Affected: IC 4-21.5-3-6; IC 4-21.5-3-7; IC 4-21.5-4; IC
12-15-1-22; IC 35-48-1-9
Sec. 6.
(a) The
following definitions apply throughout this section:
(1) "Business relationship" means an entity
or individual that meets one (1) or more of the following:
(A) Has a direct or indirect ownership
interest of five percent (5%) or more in the provider.
(B) Is the owner of a whole or part interest
in any mortgage, deed or trust, note or other obligation secured (in whole or
in part) by the provider or any of the property assets thereof, in which whole
or part interest is equal to or exceeds five percent (5%) of the total property
and assets of the provider.
(C) Is
an officer or director of the provider, if the provider is organized as a
partnership.
(D) Is an agent of the
provider.
(E) Is a managing
employee who is:
(i) a general
manager;
(ii) a business
manager;
(iii) an administrator;
or
(iv) a director;
who exercises operational or managerial control over the
provider or part thereof, or directly or indirectly conducts the day-to-day
operations of the provider or part thereof.
(2) "Conviction" means any of the
following:
(A) A judgment has been entered
against the individual or entity by a federal, state, or local court,
regardless of whether there is an appeal pending or whether the judgment of
conviction or other record relating to criminal conduct has been
expunged.
(B) A finding of guilt
against the individual or entity by a federal, state, or local court.
(C) A plea of guilty or nolo contendere by
the individual or entity has been accepted by a federal, state, or local
court.
(D) The individual or entity
has entered into participation in a first offender, deferred adjudication, or
other arrangement or program where judgment of conviction has been
withheld.
(3) "Failure
to grant immediate access" means the failure to grant access at the time of a
reasonable request. The office shall deem a provider's failure to appear at the
site requested to be a failure under this definition.
(4) "Indirect ownership interest" means an
ownership interest through any other entities that ultimately have an ownership
interest in the entity at issue.
(5) "Ownership interest" means an interest in
either:
(A) the capital, stock, or profits of
the entity; or
(B) any mortgage,
deed, trust or note, or other obligation secured in whole or in part by the
property or assets of the entity.
(6) "Reasonable request" means a written
request made by a properly identified agent of:
(A) a federal agency;
(B) a state survey agency;
(C) the office;
(D) IMFCU; or
(E) another authorized entity;
during hours that the facility is open for business within a
sufficient amount of time for the provider to comply.
(b) The office may
exclude a provider from participation in Medicaid for the time period provided
in subsection (c) for the following reasons:
(1) For any reason outlined in
42 CFR
1002.3.
(2) The provider has been convicted of a
misdemeanor in a federal or state court relating to:
(A) fraud;
(B) theft;
(C) embezzlement;
(D) breach of fiduciary responsibility;
or
(E) other financial misconduct;
in connection with the delivery of any health care program,
operated by, or financed in whole or in part by, any federal, state, or local
government agency.
(3) The provider has been convicted, under
federal or state law, in connection with the interference or obstruction of any
investigation into criminal conduct or a credible allegation of
fraud.
(4) A provider has been
convicted under state law for the unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance, as defined under IC
35-48-1-9.
(5) A provider has
either:
(A) had its license to provide health
care revoked or suspended by any state licensing authority, or has otherwise
lost such license, including the right to apply for or renew such license, for
reasons bearing on the provider's professional competence, professional
performance, or financial integrity; or
(B) surrendered the license while a formal
disciplinary proceeding concerning the provider's competence, professional
performance, or financial integrity was pending before a state licensing
authority.
(6) The
provider was suspended, excluded, or otherwise sanctioned under:
(A) any federal program involving the
provision of health care;
(B)
Medicaid; or
(C) any state health
care program;
for reasons bearing on the individual or entity's
professional performance, professional competence, or financial
integrity.
(7)
The office determines that a provider has either:
(A) knowingly submitted claims or requests
for payments under Medicaid containing charges or costs for items or services
that are greater than the provider's usual and customary charges or costs for
such items or services;
(B)
knowingly furnished to patients, whether or not covered by Medicare or
Medicaid, any items or services in excess of the patient's needs, or of a
quality that fails to meet professionally recognized standards of health
care;
(C) knowingly submitted false
claims, statements, or documents; or
(D) knowingly concealed material
facts.
(8) A provider
that has violated one (1) of the following:
(A)
42 U.S.C.
1320a-7a.
(B)
42 U.S.C.
1320a-7b.
