Current through Register Vol. 56, No. 18, September 16, 2024
(a) The provisions
of this section were adopted and issued pursuant to Executive Order No. 34,
dated March 29, 1976, and the authority vested in the Division of Medical
Assistance and Health Services to implement the New Jersey Medicaid and NJ
FamilyCare programs by rules and regulations set forth in
30:4D-5,
30:4D-17.1 a and c, Reorganization
Plan No. 001-1996 and
P.L.
1997, c. 272.
(b) Suspension, debarment, and
disqualification are measures which shall be invoked by the Division of Medical
Assistance and Health Services to exclude or render ineligible certain persons
from participation in contracts and subcontracts with the New Jersey Medicaid
or NJ FamilyCare program, or in projects or contracts performed with the
assistance of and subject to the approval of the Medicaid Agent or DMAHS, on
the basis of a lack of responsibility. These measures shall be used for the
purpose of protecting the interests of the New Jersey Medicaid and/or NJ
FamilyCare programs and not for punishment. To assure the New Jersey Medicaid
and/or NJ FamilyCare programs, the benefits to be derived from the full and
free competition between and among such persons and to maximize the opportunity
for honest competition and performance, these measures shall not be invoked for
any time longer than deemed necessary to protect the interests of the New
Jersey Medicaid and/or NJ FamilyCare programs.
1. Any individuals, including but not limited
to, owners, officers, administrators, assistant administrators, employees,
accountants, attorneys, and management services, who have been suspended,
debarred or disqualified from participation in the Medicaid and/or NJ
FamilyCare programs for any reason shall not be involved in any activity
relating to the New Jersey Medicaid and/or NJ FamilyCare programs.
2. Providers reimbursed on a cost-related
basis may not claim as allowable costs any amounts paid or credited to such
individuals, and such amounts shall not be reimbursed by the New Jersey
Medicaid and/or NJ FamilyCare programs.
3. Providers may not submit claims and shall
not be reimbursed for any goods supplied or services rendered by such
individuals.
4. The requirement in
(b)3 above shall apply only for the period during which such individuals are
suspended, debarred or disqualified from Medicaid and/or NJ FamilyCare
participation.
5. Claims shall not
be submitted and claims shall not be reimbursable for any item or service
(other than an emergency item or service, not including items or services
furnished in an emergency room of a hospital) furnished at the direction or on
the prescription of a physician, an individual or entity, during the period
when such individual, entity or physician is excluded from participation in the
Medicaid and NJ FamilyCare programs, and when the individual or entity
furnishing such item or service has received written notice from the Division
that the entity, individual or physician has been excluded from participation
in the Medicaid and NJ FamilyCare programs.
(c) The following words and terms, as used in
this section, shall have the following meanings:
"Affiliates" means persons having an overt or covert
relationship such that any one of them directly or indirectly controls or has
the power to control another.
"Debarment" means an exclusion from State contracting, on the
basis of a lack of responsibility evidenced by an offense, failure or
inadequacy of performance, for a reasonable period of time commensurate with
the seriousness of the offense, failure or inadequacy of performance.
"Disqualification" means a debarment or a suspension which
denies or revokes a qualification to bid or otherwise engage in State
contracting which has been granted or applied for pursuant to statute, rules or
regulations.
"Exclusion" means the suspension, debarment or
disqualification of any individual or entity from participation in any capacity
in any program administered in whole or in part by DMAHS.
"Person" means any natural person, company, firm,
association, corporation or other entity.
"State" means the State of New Jersey or any of the
departments or agencies in the executive branch of government with the lawful
authority to engage in contracting.
"State contracting" means any arrangement giving rise to an
obligation to supply anything to or perform any service for the State, other
than by virtue of State employment, or to supply anything to or perform any
service for a private person where the State provides substantial financial
assistance and retains the right to approve or disapprove the nature or quality
of the goods or service or the persons who may supply or perform the
same.
"Suspension" means an exclusion from State contracting for a
temporary period of time, pending the completion of an investigation or legal
proceedings.
(d) Any of the
following, among other things, shall constitute a good cause for exclusion of a
person by the Medicaid Agent or DMAHS:
1.
