Current through Register Vol. 35, No. 18, September 24, 2024
HSD is allowed to impose monetary or non-monetary sanctions
against any provider or other entity for misconduct. HSD is required to impose
certain sanctions against a provider or other entity for fraud, HIPAA
violations, and other actions. Sanctions may be applied to any provider or
other entity receiving payment for services either directly through MAD or
through its managed care contractor, subcontractor, or other provider.
A.
Prior approval: As a
condition of payment, MAD or a HSD contracted MCO can require a provider to
obtain prior approval before delivering all or certain services including prior
to prescribing or ordering services. The prior approval request must be
submitted to the HSD's contracted MCO or the MAD UR contractor in a manner
prescribed for general utilization review. Failure to obtain prior approval
prior to furnishing a service may result in imposition of sanctions. In
addition, MAD may sanction a provider or other entity by requiring him or her
to obtain prior approval before furnishing all or certain services, including
prior to prescribing or ordering services, even if other providers may furnish
that service without the requirement of obtaining prior approval; see 8.302.5
NMAC.
B.
Education: As
a condition of payment, MAD or a HSD contracted MCO can require a provider or
other entity to attend an educational program if misconduct could be remedied
with the provision of identified education. MAD or a HSD contracted MCO may
also require a provider or other entity who is seeking reinstatement to attend
a specific educational program prior to the approval of his or her new PPA
application. Provider education programs may include, but are not limited to,
the following:
(1) claim form
completion;
(2) use and format of
the MAD NMAC rules;
(3) use of
procedure codes;
(4) substantive
provisions of MAD's NMAC rule, policy, and requirement;
(5) reimbursement rates;
(6) assistance in claims coding and billing;
and
(7) continuing medical or
behavioral health education.
C.
Closed-end agreements: MAD
can transfer the provider to a closed-end PPA. A closed-end PPA is for a
specified period of time which terminates on a defined date not to exceed 12
months. At the end of this term, a new PPA must be executed for continued MAD
participation.
D.
Suspension: "Suspension" is an exclusion from participation in MAD
or a HSD contracted MCO for a specified period of time.
(1) MAD suspension: MAD may suspend a
provider from MAD or a HSD contracted MCO participation for misconduct or
fraud.
(a) HSD is permitted to suspend a
provider for up to 36 months. The period of suspension is not less than the
term of any court-imposed suspension.
(b) If the suspension is imposed by MAD, the
effective date of the suspension is the date on the notice of suspension. If
the suspension is concurrent with a court-imposed suspension, the effective
date is the date of the court-imposed suspension.
(c) MAD is permitted to suspend a provider
when the provider's license is terminated, suspended, or moved to an inactive
status whether the action is voluntary on the part of the provider or is an
action of his or her practice or licensing board. When a provider is reinstated
by his or her practice or licensing board, the provider may reapply to MAD.
Approval of the provider's PPA will be based on the history, nature, and
financial magnitude of the provider's prior misconduct and not solely on the
basis of reinstatement of the provider's license.
(2) Medicare suspension: MAD must suspend a
provider or other entity that is suspended by medicare or any other federal or
state-funded health program. When a MAD suspension is concurrent with a
medicare suspension, the effective date of the MAD suspension is the same date
of the medicare suspension.
(3)
Special exception for health manpower shortage areas: After assessing the
nature of the violation or misconduct, MAD has the option of requesting action
from the secretary of the federal department of health and human services
(DHHS) if the suspension of a provider would result in the lack of adequate
medical or behavioral health services for MAP eligible recipients in a given
area. The secretary of DHHS can be asked to:
(a) designate the community as a health
manpower shortage area and place national health services corps personnel in
the community; or
(b) waive the
provider's suspension based upon submission of adequate documentation that the
suspension would deprive the provider's community of needed medical or
behavioral health services because of a shortage of practitioners in the
area.
(4) Submission of
claims following suspension:
(a) If a provider
is suspended from MAD or a HSD contracted MCO participation, the provider is
prohibited from submitting claims for payment to MAD, its MAD claims processing
contractor, or to a HSD contracted MCO.
(b) MAD or a HSD contracted MCO will not pay
claims submitted by clinics, groups, corporations, associations or other
entities associated with a provider who is suspended from MAD participation for
services furnished by such provider after the effective date of the
suspension.
(c) Claims for
services, treatment or supplies furnished by the provider before the effective
date of the suspension can be submitted. The claims may be subject to
pre-payment review.
(5)
Reinstatement: A provider can apply for reinstatement at the end of a
suspension period. Reinstatement is not automatic or guaranteed. A provider
must furnish written documentation that he or she meets all relevant licensing,
certification, or registration requirements as specified by MAD, HSD's
behavioral health services division (BHSD), the children, youth and families
department (CYFD), or the department of health (DOH).
