SECTION 371.1655. Program Compliance

A person is subject to administrative actions or sanctions if the person:

(1) is excluded or terminated for cause on or after January 1, 2011, under Title XVIII of the Social Security Act or under the Medicaid program or CHIP of any other state;

(2) commits an act for which sanctions, damages, penalties, or liability could be or are assessed by the OIG;

(3) fails to repay overpayments or other assessments after receiving written notice of the overpayment or of delinquency by the OIG or any HHS program or HHS agency;

(4) fails to repay overpayments within 60 calendar days of self-identifying or discovering an overpayment that was made to the person by the Medicaid, CHIP or other HHS program;

(5) fails to comply, when required for participation in Medicaid or other HHS program or award, with financial record and supporting document retention requirements designed to ensure that a person's claims or costs may be reviewed objectively for accuracy and validity. Such requirements include compliance with:

(A) United States Office of Management and Budget (OMB) circulars;

(B) generally accepted accounting principles (GAGAS);

(C) state or federal law; or

(D) contractual requirements;

(6) fails to comply, when required for participation in Medicaid or other HHS program or award, with standards or requirements related to allowable and valid expenses and costs, including requirements related to cost allocation methodologies and the correct application of cost allocation methodologies. Such standards include compliance with:

(A) OMB circulars;

(B) GAGAS;

(C) state or federal law; or

(D) contractual requirements;

(7) fails to establish an effective compliance program for detecting criminal, civil, and administrative violations, that promotes quality of care, contains appropriate protection for whistleblowers, and contains the core elements identified in the federal sentencing guidelines for corporations or established by the United States Secretary of Health and Human Services;

(8) fails to ensure that items or services furnished personally by, at the direction of, or on the prescription or order of an excluded person are not billed to the Titles V, XIX, XX, or CHIP programs after the effective date of the person's exclusion, whether the exclusion was imposed directly or through an MCO, or through an individual or a group billing number;

(9) fails to comply with Medicaid or other HHS program policy, a published medical assistance or other HHS program bulletin, a policy notification letter, a provider policy or procedure manual, a contract, a statute, a rule, a regulation, or an interpretation previously published or sent to the provider by an operating agency or the Commission, including statutes or standards governing occupations;

(10) fails to comply with the terms of Medicaid or other HHS program contract, provider enrollment application, provider agreement or amendment, assignment agreement, the provider certification on Medicaid or other HHS program claim form or rules or regulations published by the Commission or the medical assistance program or other HHS operating agency;

(11) enrolls as a provider as a corporation and loses or forfeits its corporate charter, and fails to obtain reinstatement retroactive to the time of the original loss or forfeiture;

(12) was found liable in a court judgment, assumed liability for repaying an overpayment in a settlement agreement or was convicted of a violation relating to performance of a provider agreement or program violation of Medicare, Texas Medicaid, other HHS program, or any other state's Medicaid program;

(13) fails to comply with any provision of the Texas Human Resources Code Chapter 32 or 36, the Texas Government Code, the Texas Health and Safety Code, or any rule or regulation issued under those codes;

(14) fails to abide by applicable federal and state law regarding persons with disabilities or civil rights;

(15) fails to correct deficiencies in provider operations, medical care, billing, records management, or reporting after receiving written notice of them from an operating agency, the Commission, or their authorized agents;

(16) defaults on repayments of scholarship obligations or items relating to health profession education made or secured, in whole or in part, by the United States Department of Health and Human Services or the state when all reasonable steps have been taken to secure repayment;

(17) fails to notify and reimburse the relevant operating agency or the Commission or their agents for services paid by Medicaid or other HHS program if the provider also receives reimbursement from a liable third party;

(18) requests from a third party liable for payment of the services or items provided to a recipient under Medicaid or other HHS program, any payment other than as authorized by 42 C.F.R. §447.20;

(19) unless otherwise allowed by law, solicits recipients or causes recipients to be solicited, through offers of transportation or otherwise, for the purpose of delivering to those recipients health care items or services or solicits for treatment or treats a child who was not accompanied by an authorized adult or who was accompanied by the provider or its affiliate to treatment;

(20) fails to include within any subcontracts for services or items to be delivered within Medicaid all information that is required by 42 C.F.R. §434.10(b);

(21) fails, as a hospital, to comply substantially with a corrective action required under 42 U.S.C. §1395ww(f)(2)(B);

(22) commits an act described as grounds for exclusion under 42 U.S.C. §1320a-7(a) (civil monetary penalties for false claims) or 42 U.S.C. §1320a-7(b) (criminal liability for health care violations);

(23) could be excluded for any reason for which the Secretary of the United States Department of Health and Human Services or its agent could exclude such person under 42 U.S.C. §1320a-7(a) (mandatory exclusion), 42 U.S.C. §1320a-7(b) (permissive exclusion), or 42 C.F.R. Part 1001 or 1003;

(24) prevents, obstructs, impedes, or attempts to impede the OIG or any other federal or state agency, division, agent, or consultant from conducting any duties that are necessary to the performance of their official functions;

(25) fails to screen all employees and contractors for exclusions from the Medicaid or other HHS program on a monthly basis and to confirm that no employees or contractors are excluded individuals or entities;

(26) fails to document that the provider and its employees and contractors are not excluded;

(27) fails to immediately inform the OIG after identification of an excluded employee;

(28) fails to immediately inform the OIG when the provider takes any action against an employee or contractor, including suspension actions, settlement agreements, and situations where an individual or entity voluntarily withdraws from the program to avoid a formal sanction;

(29) fails to refund Medicaid for funds spent, if any, for an excluded person's salary, expenses, or fringe benefits paid during the period of exclusion if those funds were reflected or calculated into a cost report or any other document used by the state to determine an individual payment rate, a statewide payment rate, or a fee;

(30) commits any act or omission described in:

(A) 42 C.F.R. §1001.801 (failure of health maintenance organizations and Competitive Medical Plans to furnish medically necessary items or services);

(B) 42 C.F.R. §1001.901 (false or improper claims);

(C) 42 C.F.R. §1001.951 (fraud and kickbacks and other prohibited activities);

(D) 42 C.F.R. §1001.1001 (exclusion of entities owned or controlled by a sanctioned person);

(E) 42 C.F.R. §1001.1051 (exclusion of individuals with ownership or control interest in sanctioned entities);

(F) 42 C.F.R. §1001.1101 (failure to disclose certain information);

(G) 42 C.F.R. §1001.1501 (default of health education loan or scholarship obligations);

(H) 42 C.F.R. §1001.1601 (violations of the limitations on physician charges); or

(I) 42 C.F.R. §1001.1701 (billing for services of assistant at surgery during cataract operations); or

(31) commits or conspires to commit a violation of §32.039(b) of the Texas Human Resources Code.

Source Note: The provisions of this §371.1655 adopted to be effective October 14, 2012, 37 TexReg 7989; amended to be effective April 15, 2014, 39 TexReg 2833; amended to be effective May 1, 2016, 41 TexReg 2941