Commission of a criminal offense as an incident to obtaining or attempting to
obtain a public or private contract, or subcontract thereunder, or in the
performance of such contract or subcontract;
2. Violation of the Federal Organized Crime
Control Act of 1970, or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, perjury, false swearing, receiving
stolen property, obstruction of justice or any other offense indicating a lack
of business integrity or honesty;
3. Violation of the Federal or State
antitrust statutes, or of the anti-kickback provisions of the Social Security
Act at
42 U.S.C. §
1320 a-7b (b), subject to the exceptions set
forth in
42
C.F.R. 1001.952;
4. Violations of any of the laws governing
the conduct or elections of the State of New Jersey or of its political
subdivisions;
5. Violation of the
"Law Against Discrimination" (10:5-1 et seq.), or
of the "Act Banning Discrimination in Public Works Employment" (10:2-1 et seq.) or of the "Act
Prohibiting Discrimination by Industries Engaged in Defense Work in the
Employment of Persons Therein" (10:1-10 et
seq.);
6. Violations of any laws
governing hours of labor, minimum wage standards, prevailing wage standards,
discrimination in wages, or child labor;
7. Violations of any laws, regulations or
code of ethics governing the conduct of occupations or professions or regulated
industries;
8. Willful failure to
perform in accordance with contract specifications or within contractual time
limits;
9. A record of failure to
perform or of unsatisfactory performance in accordance with the terms of one or
more contracts, provided that such failure or unsatisfactory performance has
occurred within a reasonable time preceding the determination to debar and was
caused by acts within the control of the person debarred;
10. Violations of contractual or statutory
provisions regulating contingent fees;
11. Presentment for allowance or payment of
any false or fraudulent claim for services or merchandise;
12. Submitting false information for the
purpose of obtaining greater compensation than that to which the person is
legally entitled;
13. Submitting
false information for the purpose of obtaining authorization
requirements;
14. Failure to
disclose or make available to the Medicaid Agent or DMAHS or its authorized
agent, records of services provided to or payments made on behalf of Medicaid
or NJ FamilyCare beneficiaries;
15.
Failure to provide and maintain quality services to Medicaid or NJ FamilyCare
beneficiaries within accepted medical community standards as determined by a
body of peers;
16. Engaging in a
course of conduct or performing an act deemed improper or abusive of the New
Jersey Medicaid or NJ FamilyCare program following notification that said
conduct should cease;
17. Breach of
the terms of the Medicaid or NJ FamilyCare provider agreement entered into with
the Medicaid Agent or DMAHS for failure to comply with the terms of the
provider certification on the Medicaid or NJ FamilyCare claim;
18. Overutilizing the New Jersey Medicaid or
NJ FamilyCare program by inducing, furnishing or otherwise causing an
individual to receive service(s) or merchandise not otherwise required or
requested by the beneficiary;
19.
Rebating or accepting a fee or portion of a fee or charge for a Medicaid or NJ
FamilyCare beneficiary referral;
20. Violating any provision of
30:4D-1 et seq. (New Jersey
Medical Assistance and Health Services Act) as amended or supplemented, or any
rule or regulation promulgated by the Commissioner of Human Services or the
Commissioner of Health and Senior Services pursuant thereto;
21. Conviction of any crime involving moral
turpitude;
22. Submission of a
false or fraudulent application for provider status to the Program or to its
Fiscal Agent;
23. Any other cause
affecting responsibility as a State contractor of such serious and compelling
nature as may be determined by the Medicaid Agent or DMAHS to warrant
exclusion, including such conduct as may be proscribed by the laws or contracts
enumerated in this subsection, even if such conduct has not been or may not be
prosecuted as violations of such laws or contracts;
24. Suspension, debarment or disqualification
by some other department or agency in the executive branch;
25. Exclusion from participation in any
state-funded medical assistance and/or health services program of another
state;
26. Exclusion from
participation in the delivery of medical care or services under Title XVIII,
XIX, XX or XXI of the Federal Social Security Act by the Secretary of the
United States Department of Health and Human Services; or
27. Failure to comply with an administrative
subpoena issued by the Division.
(e) Conditions for debarment shall be as
follows:
1. Debarment shall be made only upon
approval of the Director of the Division, except as otherwise provided by
law.
