SECTION 371.1707. Permissive Exclusion

(a) The OIG may exclude from participation in Titles V, XVIII, XIX, XX, or CHIP programs any person if it determines that the person:

(1) commits a program violation;

(2) is affiliated with a person who commits a program violation;

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

(4) is a person not enrolled as a provider whose health care license, certification, or other qualifying requirement to perform certain types of service is revoked, suspended, voluntarily surrendered, or otherwise terminated such that the provider is unable to legally perform their profession due to loss of their license, certification, or other qualifying requirement;

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

(6) is found liable for any violation under subsection (c) of Texas Human Resources Code §32.039 that resulted in injury to a person who is 65 years of age or older, a person with a disability, or a person younger than 18 years of age;

(7) is found liable for any violation under subsection (c) of Texas Human Resources Code §32.039 that did not result in injury to a person 65 years of age or older, a person with a disability, or a person younger than 18 years of age; or

(8) has been excluded from participation in Medicare or any other federal health care programs.

(b) The OIG may exclude a person without sending prior notice of intent to exclude in the following circumstances:

(1) The OIG determines that the person is or may be placing the health and/or safety of persons receiving services under an HHS program at risk;

(2) a person fails:

(A) to grant immediate access to the OIG or to a requesting agency upon reasonable request;

(B) to allow the OIG or a requesting agency to conduct any duties that are necessary to the performance of their official functions; or

(C) to provide to the OIG or a requesting agency as requested copies or originals of any records, documents, or other items, as determined necessary by the OIG or the requesting agency;

(3) the person engages in acts that violate 42 C.F.R. §1001.1401 (hospital's failure to comply with corrective action plan required by the Centers for Medicare and Medicaid Services);

(4) the person engages in acts that violate 42 C.F.R. §1001.1501 (default on health education loan or scholarship obligations);

(5) the person engages in acts that violate 42 C.F.R. §1001.901 (false or improper claims);

(6) the person engages in acts that violate 42 C.F.R. §1001.951 (fraud and kickbacks and other prohibited activities);

(7) the person engages in acts that violate 42 C.F.R. §1001.1601 (violations of the limitations on physician charges);

(8) the person engages in acts that violate 42 C.F.R. §1001.1701 (billing for services of assistant at surgery during cataract operations); or

(9) the person has been excluded from the Medicaid program and obtains a new provider number without completing the reinstatement and re-enrollment process as required by §371.1719 of this division (relating to Recoupment of Overpayments Identified by Audit).

(c) When the OIG issues a final notice of exclusion, the final notice states:

(1) the requirements and procedures for reinstatement;

(2) whether the OIG will also cancel any agreement held by the person to be excluded; and

(3) a statement of the person's right to request a formal administrative appeal hearing regarding the exclusion.

(d) Scope and effect of exclusion.

(1) An exclusion becomes effective on the following:

(A) the date of the final notice of exclusion, if the exclusion is based on a health or safety risk as described in subsection (b)(1) of this section;

(B) the date of the original request for records, if the exclusion is based on failure to provide access as described in subsection (b)(2) of this section;

(C) if the exclusion is upheld at an administrative hearing based upon subsection (b)(1) of this section, the effective date is made retroactive to the date of the final notice; and

(D) if the exclusion is upheld at an administrative hearing based upon subsection (b)(2) of this section, the effective date is made retroactive to the date of the original request for records.

(2) An exclusion remains in effect for the period indicated in the final notice of exclusion. The person is not eligible to apply for reinstatement or re-enrollment as a provider until the exclusion period has elapsed.

(3) Unless a person is reinstated and re-enrolled as a provider in the Texas Medicaid program, no payment is made by the Medicaid program for any item or service furnished or requested by an excluded person on or after the effective date of exclusion.

(4) An excluded person is prohibited from:

(A) personally or through a clinic, group, corporation, or other association or entity, billing or otherwise requesting or receiving payment from any Title V, XVIII, XIX, XX, or CHIP programs for items or services provided on or after the effective date of the exclusion;

(B) providing any service pursuant to the Medicaid program, whether or not the excluded person directly requests Medicaid program payment for such services;

(C) assessing care or ordering or prescribing services, directly or indirectly, to Title V, XVIII, XIX, XX, or CHIP recipients after the effective date of the person's exclusion; and

(D) accepting employment by any person whose revenue stream includes funds from a Title V, XVIII, XIX, XX, or CHIP program.

(5) If, after the effective date of an exclusion, an excluded person submits or causes to be submitted claims for services or items furnished within the period of exclusion, the person 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 in addition to sanctions or penalties by the OIG.

(6) In accordance with federal and state requirements, when the OIG excludes a person, the OIG may notify each state agency administering or supervising the applicable state health care program, as well as the appropriate state or local authority or agency responsible for licensing or certifying the person excluded. If issued, notification includes:

(A) the facts, circumstances, and period of exclusion;

(B) a request that appropriate investigations be made and any necessary sanctions or disciplinary actions be imposed in accordance with applicable law and policy; and

(C) a request that the state or local authority or agency fully and timely inform the OIG with respect to any actions taken in response to the OIG's request.

(7) The OIG notifies the public of all persons excluded.

(8) A person who has been excluded from the Texas Medicaid or CHIP program is excluded from the Texas Medicaid and/or CHIP program in every other state and from the Medicare program pursuant to each program's applicable state or federal authority. When exclusion from the Texas Medicaid and/or CHIP program is based on the person's exclusion from Medicare, or from another state's Medicaid or CHIP program, the prohibitions enumerated in paragraph (4) of this subsection may apply.

Source Note: The provisions of this §371.1707 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