(9) A provider who has a business
relationship with an individual who has a conviction for any of the following:
(A) Neglect or abuse of patients in
connection with the delivery of a health care item or service.
(B) A felony relating to fraud, theft,
embezzlement, breach of fiduciary responsibility, or other financial misconduct
relating to the delivery or provision of an item or service under
Medicaid.
(C) A felony relating to
the unlawful manufacture, distribution, prescription, or dispensing of a
controlled substance relating to the delivery or provision of an item or
service in connection with Medicaid.
(D) Other misconduct related to the delivery
or provision of an item or service under Medicaid.
(10) A provider who has a business
relationship with an individual who has had civil monetary penalties or
assessments imposed under 42
U.S.C. 1320a-7a.
(11) A provider who has a business
relationship with an individual who has been excluded from participation in
Medicare or any state health care programs.
(12) A provider who fails to fully,
accurately, or completely make the disclosures required under
42 CFR
455 Part B.
(13) A provider who furnishes items or
services for which payment may be made under Medicare or Medicaid and:
(A) fails to provide such information as is
necessary to determine whether such payments are or were due and the amounts
thereof; or
(B) has refused to
permit such examination and duplication of its records as may be necessary to
verify such information.
(14) Failure to grant immediate access, upon
reasonable request, to any of the following:
(A) The state survey agency, or other
authorized entity for the purpose of making any of the determinations provided
in 42 CFR
1001.1301(a)(1).
(B) ISDH for purposes of conducting reviews
and surveys of:
(i) ICFs/IID;
(ii) nursing facilities; or
(iii) providers of home and community care
and community care settings.
(C) The IMFCU for purposes of conducting its
activities.
(D) The office for
purposes of conducting any of the following:
(i) An audit.
(ii) Investigation.
(iii) A site visit pursuant to IC 12-15-1-22
and 42 CFR
455.432.
(iv) Any other action permitted by state or
federal law.
(c) The length of a provider's exclusion for
the Indiana Medicaid program for any reason specified under this rule shall be
three (3) years following the date of exclusion unless:
(1) federal or state law requires a longer or
shorter exclusionary period;
(2)
the provider has been permanently excluded from participating as a
provider;
(3) the provider enters
into an agreement to accept a longer period or permanent exclusion from
Medicaid;
(4) the office determines
that a mitigating factor outlined in subsection (d) justifies a lesser sanction
period;
(5) the provider's license
remains in a revoked or suspended status;
(6) the state licensing agency reinstates the
provider's revoked or suspended license before the end of the three (3) year
period;
(7) the circumstances
concerning the provider's refusal to grant immediate access under subsection
(b)(12) and its impact on Medicaid, beneficiaries, or the public warrant a
different exclusion period; or
(8)
the office determines that a longer or shorter exclusion period is more
appropriate under subsection (d).
(d) When permissible, the office, when
assessing an exclusion period other than three (3) years may consider the
following:
(1) Nature of the
offense.
(2) Sentence imposed by a
court.
(3) Provider's criminal
history.
(4) Provider's cooperation
federal or state officials in the investigation.
(5) Impact of the provider's misconduct on
the Indiana Medicaid program.
(6)
Provider's history of noncompliance with federal or state officials.
(7) Needs of the Indiana Medicaid
program.
(e) The
sanction period shall begin fifteen (15) days from the date the office mails
notice to the provider of the grounds for the exclusion.
(f) A provider excluded under this section
may reapply for enrollment in order to again participate in Medicaid. The
provider may not request to be reenrolled until after the exclusion period has
passed. The office may grant an application for reenrollment only if it is
reasonably certain that the types of actions that formed the basis for the
original exclusion have not recurred and will not recur. In making this
determination, the office shall consider the following:
(1) The conduct of the individual or entity
occurring prior to the date of the notice of exclusion, if not known to the
agency at the time of the exclusion.
(2) The conduct of the individual or entity
after the date of the notice of exclusion.
(3) Whether all fines, and all debts due and
owing, including overpayments to any federal, state, or local government that
relate to Medicaid or any of the state health care programs, have been paid, or
satisfactory arrangements have been made, that fulfill these obligations.
A provider reinstated under this section shall be considered
a high risk provider for purposes of
42 CFR
455.450 and IC
12-15-1-22.
(g) A provider may appeal the
office's determination to impose an exclusion or to deny its request for
reinstatement in accordance with the appeal procedures in section 11 of this
rule and IC 4-21.5.