2. The existence of any of the
causes set forth in (d) above, shall not necessarily require that a person be
debarred. In each instance, the decision to debar shall be made within the
discretion of the Director of the Division unless otherwise required by law,
and shall be rendered in the best interests of the Program.
3. All mitigating factors shall be considered
in determining the seriousness of the offense, failure or inadequacy of
performance and in deciding whether debarment is warranted.
4. The existence of a cause set forth in (d)1
through 7 above shall be established upon the rendering of a final judgment or
conviction by a court of competent jurisdiction or by an administrative agency
empowered to render such judgment. In the event an appeal taken from such
judgment or conviction results in reversal thereof, the debarment shall be
removed upon the request of the debarred person unless other cause for
debarment exists.
5. The existence
of a cause set forth in (d)8, 9, 10 and 23 above shall be established by
evidence which the Medicaid Agent or DMAHS determines to be clear and
convincing in nature.
6. The
existence of a cause set forth in (d)1 through 7, 11 through 22, and 24 above
shall be established by a preponderance of the believable evidence.
7. Debarment for the cause set forth in (d)24
above shall be proper, provided that one of the causes set forth in (d)1
through 23 above was the basis for debarment by the original debarring agency.
Such debarment may be based entirely on the record of facts obtained by the
original debarring agency, or upon a combination of such facts and additional
facts.
(f) If the
Medicaid Agent or DMAHS seeks to debar a person or his or her affiliates, the
Medicaid Agent or DMAHS shall furnish such party with a written notice stating
that debarment is being considered, setting forth the reasons for the proposed
debarment and indicating that such party will be afforded an opportunity for a
hearing if he or she so requests within a stated period of time. All such
hearings shall be conducted in accordance with the provisions of the
Administrative Procedure Act. However, where one department or agency has
imposed debarment upon a party, a second department or agency may also impose a
similar debarment without affording an opportunity for a hearing, provided that
the second agency furnishes notice of the proposed similar debarment to that
party and affords that party an opportunity to present information in his or
her behalf to explain why the proposed similar debarment should not be imposed
in whole or in part.
(g) Debarment
shall be a reasonable, definitely stated period of time which as a general rule
shall not exceed five years. Debarment for an additional period shall be
permitted provided that notice thereof is furnished and the party is accorded
an opportunity to present information in his or her behalf to explain why the
additional period of debarment should not be imposed.
(h) The scope of debarment rules shall be as
follows:
1. Except as otherwise provided by
law, a debarment may be removed or the period thereof may be reduced at the
discretion of the debarring agency upon the submission of a good faith
application under oath, supported by documentary evidence, setting forth
substantial and appropriate grounds for the granting of relief, such as newly
discovered material evidence, reversal of a conviction or judgment, actual
change of ownership, management or control, or the elimination of the causes
for which the debarment was imposed.
2. A debarment may include all known
affiliates of a person, 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. The offense, failure or inadequacy of performance of an
individual may be imputed to a person with whom he or she is affiliated, where
such conduct was accomplished within the course of his or her official duty or
was effected by him or her with the knowledge or approval of such
person.
3. Debarment by the
Director of any provider of service 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 Program or its
fiscal agent for any services or supplies he or she has provided under the New
Jersey Medicaid or NJ FamilyCare programs, except for services or supplies
provided prior to the debarment. No clinic, group, corporation or other
association which is a provider of services shall submit claims for payment to
the program or its fiscal agent for any services or supplies provided by a
person within such organization who has been debarred by the program, except
for services or supplies provided prior to the debarment.
4. When the provisions of this section are
violated by a provider of service which is a clinic, group, corporation or
other association, the Director may debar such organization and/or any
individual person within said organization who is responsible for such
violation.
(i) The
Medicaid Agent or DMAHS may suspend a person in the public interest for any
cause specified in (d) above, or upon a reasonable suspicion that such cause
exists, or when, in the opinion of the Medicaid Agent or DMAHS, such action is
necessary to protect the public welfare and the interests of the Medicaid or NJ
FamilyCare program.
(j) Conditions
for suspension shall be as follows:
1.
Suspension shall be imposed only upon approval of the Director of the Division
and upon approval of the Attorney General, except as otherwise provided by
law.
