Current through March 20, 2024
This section establishes policy and procedure for reporting
suspected fraud and abuse cases and intentional program violations to the
Special Investigation Unit for follow-up which includes investigation and
possible prosecution.
Fraud is defined by Section
68-1017,
Reissue Revised Statutes of Nebraska, 1943. Federal
regulations regarding fraud and abuse are
45 CFR
235.110 and 42 CFR Part 455. Intentional
program violations are addressed in
7 CFR
273.16.
007.01
Definitions:
The following definitions apply to fraud and abuse and
intentional program violations:
Abuse (Medicaid): Provider
practices that are inconsistent with sound fiscal, business, or medical
practices and result in an unnecessary cost to the Nebraska Medical Assistance
Program (NMAP) or in reimbursement for services that are not medically
necessary or that fail to meet professionally recognized standards for health
care. Abuse also includes recipient practices that result in unnecessary cost
to NMAP.
Complainant: Any individual,
including a Department employee, who initiates a referral for investigation of
a suspected fraud case using Form ASD-63, "Referral for Investigation," or any
other method.
Fraud: As defined by state law,
fraud includes, but is not limited to, the willful false statement or
representation, or impersonation or other device, made by a recipient or
applicant, provider, Departmental employee, or any other person, for the
purpose of obtaining or attempting to obtain, or aiding or abetting any person
to obtain -
1. Any commodity, food
stuff, food coupons, or payment to which the individual is not
entitled;
2. A larger amount of
payment than that to which the individual is entitled;
3. Any other benefit administered by the
Nebraska Department of Social Services to which the individual is not entitled;
or
4. Assistance in violation of
any statutory provision relating to programs administered by the Nebraska
Department of Social Services.
As defined by federal Medicaid regulation, fraud is an
intentional deception or misrepresentation made by a person with the knowledge
that the deception could result in some unauthorized benefit to himself/herself
or some other person. It includes any act that constitutes fraud under
applicable federal or state law.
Intentional Program Violation (Food Stamp
Program): Intentional program violation consists of any action by
an individual to purposely:
1. Make a
false statement, either verbally or in writing, or conceal information to
obtain benefits to which the household is not entitled;
2. Use or receive food stamp benefits in a
transaction involving the sale of a controlled substance;
3. Use or receive food stamp benefits in a
transaction involving the sale of firearms, ammunition, or
explosives;
4. Traffic food stamp
benefits for an aggregate amount of $500 or more;
5. Commit and be convicted of a drug-related
felony with the following exceptions:
a.
Remain eligible after first conviction when participating in or have completed
a national-licensed or state-approved substance abuse treatment
program;
b. Remain eligible after
second conviction when participating in or have completed a national-licensed
or state-approved substance abuse treatment program after the
conviction;
6. Fleeing to
avoid prosecution or custody for a crime or an attempt to commit a crime that
would be classified as a felony or violating a condition of probation or
parole; or
7. Make a fraudulent
statement or representation with respect to his/her identity or place of
residence to receive multiple food stamp benefits simultaneously.
Special Investigation Unit (SIU): A
unit within the Division of Enforcement Services whose purpose is to
investigate and prepare for prosecution all cases of fraud, except Medicaid
provider fraud.
Surveillance and Utilization Review Unit
(SURS): A unit within the Medicaid Division of Health and Human
Services, Finance and Support, responsible for investigation and appropriate
disposition of all cases of Medicaid provider fraud and program
abuse.
007.02
Policies:
Staff of the Nebraska Department of Health and Human
Services must report suspected fraud and abuse or intentional program violation
by completing Form-ASD-63 and submitting the completed form to the Special
Investigation Unit or the Surveillance and Utilization Unit, as
appropriate.
Staff outside the Lincoln telephone exchange may call
Medicaid Inquiry at (877) 255-3092 to obtain assistance when reviewing Medicaid
services which are being considered for submittal as suspected fraud and abuse
cases. Staff within the Lincoln telephone exchange may call 471-9128 and ask
for Medicaid Inquiry. Medicaid Inquiry refers policy questions to the
appropriate health care representative or program and planning
specialist.
