Current through Reg. 50, No. 13; March 28, 2025
(a) A felony or
misdemeanor conviction, as defined in
42 C.F.R. §
1001.2, under Texas law, the laws of another
state, or federal law, may affect a provider's and/or person's ability to
participate.
(b) The OIG may
recommend denial of an enrollment application of the applicant or a person
required to be disclosed in accordance with §
371.1005 of this subchapter
(relating to Disclosure Requirements) on the basis of information revealed
through a background check on the applicant, provider, or a person required to
be disclosed. A background check may include:
(1) information concerning the licensing
status of the health care professional;
(2) information contained in the criminal
history record information check performed in accordance with Texas Government
Code §
544.0153;
(3) a review of federal databases;
(4) the pendency of an open investigation by
the OIG; and
(5) any other reason
that the OIG determines appropriate.
(c) On a case-by-case basis, the OIG may
recommend approval of an enrollment application despite the existence of a
criminal history.
(1) When evaluating
criminal history record information, the OIG takes into consideration:
(A) the extent to which the conduct relates
to the services provided or to be provided under Medicaid;
(B) the degree to which the provider,
applicant, or person required to be disclosed does or will interact with
Medicaid recipients as a provider; and
(C) any previous evidence that the provider,
applicant, or person required to be disclosed engaged in fraud, waste, or abuse
under Medicaid.
(2) The
OIG also considers the following circumstances:
(A) the number of criminal convictions as
defined in 42 C.F.R. §
1001.2;
(B) the nature and seriousness of the
crime;
(C) whether the individual
or entity has completed the sentence, punishment, or other requirements that
were imposed for the crime and, if so, the length of time since
completion;
(D) in the case of an
individual, the age of the individual at the time the crime was
committed;
(E) whether the crime
was committed in connection with the individual's or entity's participation in
Medicaid or other HHS programs;
(F)
the extent of the individual's or entity's rehabilitation efforts and
outcome;
(G) the conduct of the
individual or entity, and the work history of the individual, both before and
after the crime;
(H) the
relationship of the crime to the individual or entity's fitness or capacity to
remain a provider or become a provider;
(I) whether approving the individual or
entity would offer the individual or entity the opportunity to engage in
further criminal activity;
(J) the
extent to which the individual or entity provides relevant information or
otherwise demonstrates that approval should be granted; and
(K) any other circumstances that HHSC
determines are relevant to the individual or entity's
eligibility.
(3) The
provider is responsible for providing to HHSC or to the OIG, within three
business days of an IG request, information related to the degree to which a
person could interact with Medicaid recipients as a provider.
(4) In all instances, the OIG takes into
consideration evidence of multiple or repeated instances of the same or similar
conduct.
(d) In addition
to the considerations outlined in subsection (c) of this section, the OIG
specifically takes into consideration the following conduct that may be
contained in criminal history record information of providers, applicants, or
persons required to be disclosed:
(1) for
provider types that have or may have direct access to recipients in their
capacity as a provider:
(A) conduct involving
healthcare fraud;
(B) conduct
involving abuse of patients, minors, the elderly, or the disabled;
(C) conduct involving prohibited sexual
conduct or involving children as victims;
(D) conduct against the person such as
homicide, kidnapping, or assault;
(E) conduct involving perjury or crimes of
other falsification, such as tampering with physical evidence or governmental
record;
(F) conduct involving
insurance fraud;
(G) conduct
involving illegal manufacture, use, possession or distribution of controlled
substances; and
(H) conduct
involving theft, including theft by check;
(2) for provider types that may transport
recipients and guardians in their capacity as a provider:
(A) conduct involving healthcare
fraud;
(B) conduct involving abuse
of patients, minors, the elderly, or the disabled;
(C) conduct involving prohibited sexual
conduct or involving children as victims;
(D) conduct against the person such as
homicide, kidnapping, or assault;
(E) conduct involving perjury or tampering
with a governmental record;
(F)
conduct involving intoxication and operating a motor vehicle, including driving
while intoxicated, intoxication assault, and intoxication
manslaughter;
(G) conduct involving
illegal manufacture, use, possession, or distribution of controlled
substances;
(H) conduct involving
criminal trespass;
(I) conduct
involving extortion; and
(J)
conduct involving promotion of prostitution or human
trafficking;
(3) for
provider types that may have interaction with or access to recipients,
recipients' homes, or recipients' property in their capacity as a provider:
(A) conduct involving healthcare
fraud;
(B) conduct involving abuse
of patients, minors, the elderly, or the disabled;
(C) conduct involving prohibited sexual
conduct or involving children as victims;
(D) conduct against the person such as
homicide, kidnapping, or assault;
(E) conduct against property such as theft,
burglary, property damage, or criminal trespass;
(F) conduct involving breach of fiduciary
duty;
(G) conduct involving illegal
manufacture, use, possession, or distribution of controlled substances;
and
(4) for provider
types that have no recipient interaction or access:
(A) conduct involving healthcare
fraud;
(B) conduct involving breach
of fiduciary duty or a deceptive business practice; and
(C) conduct involving theft, including theft
by check.
(e)
The OIG may recommend permanent denial of an enrollment application if:
(1) the applicant, provider, or a person
required to be disclosed has been convicted, as defined in
42 C.F.R. §
1001.2, of an offense arising from a
fraudulent act under Medicaid or other HHS programs; and
(2) that fraudulent act resulted in injury to
an elderly person, a person with a disability, or a person younger than 18
years of age.
(f) The OIG
may recommend denial of any enrollment application, regardless of provider
type, if it determines in its discretion that the applicant may pose an
increased risk for committing fraud, waste, or abuse or may demonstrate
unfitness to provide or bill for medical assistance items or services. In
addition to the applicant's criminal, regulatory, and administrative sanction
history, the OIG considers all applicable circumstances, including the
following, if applicable:
(1) the applicant,
a person required to be disclosed, or a person with an ownership or control
interest in the provider did not submit complete, timely, and accurate
information, failed to cooperate with any provider screening methods, or
refused to permit access for a site visit;
(2) the applicant or a person required to be
disclosed has failed to repay overpayments to Medicaid, CHIP, or other HHS
programs;
(3) the applicant,
provider, or a person required to be disclosed pursuant to §
371.1005 of this subchapter, has
been suspended or prohibited from participating, excluded, terminated, or
debarred from participating in any state Medicaid, CHIP or other HHS agency
program;
(4) the applicant,
provider, or a person required to be disclosed has participated in Medicaid or
CHIP program and failed to bill for medical assistance or refer clients for
medical assistance within the 12-month period prior to submission of the
enrollment application;
(5) the
applicant, provider, or a person required to be disclosed has falsified any
information on the enrollment application; and
(6) The OIG is unable to verify the identity
of the applicant, provider, or a person required to be
disclosed.
(g) Healthcare
professionals who are licensed and in good standing with a Texas licensing
authority that requires the submission of fingerprints for the purpose of
conducting a criminal history record information check are not subject to an
additional criminal history record information check by the OIG for the
purposes of determining eligibility to enroll, unless performing a criminal
history record information check is required or appropriate for other reasons,
including for conducting an investigation of fraud, waste, or abuse or where
required by 42 C.F.R. §
455.450.