2. The existence of any cause
for suspension shall not require that a suspension be imposed, and a decision
to suspend shall be made at the discretion of the Director of the Division and
of the Attorney General, and shall be rendered in the best interests of the New
Jersey Medicaid and NJ FamilyCare programs.
3. Suspension shall not be based upon
unsupported accusation, but upon adequate evidence that cause exists or upon
evidence adequate to create a reasonable suspicion that cause exists.
4. In assessing whether adequate evidence
exists, consideration shall be given to the amount of credible evidence which
is available, to the existence or absence of corroboration as to important
allegations, and to inferences which may properly be drawn from the existence
or absence of affirmative facts.
5.
Reasonable suspicion of the existence of a cause described in (d) above may be
established by a judgment or order of an administrative agency, or court of
competent jurisdiction, or by a judgment of conviction, grand jury indictment,
accusation, arrest, or by evidence that such violations of civil or criminal
law did in fact occur.
6. A
suspension invoked by the Medicaid Agent or DMAHS for any of the causes
described in (d) above may be the basis for the imposition of a concurrent
suspension by another agency, which may impose such suspension without the
approval of the Attorney General.
(k) The Medicaid Agent or DMAHS may suspend a
person or his affiliates provided that within 10 days after the effective date
of the suspension, the Medicaid Agent or DMAHS provides such party with a
written notice stating that a suspension has been imposed and its effective
date, setting forth the reasons for the suspension to the extent that the
Attorney General determines that such reasons may be properly disclosed,
stating that the suspension is for a temporary period pending the completion of
an investigation and such legal proceedings as may ensue, and indicating that,
if such legal proceedings are not commenced or the suspension removed within 60
days of the date of such notice, the party shall be given either a statement of
the reasons for the suspension and an opportunity for a hearing, if he so
requests, or a statement declining to give such reasons and setting forth the
agency's position regarding the continuation of the suspension. Where a
suspension by the Medicaid Agent or DMAHS has been the basis for suspension by
another agency, the latter shall note that fact as a reason for its
suspension.
(l) A
suspension shall not continue beyond 18 months from its effective date unless
civil or criminal action regarding the alleged violation shall have been
initiated within that period, or unless debarment action has been commenced.
Whenever prosecution or debarment action has been initiated, the suspension may
continue until the legal proceedings are completed.
(m) Scope of suspension rules shall be as
follows:
1. A suspension may include all known
affiliates of a person, 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. The offense, failure or inadequacy of performance of an
individual may be imputed to a person with whom he or she is affiliated, where
such conduct was accomplished within the course of his official duty or was
effectuated by him or her with the knowledge or approval of such
person.
2. Suspension, by the
Medicaid Agent or DMAHS, of any provider of service 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
Program or its Fiscal Agent or DMAHS for any services or supplies he or she has
provided under the New Jersey Medicaid or NJ FamilyCare program, except for
services or supplies provided prior to the suspension. No clinic, group,
corporation or other association which is a provider of services shall submit
claims for payment to the Program or its Fiscal Agent for any services or
supplies provided by a person within such organization who has been suspended
by the Medicaid Agent or DMAHS, except for services or supplies provided prior
to the suspension.
3. When the
provisions of this section are violated by a provider of service which is a
clinic, group, corporation or other association, the Director may suspend such
organization and/or any individual person within said organization who is
responsible for such violation.
(n) Exclusion from State contracting by
virtue of debarment, suspension or disqualification shall extend to all State
contracting and subcontracting within the control or jurisdiction of the
Medicaid Agent or DMAHS. However, when it is determined essential to the public
interest by the Director of the Division, and upon filing of a finding thereof
with the Attorney General, an exception from total exclusion may be made with
respect to a particular State contract.
(o) Insofar as practicable,
prior notice shall be given to the Attorney General and the Treasurer of any
proposed debarment or suspension.
(p) The Medicaid Agent or DMAHS shall provide
the State Treasurer with the names of all persons suspended or debarred and the
effective date and term thereof, if any.
(q) This section shall be applicable to all
persons, providers, contractors, Fiscal Agent, and their affiliates who engage
in State contracting with the Medicaid Agent or DMAHS as defined in this
section.