Each Department office must designate a position to
coordinate referrals to the State Investigation Unit.
All referrals are considered confidential and must be
safeguarded as described in 465 NAC 2005.
Methods used for investigation of referrals must not infringe
on the legal rights of the persons involved and must afford due process of
law.
007.03
Procedure for Reporting Suspected Fraud and Abuse or Intentional
Program Violations:
Suspected fraud and abuse or intentional program violations
are reported and investigated as follows:
1. Departmental staff must complete Form
ASD-63, "Referral for Investigation," and must submit the completed form in a
sealed envelope marked "confidential" to the Special Investigation Unit
(referral for investigations initiated within the Omaha Office will be
submitted to the Omaha Special Investigation Unit). Departmental staff retain
one copy of Form ASD-63. Persons not employed by the Department may report
suspected fraud and abuse or intentional program violation to the SIU by
letter, phone call, or any other means;
2. When a report of suspected fraud and abuse
or intentional program violation is received, the Special Investigation Unit
shall conduct a preliminary investigation to determine if there is sufficient
merit to warrant a full investigation;
3. Once a report has been referred to the
SIU, the Department shall take no further action with regard to the suspected
fraud and abuse or intentional program violation except in accordance with
instructions or approval by the Special Investigation Unit. This does not
preclude normal case action or recoupment of any overpayment through grant
reduction or issuance reduction. Normal case actions include closing a case
that is found to be ineligible and recovering overpayments;
4. If the results of the preliminary
investigation show sufficient merit to conduct a full investigation, the SIU
shall conduct a full investigation of the suspected fraud and abuse or
intentional program violation;
5.
If the results of the preliminary investigation do not show sufficient merit to
conduct a full investigation, the SIU shall inform the appropriate staff in
writing. The case may be referred to a program division for administrative
action; and
6. The SIU shall inform
the appropriate administrator from whose office the complaint originated of the
status of each case referred.
007.04
Penalties:
Individuals who make false claims, statements, or documents,
or conceal material facts may be prosecuted under applicable state and federal
laws.
An individual convicted under Section
68-1017,
R.R.S., 1943, may incur imprisonment for not more than
five years, or a fine of not more than $10,000, or both. An individual
convicted under Federal law, 42 United States Code
1396h, also known as the Medicare-Medicaid Anti-Fraud and Abuse Amendments, may
incur imprisonment for not more than five years, or a fine of not more than
$25,000, or both.
An individual convicted of intentional program violation in
the Food Stamp Program may be disqualified from the Food Stamp Program as
required by
7 CFR
273.16 for 6 months for the first violation,
12 months for the second violation, and permanently for the third violation.
Only the individual found to have committed the intentional program violation,
not the entire household, is disqualified. Any remaining household members may
be certified for the Food Stamp Program if otherwise eligible. The individual
shall also repay the fraudulent claim, either by cash payments or by a
reduction in the monthly food stamp allotment. If repayment is not made, the
individual is disqualified from the Food Stamp Program until the payments begin
(see 475 NAC 1-008).
007.05
Records and Reports:
The Special Investigation Unit shall maintain records and
prepare reports as required by federal regulation.
The Special Investigation Unit shall maintain records of all
investigations.
007.06
Disqualification Hearings for Intentional Program Violations (IPV)
for ADC and Child Care Subsidy:
2-007.06A
Initiating the
Disqualification Hearing:
2-007.06A1
Reporting
Requirements: The worker must report cases of suspected IPV to the
Special Investigations Unit (SIU), Central Office.
2-007.06A1a
Central Office
Guidelines: The Central Office uses the following guidelines in
determining the need for a disqualification hearing:
1. A disqualification hearing must be
initiated regardless of the current eligibility status of the
individual;
2. The burden of
proving IPV is on the Department;
3. The Central Office will not initiate a
disqualification hearing against an accused individual whose case is currently
being referred for prosecution or after any action taken against the accused
individual by a court, if the factual issues of the case arise out of the same,
or related, circumstances.
