1.20-1 Grounds for Sanctioning and/or
Recouping MaineCare payments from Providers, Individuals or Entities
The Department may impose sanctions and/or recoup
identified overpayments against a provider, individual, or entity for any one
or more of the following reasons:
A.
Presenting or causing to be presented for payment any false or fraudulent claim
for services or merchandise;
B.
Submitting or causing to be submitted false information for the purpose of
obtaining greater compensation than that to which the provider is legally
entitled;
C. Submitting or causing
to be submitted false information for the purpose of meeting prior
authorization requirements;
D.
Failing to retain or disclose or make available to the Department or its
Authorized Entity contemporaneous records of services provided to MaineCare
members and related records of payments;
E. Failing to provide and maintain quality
services to MaineCare members within accepted principles and values of medical
professionalism and national standards of care;
F. Engaging in a course of conduct or
performing an act deemed improper, abuse of the MaineCare Program, or
continuing such conduct following notification that said conduct should cease;
Examples of such abusive acts include, but are not
limited to, the following:
1.
Furnishing services or supplies which are determined by the Department to be
substantially in excess of the needs of, or harmful to, individuals, or to be
of inferior quality, or not of usual or customary quality;
2. Soliciting or accepting from a member, his
or her family, friend or other representative an amount over and above the
reasonable charge amount or fee schedule for covered services
(supplementation);
3. Maintaining a
separate schedule of charges for MaineCare and non-MaineCare patients that
results in higher charges for MaineCare than for non-MaineCare
patients;
4. Billing based on
"gang" visits, (for example, a dental provider in a school setting, or a
physician visits a nursing home, walks through the facility, and bills for
individual nursing home visits, without rendering any specific service to
individual patients).
G.
Breaching the terms of the MaineCare Provider Agreement, and/or the
Requirements of Section 1.03-8 for provider participation;
H. Over utilizing MaineCare by inducing,
furnishing, or otherwise causing a member to receive service(s) or merchandise
not otherwise required or requested by the member;
I. Rebating or accepting a fee or portion of
a fee or charge for a MaineCare member referral (kickback);
J. Physician self-referrals determined to be
in violation of Title XVIII, § 1877 of the
Social Security
Act (
42 U.S.C. §
1395nn) , which prohibits certain physician
self-referrals for designated health services, and
42 C.F.R.
§§
1001.951 /952 and
42
C.F.R. §
411.353.
Designated health services include any of the following
items or services:
1. Clinical
laboratory services;
2. Physical
therapy services;
3. Occupational
therapy services;
4. Radiology
services, including MRIs, CAT scans, and ultrasound services;
5. Radiation therapy services and
supplies;
6. Durable medical
equipment and supplies;
7.
Parenteral and enteral nutrients, equipment, and supplies;
8. Prosthetics, orthotics, and prosthetic
devices and supplies;
9. Home
health services;
10. Outpatient
prescription drugs;
11. Inpatient
and outpatient hospital services; and
12. Speech-language pathology
services
K. Violating the
applicable provision of any law governing benefits governed by this Manual, or
any rule or regulation promulgated pursuant thereto;
L. Submission of a false or fraudulent
application for provider status;
M
Violation of any laws, regulations or code of ethics governing the conduct of
occupations or professions or regulated industries;
N. Conviction of a criminal offense relating
to performance of a Provider Agreement with the State, negligent practice
resulting in death or injury to patients, or misuse or misapplication of
program funds;
O. Failure to meet
standards required by state or federal law for participation (e.g. licensure or
certification requirements);
P.
Documented practice of charging members for services over and above the amount
paid by the Department and/or charging members for services prior to receipt of
MaineCare payments;
Q. Failure to
correct deficiencies in provider operations in accordance with an accepted plan
of correction after receiving written notice of these deficiencies from the
Department;
R. Formal reprimand or
censure by an association of the provider's peers for unethical
practices;
S. Suspension, exclusion
or termination from participation in another governmental medical program, such
as Medicare, Workers' Compensation, Children With Special Health Needs Program,
and Rehabilitation Services, for fraudulent or abusive practices;
T. Conviction for fraudulent billing
practices, negligent practice, or patient abuse;
U. Failure to repay or make arrangements to
repay overpayments or payments made in error;
V. Failure to return money paid by members to
a provider for covered services rendered during any period of MaineCare
eligibility, including failing to pay back members for services for which they
were charged when they have eligibility determined retroactively and there is
evidence of notification of retroactive eligibility for the member;
W. Unauthorized use of a primary care
provider's MaineCare Identification number as described in Section
1.03-8;
X. Breach of the terms of
legal and binding contract(s) with contractor(s) or subcontractor(s) who
provide their contractual services to MaineCare members; or Y. Failure to abide
by the provisions of 42 C.F.R. § 1000et seq., pertaining
to the exclusion of individuals and entities;
Z. For an organization or entity that is an
HMO or any entity furnishing services under a waiver approved under
42 U.S.C. §
1396n(b)(1), having a
substantial contractual relationship with an individual or entity that could be
excluded. A substantial contractual relationship is one in which the sanctioned
individual or entity has direct or indirect business transactions to more than
$25,000 or five percent (5%) of the organization or entity's total operating
expenses, whichever is less. Business transactions include but are not limited
to contracts, agreements, purchase orders or leases to obtain services,
supplies, equipment, space or salaried employment; and
AA. Conviction of a crime that occurred while
performing services as a health care worker or provider.
