participating, excluded, terminated, or debarred from participating in any state Medicaid, CHIP or other HHS agency program;

(4) the applicant, provider, or a person required to be disclosed has participated in Medicaid or CHIP program and failed to bill for medical assistance or refer clients for medical assistance within the 12-month period prior to submission of the enrollment application;

(5) the applicant, provider, or a person required to be disclosed has falsified any information on the enrollment application; and

(6) The OIG is unable to verify the identity of the applicant, provider, or a person required to be disclosed.

(g) Healthcare professionals who are licensed and in good standing with a Texas licensing authority that requires the submission of fingerprints for the purpose of conducting a criminal history record information check are not subject to an additional criminal history record information check by the OIG for the purposes of determining eligibility to enroll, unless performing a criminal history record information check is required or appropriate for other reasons, including for conducting an investigation of fraud, waste, or abuse or where required by 42 C.F.R. §455.450.

Source Note: The provisions of this §371.1011 adopted to be effective December 31, 2012, 37 TexReg 10189; amended to be effective May 1, 2016, 41 TexReg 2941; amended to be effective February 12, 2017, 42 TexReg 417