Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,991
7533-7814 p. ; 28 cm.View a full description of this periodical.
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Government Code 2001.039 requires that each state agency
review and consider for re-adoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (the
Administrative Procedure Act). HHSC has reviewed all sections
in Chapter 371, Subchapter G and has determined that, although
the reasons for adopting rules governing Medicaid program in-
tegrity continue to exist, some of the rules in Chapter 371, Sub-
chapter G are obsolete or unnecessary and others need updat-
ing. As a result of this review, HHSC is adopting these repeals
and new sections.
Comments
HHSC received written comments from Clinical Pathology Lab-
oratories (CPL), Medco Medical Supply (Medco), Texas Den-
tal Association (TDA), and Texas Medical Association (TMA). A
summary of the comments and the responses follow.
Comment: Medco suggested that during the inspection process,
providers be graded as to risk. The risk assessment would then
determine the next time for an on-site review. If an initial site
visit reveals no deficiencies, then ensuing site reviews should
only occur if there is a change in the provider's billing patterns,
change of ownership events, business relocation, or other trig-
gering event.
Response: To the extent this comment relates to proposed
371.1651(7), the Affordable Care Act requires the state to
perform continuing follow-up site visits but does not identify
specific parameters for conducting them. These site visits will
be performed on all provider types that are required to enroll
through the consolidated enrollment and screening process, so
specific criteria for risk assessments will differ. Such decisions,
if any, may be made in consultation with program staff, given the
nature and extant circumstances. To the extent this comment
refers to proposed 371.1667(3)(D) or 371.1703, those site
visits would typically occur during an investigation into specific
allegations of wrongdoing against that provider. As such, these
would not be routine site visits and would not lend themselves to
predetermined thresholds. No changes are made in response
to this comment.
Comment: TMA states that the proposed language in
371.1603(f) deletes the language "not all actions resulting in
overpayment to a provider are necessarily fraudulent" which is
in the current section being proposed for repeal. TMA asks that
the language be reinstated to reiterate that not all actions or
overpayments are fraud.
Response: The definitions provided in these rules clearly define
the types of violations that may occur, and the rules outline the
violations that may or may not include fraud. OIG is aware that
various factors can contribute to overpayments and that it may
or may not constitute fraud, and does not feel reiteration is nec-
essary. No changes are made in response to this comment.
Comment: TMA states that the proposed rules do not clearly de-
fine a reasonable standard and process for "verifying" a credible
allegation of fraud prior to initiating a payment hold, and they un-
reasonably and unnecessarily expand the discretion of the OIG
to initiate a payment hold.
Response: Verifying a credible allegation of fraud is done on a
case-by-case basis and is fact-driven. It is not possible to predict
what specific factors or which process will determine whether
an allegation of fraud is credible. Again, this rule refers only to
the investigative process. The OIG conducts an integrity review
pursuant to its enabling legislation and conducts its processes asrequired by law. After an investigation is completed, all providers
have the right to request an informal review, in which settlement
discussions occur and a contested case hearing in which an ALJ
will render an impartial opinion on the sufficiency of the OIG's
verification process. No changes are made in response to this
comment.
Comment: TMA states that the proposed rules define "affiliate"
extremely broadly to allow payment holds and other sanctions
and penalties to be imposed on a person based solely on the
actions of another. CPL expressed concern that a penalty can
be imposed due to entity's conduct that is not controlled by a
provider.
Response: Current rule 1 TAC 371.1603(e) authorizes OIG to
impose administrative actions and sanctions against providers or
their principals or affiliates. Accordingly, the proposed rule does
not expand OIG's current and longstanding authority to take ad-
ministrative action(s) against providers, persons, or their affili-
ates. The concept of liability for an affiliate is set out in 42 CFR
455.1001, 455.416. Similarly, section 6502 of the Affordable
Care Act requires the state to exclude the affiliates of excluded
providers.
OIG routinely takes some actions against persons who are not
providers. For example, persons who have been convicted of
certain criminal offenses or lost their professional licensure are
excluded from eligibility to enroll or participate in the Medicaid
program. Thus, there is a public policy need for this provision as
written.
Moreover, this provision could inure to the benefit of providers
who do not wish to be held liable for the acts or omissions of their
affiliates. If OIG can take separate enforcement action against
the responsible person, it may not need to look to the enrolled
provider for restitution. No changes are made in response to this
comment.
Comment: TMA states that proposed 371.1709(b)(3) autho-
rizes the OIG to impose a payment hold upon "receipt of reliable
evidence that verifies a credible allegation of fraud," when the
OIG is only authorized to suspend a Medicaid payment after it
verifies there is a credible allegation of fraud for which an inves-
tigation is pending at MFCU.
Response: Existing rules already support the imposition of a
payment hold on the basis of any program violation. See 1 TAC
371.1703(b)(5). The state enabling statute requires OIG to im-
pose a payment suspension "upon receipt of reliable evidence
that the circumstances involve fraud or willful misrepresenta-
tion." Texas Government Code 531.102(g)(2). This standard
differs substantively from the former expectation that the agency
establish prima facie evidence of a program violation before im-
posing a payment hold. It also more closely comports with the
federal requirement that the state suspend payments upon veri-
fying fraud allegations that have "indicia of reliability." 76 FR 5932
(2011). No changes are made in response to this comment. As
previously discussed, new federal and state legislation impose
some potential liability for certain actions by affiliates. Given the
expedited due process and costs associated with imposing a
payment hold, OIG does not expect to employ this provision in
many circumstances. No changes are made in response to this
comment.
Comment: TMA comments that it strongly urges that OIG include
a requirement that an integrity review of a physician be done by
an expert physician panel as used by the Texas Medical Board.ADOPTED RULES October 5, 2012 37 TexReg 7991
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Texas. Secretary of State. Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012, periodical, October 5, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth288982/m1/176/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.