E.
Termination: Termination is
the ending of the provider's MAD PPA for a specified period of time. MAD must
terminate the provider's PPA in certain specified instances and is permitted to
terminate the PPA in other instances.
(1)
Mandatory termination: MAD must terminate the PPA when any of the following
events occur:
(a) provider is convicted of MAP
or medicare fraud;
(b) provider has
a previous suspension from MAD with failure to correct identified deficiencies;
or
(c) provider is terminated from
participation in the medicare program or another federal or state-funded health
program.
(2)
Discretionary termination: MAD may terminate the provider's PPA when the
violation is so egregious, in the discretionary opinion of MAD, that other
sanctions are not sufficient to address, reduce or eliminate the violation or
when the identified deficiency or violation reflects a pattern of
violation.
(3) Effective date of
termination: The effective date of the MAD PPA termination is the date of a MAD
or a medicare fraud conviction or the date of the provider's medicare
termination. If termination follows a prior suspension from MAD or the
termination is discretionary, the date of termination is set by MAD.
(4) Termination of a nursing facility (NF) or
intermediate care facility's PPA:
(a) MAD or a
HSD contracted MCO can terminate a NF or an intermediate care facility for
individuals with intellectual disabilities (ICF-IID) PPA instead of or in
addition to other alternative remedies. Termination can occur in the instances
which include, but are not limited to, the following:
(i) immediate jeopardy to a NF or ICF-IID MAP
eligible recipient resident's health and safety which have not been
removed;
(ii) the provider is not
in substantial compliance with participation requirements regardless of whether
immediate jeopardy to a NF or ICF-IID MAP eligible recipient resident is
present;
(iii) the provider fails
to submit an acceptable plan of correction within the specified
timeframes;
(iv) provider fails to
relinquish control to temporary manager; or
(v) DOH recommends termination as the most
appropriate remedy.
(b)
Termination of the provider's PPA ends payment to the NF or ICF-IID
provider.
(c) Notwithstanding other
sections of this rule, payment to the NF or ICF-IID provider can be continued
for up to 30 calendar days after the effective date of his or her PPA
termination if the following conditions are met:
(i) the payment is for a NF or ICF-IID MAP
eligible recipient resident admitted to the NF or ICF-IID before the effective
date of the provider's PPA termination; and
(ii) MAD or a HSD contracted MCO is making
reasonable efforts to transfer a MAP eligible recipient resident to another MAD
enrolled facility or to alternate care;
(iii) for purposes of this provision, the 30
calendar day period begins on the effective date of the provider's PPA
termination by the centers for medicare and medicaid services (CMS), MAD, or by
the NF or ICF-IID provider.
(d) Before termination of a provider's NF or
ICF-IID PPA, MAD or a HSD contracted MCO must notify the provider and the
public at least 15 calendar days before the effective date of the termination
with non-immediate jeopardy deficiencies that constitute the noncompliance. For
termination due to deficiencies that pose immediate jeopardy to a MAP eligible
recipient resident, MAD or a HSD contracted MCO must notify the provider and
the public at least two working days before the effective date of the
termination.
(e) If the termination
of the provider's PPA is selected due to immediate jeopardy to a NF or ICF-IID
MAP eligible recipient resident, the effective date of the termination is
within 23 calendar days of the last date of its DOH survey.
(5) Submission of claims following
termination:
(a) If a provider is terminated
from MAD participation, the provider is prohibited from submitting claims for
payment to a HSD contracted MCO or to the MAD claims processing
contractor.
(b) MAD or an HSD
contracted MCO will not pay claims submitted by clinics, groups, corporations,
associations, or other entities associated with a provider who is terminated
from MAD participation for services furnished by such provider after the
effective date of the termination.
(c) Claims for services, treatment or
supplies furnished by the provider before the effective date of the termination
can be submitted. The claims may be subject to pre-payment review.
(6) Re-application for MAD
participation: A provider or other entity must submit a new PPA application
after the end of the termination period to MAD, before requesting enrollment in
one of HSD's contracted MCOs. A provider must meet certification and licensing
requirements specified by MAD, CYFD or DOH to be eligible to once again become
a provider.
F.
Civil monetary penalties: MAD is permitted to impose civil
monetary penalties in addition to other penalties, and in accordance with the
federal and state laws, regulations and rules.
(1) Amount of penalty: the provider or other
entity is liable for the following:
(a)
payment of interest on the amount received by the provider or other entity from
MAD or a HSD contracted MCO in excess of payment at the maximum legal rate in
effect on the date the payment was made, for the period from the date payment
was made to the date of repayment to HSD;
(b) a civil monetary penalty in an amount of
up to the maximum allowable under federal or state law, regulations or
rules;
(c) a civil monetary penalty
of $500 for each false or fraudulent claim submitted for furnishing treatment,
services, or goods; and
(d) payment
of legal fees and costs of investigation and enforcement of civil
remedies.