BB. Failure to provide information to the
Department or to otherwise respond to Departmental requests for information
within a reasonable timeframe established by the Department.
1.20-2
Sanction
Actions
The Department may impose the following sanctions against
providers, individuals or entities based on the grounds specified in Section
1.20-1, in accordance with applicable state and federal rules and
regulations.
A. Termination/Exclusion
from participation in MaineCare;
B.
Suspension of participation in MaineCare;
C. Limitation of services for which the
Provider is authorized to perform and receive payment;
D. Withholding or offset of future payments
toward recoupment of prior MaineCare reimbursements;
E. Transfer to a closed-end Provider
Agreement not to exceed twelve(12) months or the shortening of an already
existing closed-end Provider Agreement;
F. If the provider is a nursing facility or
an ICF-IID Intermediate Care Facility for Individuals with Intellectual
Disability (as defined in Chapter II, Section 67 or Section 50 of this Manual),
and if the grounds for this sanction are based on the provider's failure to
comply with
42 U.S.C. §
1396r, Subsections (b) Requirements Relating
to Provision of Services, (c) Requirements Relating to Residents' Rights,
and/or (d) Requirements Relating to Administration and Other Matters (refer to
Section 1.20-1(N) of this Manual), then the Department may sanction the
provider by denying payment for all MaineCare admissions which take place after
the date on which the Department gives notice to both the provider, and to the
public, that the provider is out of compliance with
42 U.S.C. §
1396(b), (c) and/or (d);
Notwithstanding the delineation of provider appeal
rights in Section 1.23-1(A) of this Manual, this sanction may be enforced
immediately if the noncompliance jeopardizes the health and safety of residents
or three (3) months after the facility is notified of the noncompliance if the
facility has not been brought into compliance within that three-month period.
Hence, under these particular circumstances, this sanction may be enforced
prior to and during the appeal process.
G. Forfeiture of any payment for services,
supplies or goods, associated with grounds for sanctioned providers;
H.
Imposition of a penalty due to
lack of adequate documentation. When the
Department
proves by a preponderance of the evidence that a provider has violated
MaineCare requirements because it lacks mandated records for MaineCare covered
goods or services, the Department in its discretion may impose the following
penalties:1. A penalty
equal to one hundred percent (100%) recoupment of MaineCare payments for
services or goods if the provider has failed to demonstrate by a preponderance
of the evidence that the disputed goods or services were medically necessary,
MaineCare covered services, and actually provided to eligible MaineCare
members.
2. A penalty equal to
twenty-five percent (25%) where the provider's records lack a required
signature from a member or the member's guardian.
3. A penalty equal to twenty-percent (20%)
recoupment if the provider is able to demonstrate by a preponderance of the
evidence that the disputed goods or services were medically necessary,
MaineCare covered services, and actually provided to eligible MaineCare
members. The penalty will be applied against each MaineCare payment associated
with the records at issue.
Following a request from a provider to impose a
recoupment of a lower percentage than twenty percent (20%), the Department may
consider the following factors as the basis for its decision:
a.
The nature and extent of the
identified violations;
b.
The impact or potential impact of the violation(s) on
members;
c.
The
impact or potential impact of the violation on administration of the MaineCare
program;
d.
The
financial impact of the violation on MaineCare;
e.
The provider's acceptance of
responsibility;
f.
Any history of prior violations;
g.
Any quality assurance, licensing,
or other notices of deficiency;
h.
Any other factor the Department
finds relevant to its consideration.
I.
Plan of Corrective Action
(POCA)
Require the provider to submit a plan of
correction to the Department for review and approval. Failure to provide a plan
of correction satisfactory to the Department within the time specified may
result in the Department choosing to impose different and/or additional
sanction(s) on the provider. The plan of correction must be a specific plan
which describes how the provider will correct or address the identified
deficiency (event, incident, or risk), including the actions the provider will
undertake to bring about correction. The plan of correction must:
1. Address correction of the specific
deficiencies cited;
2. Address all
identified areas where the correction of all related deficient circumstances
will be implemented;
3. Identify
specific actions/steps the provider will complete to prevent the identified
deficiency from recurring. The specific events cited may not represent all
instances within the site/services where the practice is deficient;
4. Specify the date or frequency when each
element of the plan will occur. Terms such as "frequently," "periodically," "as
needed," and "ongoing" lack the necessary specificity;
5. Identify, by title and name, the
individual(s) responsible for implementing and monitoring the plan;
6. Provide dates by which all components of
the plan will be implemented and when the corrections will be completed. The
length of time to correct the deficiency must be as soon as possible;
and
7. Not duplicate or closely
parallel a previously submitted and failed plan of correction Providers may
satisfy the plan of correction requirement by sharing a copy of a plan of
correction approved by another Office or Division within the Department for the
identical violation(s) for which OMS sought the plan of
correction.
J.