2-007.06B
Disqualification
Hearing Procedures: The Nebraska Department of Health and Human
Services Director must designate either an employee of the state agency or an
individual under contract to the Department to conduct disqualification
hearings.
2-007.06B1
Timeliness
Standards: The following timeliness standards must be followed in
the disqualification hearing process:
1. The
individual suspected of IPV must be given at least 30 days' written advance
notice of the hearing unless the household requests a waiver of the advance
notice in situations when the disqualification and fair hearings are combined
(see 465 NAC
2-007.06B
2).
2. The Central Office has 90
days from the date the accused individual is notified of the hearing to:
a. Conduct the hearing;
b. Arrive at a decision; and
c. Initiate administrative action to make the
decision effective.
3. If
the hearing is postponed (see 465 NAC
2-007.06B 2), the
time limits of item 2 are extended for as many days as the hearing is
postponed.
2-007.06B2
Scheduling of Hearings: The time and place of the
hearing must be arranged so that the hearing is accessible to the individual
suspected of IPV. The following guidelines must be observed in scheduling
disqualification hearings:
1. The individual
or representative is entitled to one postponement of a maximum of 30 days of
the scheduled hearing if the request for postponement is made at least ten days
before the scheduled hearing.
2. If
the individual or his/her representative cannot be located or fails to appear
at a hearing without good cause, the hearing will be conducted without
representation for the individual. Even though the individual is not
represented, the Nebraska Department of Health and Human Services Director will
carefully consider the evidence and determine if IPV was committed based on
clear and convincing evidence.
3.
If the individual is found to have committed IPV, but it is later determined by
the Director that the individual had good cause for not appearing, the previous
decision is no longer valid and the Central Office will conduct a new
hearing.
4. The individual has ten
days from the date of the scheduled hearing to present reasons indicating a
good cause for failure to appear. The Director must enter the good cause
decision into the record.
2-007.06B3
Consolidated
Hearings: A disqualification hearing may be combined with a fair
hearing when:
1. The factual issues of both
hearings arise out of the same (or related) circumstances; and
2. The individual is notified in advance that
the hearings will be combined in a single hearing.
If a disqualification hearing and a fair hearing are
combined, the Central Office must follow the timeliness standards for
disqualification hearings (see 465 NAC
2-007.06B
1).
If the hearings are combined for the purpose of settling the
overpayment amount and determining if IPV has occurred, the household loses its
right to a later fair hearing on the claim amount. However, upon the
household's request, the local office must allow the household to waive the
30-day advance period required by 465 NAC
2-007.06B 2 when
the disqualification hearing and fair hearing are combined.
2-007.06C
Advance Notice of Hearing: The Central Office must
send an Advance Notice of Disqualification Hearing to the individual suspected
of IPV at least 30 days in advance of the date of the disqualification
hearing.
2-007.06D
Waived Hearing: If the individual wishes to waive a
hearing, the Central Office will send a waiver of hearing consent form to the
household.
If the waiver form is returned by the deadline specified on
the waiver form, the household must be disqualified according to
disqualification penalties listed at 468 NAC
3-005.05C for ADC
or 392 NAC
3-012.02D for
Child Care Subsidy.
The Advance Notice of Disqualification Hearing contains
information advising the household of its right to waive a disqualification
hearing.
2-007.06E
Participation While Awaiting a Hearing: A pending
disqualification hearing does not affect the right of the individual or the
household to continue to receive assistance. The local office must determine
the eligibility in the same manner it would be determined for any other
household, until there is a determination that the individual has committed
IPV.
If the pending disqualification action does not affect the
individual's current circumstances, the individual would continue to receive
assistance based on the latest program action or be redetermined based on a new
application and the current circumstances.