(2) Payment of
penalty amounts: Penalties and interest amounts must be remitted to the state
of New Mexico (the state). Any legal fees, costs of investigation and costs of
enforcement of civil remedies recovered on behalf of the state must also be
remitted to the state.
(3) Criminal
action: The filing of a criminal action is not a condition precedent to MAD's
imposition of civil monetary penalties.
G.
Reduction of payment: MAD may
reduce the amount of any payment due a provider or other entity, in addition to
other sanctions, if the provider or other entity seeks to collect an amount in
excess of the MAD or a HSD contracted MCO's allowable amount from a MAP
eligible recipient, his or her family, his or her authorized agent or any other
source. See
42 CFR Section
447.20 -
447.21.
(1) The reduction may be equal to up to three
times the amount that the provider sought to collect.
(2) For purposes of this provision, the MAD
allowable amount is equal to the amount payable under the state plan or MAD
NMAC rules, a MAD or a HSD contracted MCO fee schedule. The provider may not
charge a MAP eligible recipient for any effort or penalties such as researching
eligibility, not having cards, completing paper work or billing forms, missed
appointments, or any other add-on cost unless specifically allowed in a MAD
NMAC rule.
H.
Sanctions and remedies for noncompliance with nursing facility or
intermediate care facility certification requirements: MAD is required
to impose additional remedies against a NF provider who fails to comply with
federal medicaid and state MAD participation requirements with respect to his
or her licensing and certification. One or more of the following remedies can
be imposed by MAD for each deficiency constituting noncompliance or for all
deficiencies constituting noncompliance: termination of the NF provider's MAD
PPA and all provider contracts with the HSD contracted MCO; temporary
management; denial of payment for new admissions; civil money penalties; NF
closure or the transfer of MAP eligible recipient residents or both; state
monitoring; directed plan of correction; directed inservice training; and other
state remedies approved by CMS. MAD is also required to impose remedies against
an ICF-IID provider who fail to comply with federal medicaid and state MAD
licensing and certification requirements. MAD may terminate an ICF-IID
provider's certification or deny payment for new admissions if the provider
fails to meet the conditions for participation or certain deficiencies are
identified by DOH.
(1) Authority of survey
agency: DOH is the survey agency designated by MAD. When the rationale for
imposition of the remedies is tied to DOH's licensing and certification
responsibilities, criteria for imposition of remedies and description of these
specific remedies are based on NMAC rules promulgated by the DOH.
(2) Recommendations for imposition of
additional remedies: Following completion of a survey, DOH may recommend that
specified remedies be imposed against a NF or an ICF-IID provider for failure
to meet certification or licensing requirements which are based on the type,
extent and seriousness of an identified deficiency. MAD has five working days
from receipt of DOH's recommendations to impose remedies or to oppose the
recommendations. Unless a response from MAD is received in writing prior to the
expiration of the time period, the recommendations are accepted by MAD as
submitted and the recommended remedy is imposed.
(3) Informal reconsideration for an ICF-IID
provider: An ICF-IID provider can request an informal reconsideration of the
decision to deny, terminate or not renew his or her MAD PPA when the HSD
administrative hearing final decision will not be completed prior to the
effective date of the termination. The informal reconsideration must be
completed prior to the effective date of the termination. The informal
reconsideration includes the following:
(a)
written notice to the ICF-IID provider of the denial, termination or nonrenewal
of his or her MAD PPA;
(b)
reasonable opportunity for the ICF-IID provider to refute the findings upon
which the decision was based; and
(c) a written affirmation or reversal of the
denial, termination or nonrenewal of the provider's MAD PPA.
I.
Sanction for
violation of the Medicaid Provider Act: MAD may take any or any
combinations of the following delineated actions against a provider or other
entity for a violation of the Medicaid Provider Act.
(1) imposition of an administrative penalty
of not more than $5,000 for engaging in any practice that violates the act;
each separate occurrence of such practice constitutes a separate
offense;
(2) MAD issues an
administrative order requiring the provider or other entity to:
(a) cease or modify any specified conduct or
practices engaged in by the provider or other entity or his or her employees,
subcontractors, or agents;
(b)
fulfill its contractual obligations in the manner specified in the
order;
(c) provide any service that
has been denied;
(d) take steps to
provide or arrange for any service that it has agreed to or is otherwise
obligated to make available; or
(e)
enter into and abide by the terms of binding or nonbinding arbitration
proceeding, if agreed to by the opposing parties;
(3) suspend or terminate the provider's MAD
PPA and the provider contracts with a HSD contracted MCO.