Impose a suspension of referrals to a provider;
K.
Deny or pend any enrollment
applications submitted by a provider;
L.Limit the number of service
locations a provider may enroll; and
M.
Limit the number of MaineCare
members the provider may serve.
1.20-3
Rules Governing the Imposition
and Extent of Sanction
A.
Imposition of Sanction
The decision to impose a sanction shall be the
responsibility of the Commissioner of DHHS, who may delegate sanction
responsibilities to a designee.
1. The
following factors may be considered in determining the sanction(s) to be
imposed:
a. Nature and seriousness of the
offense(s);
b. Extent of
violation(s);
c. History of prior
violation(s);
d. Prior imposition
of sanction(s);
e. Prior provision
of provider education;
f. Whether a
lesser sanction will be sufficient to remedy the problem; and
g. Actions taken or recommended by peer
review groups, other payers, or licensing boards, if applicable.
2. Where a provider, individual or
entity, has been convicted of defrauding the MaineCare Program, or has been
previously suspended due to MaineCare Program abuse, or has been terminated
from the Medicare Program for abuse, the Department shall institute proceedings
to terminate participation of the provider, individual or entity, from the
MaineCare Program.
3. Nursing
facilities that fail to comply with state licensing regulations may be subject
to the imposition of sanctions and/or federal penalties as described in Chapter
22, (Enforcement), of the Department's policy titled: Regulations Governing the
Licensing and Functioning of Skilled Nursing Facilities and Nursing
Facilities.
B.
Scope of Sanction
1. A sanction
may be applied to a provider, individual, or entity, or to all known affiliates
of a provider, provided that each decision to include an affiliate is made on a
case-by-case basis after giving due regard to all relevant facts and
circumstances.
2. Suspension or
termination from participation of any provider, individual or entity shall
preclude such provider from submitting claims for payment, either personally or
through claims submitted by any clinic, group, corporation or other association
to the Department or its Authorized Entity for any services or supplies
provided under MaineCare except for those services or supplies provided prior
to the suspension or termination.
3. No clinic, group, corporation or other
association which is a provider of services shall submit claims for payment to
the Department or its Authorized Entities for any services or supplies provided
by a person within such organization who has been suspended or terminated from
participation in MaineCare except for those services or supplies provided prior
to the suspension or termination.
4. When a provider of services that is a
clinic, group, corporation or other association are in violation of the
provisions of Section 1.20-3(B)(3), the Department may suspend or terminate
such organization and/or any individual within said organization that is
responsible for such violation, and administer other sanctions.
C.
Notice of Sanction
1. When a provider, individual or entity, has
been sanctioned and/or a recoupment has been imposed, the Department shall
notify, if appropriate, the applicable professional society, Board of
Registration or Licensure, his or her employer, and federal or state agencies
of the findings made and the sanctions imposed.
2. Once a provider, individual or entity's
participation in MaineCare has been suspended or terminated, the provider must
notify all affected MaineCare members within thirty (30) days that the
provider, individual or entity, has been suspended or terminated and must
arrange orderly transfer of records to other providers as applicable.
1.20-5
Notice of
Violation/Recoupment
If the Department has information that indicates that a
provider may have submitted bills and/or has been practicing in a manner
inconsistent with the program requirements, and/or may have received payment
for which he or she may not be properly entitled, the Department shall notify
the provider of the discrepancies noted. The written notification shall be sent
to the provider allowing at least sixty (60) calendar days from the date of the
notice before the effective date of any further action or imposition of
sanction pursuant to state and federal laws, unless the life and/or safety of
the member is felt to be endangered which would be cause for immediate
sanction, and shall set forth:
A. The
nature of the discrepancies or violations;
B. The dollar value of such discrepancies or
violations;
C. The method of
computing such dollar value may be from:
1.
Extrapolation from a systematic random sampling of records,
2. A calculation from a selective sample of
records, or 3. A total review of all records.
D. Any further actions to be taken or
sanctions to be imposed by the Department; and
E. Any actions required of the provider, and
the right to request an informal review and administrative hearing, as set
forth in Section
1.23. An adverse
decision may be appealed pursuant to the procedures outlined in Section
1.23 of this Chapter. A
request for review or proceedings there under, does not stay the sanction
imposed by the Department.
1.20-6
Suspension or Withholding of
Payments Pending a Final Determination
The Department may impose a sanction or withhold payment
when the Department has obtained an order from Superior Court allowing interim
sanctions upon showing a substantial likelihood that overpayment or fraud has
occurred and that substantial harm to the Department will result from further
delay or when the Department has taken final agency action and the provider has
waived or exhausted its right to judicial review.
No court order is required when the Department suspends
payments in accord with subsection 1.22-3.
The Department may terminate or suspend the
participation of a provider in MaineCare pursuant to federal and state rules
and regulations.
1.20-7
Procedures Following a Suspension
Except as otherwise directed by the Department, the
Provider under suspension shall:
1.
Not accept new members for services unless otherwise specifically requested in
writing on an individual case basis by the Department.
2. Furnish the Department with access to all
information pertaining to each individual member presently being cared for by
the Provider in such detail as deemed necessary by the Department.