The worker must also reduce or terminate the household's
benefits if there is documentation which substantiates ineligibility or
eligibility for reduced benefits and the household fails to request a fair
hearing and continuation of benefits pending the hearing. These actions occur
even if the documented facts led to the suspicion of IPV and the resulting
disqualification hearing.
2-007.06F
The Hearing
Official
2-007.06F1
Duties of the Hearing Official: The hearing official must ensure
that:
1. All relevant issues are
considered;
2. All persons who
testify at the hearing present their evidence as completely and accurately as
possible; and
3. The hearing record
contains enough evidence to enable the Director to make a decision.
2-007.06F2
Powers of
the Hearing Official: The hearing official has the power to:
1. Administer oaths;
2. Ask for additional witnesses and question
witnesses;
3. Ask that additional
documents be brought in;
4. Dismiss
witnesses from the room for good and sufficient reason;
5. Recess, continue, or close the hearing at
any time there is good and sufficient reason for so doing; and
6. Regulate the conduct and course of the
hearing in accordance with due process and keep the hearing orderly and to the
point by excluding and discouraging evidence which is not relevant.
2-007.06F3
Hearing
Decision Authority: The power to make the final disqualification
hearing decision is vested in the Director.
2-007.06G
Conduct of the
Hearing: Disqualification hearings are conducted by the hearing
official as informal hearings, but witnesses must be placed under oath.
2-007.06G1
Attendance at the
Hearing: The hearing is attended by a representative of the
Department. The suspected household member and/or his/her representative are
encouraged to attend, but their presence is not required.
The hearing is not open to the public, but friends or
relatives of the household may attend if the household so chooses. However, the
hearing official has the authority to limit the number of persons in attendance
at the hearing if space is limited or if persons in attendance must be limited
to ensure an orderly hearing.
2-007.06G2
Recording the
Hearing: Disqualification hearings are recorded by either
mechanical equipment and/or a stenographer.
2-007.06G3
Order of the
Hearing: The hearing will begin with introductions by the hearing
official. At this time the hearing official must advise the suspected household
member or his/her representative that s/he may refuse to answer questions
during the hearing. The Department's representative will present the state's
case first. The household member or the representative will then present
his/her case.
2-007.06H
Recessing the Hearing: The hearing official may order
a recess if s/he considers it necessary to request, receive, or obtain
additional testimony or evidence in order for the Director to decide the issues
being raised. The hearing official must advise the household member or his/her
representative of the reason for the recess and the nature of the additional
information that is required. The hearing must be reconvened when the witness,
document, or other evidence is available so that the household member will have
an opportunity to question or refute any testimony or other evidence received.
When reconvened, the hearing is conducted as any other disqualification
hearing.
2-007.06J
Admission of Evidence After Hearing Is Closed:
Evidence may be submitted after a hearing is closed. However, copies of any new
evidence must be sent to interested parties, together with an explanation of
the right to explain or refute new evidence.
007.07
Hearing
Decision:
2-007.07A
Criteria for Determining Intentional Program
Violation: The Director must base the determination of IPV on
clear and convincing evidence which demonstrates that the individual knowingly,
willfully and with deceitful intent committed IPV.
2-007.07B
Decision
Format: On the basis of the evidence presented, the Director must
enter a final decision which:
1. Specifies
the reasons for the decision;
2.
Identifies the supporting evidence;
3. Identifies the pertinent program
regulation; and
4. Responds to
reasoned arguments made by the individual or representative.
2-007.07C
IPV
Sanctions: For sanctions following a decision of IPV, see 468 NAC
3-005.05C for ADC
and 392 NAC
3-012.02D for
Child Care Subsidy.
007.08
Appeal Rights of the
Household:
No further administrative appeal procedure exists after a
hearing decision is made which is adverse to the individual. A determination of
IPV cannot be reversed by a subsequent fair hearing decision on the same level.
However, the household member is entitled to seek relief in a court having
appropriate jurisdiction under Neb. Rev. Stat. Section
84-917.
The period of disqualification may be subject to stay or other injunctive
remedy.
