Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,996
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tivities, requests, and time of requests at the utmost importance
in this program. TMA requests that OIG allow for reasonable
compliance, make exceptions in certain circumstances, and be
open to good faith efforts at compliance with OIG's requests.
TMA requests that subsection (g)(6)(B) be stricken.
Response: 42 CFR 1001.1301, 1001.2001(c) and existing
rule 1 TAC 371.1659(a)(3) already authorize immediate exclu-
sion without prior notice for failure to grant immediate access
to records. This rule does not expand OIG's existing authority.
OIG is unaware of any instance in which this authority has been
abused in the past.
OIG normally works with providers to arrange access to a fa-
cility in advance, during normal business hours. OIG normally
works out records production schedules with providers in order to
lessen their administrative burdens and allow for a normal pace
of records production. But OIG has a legitimate need on occa-
sion to have immediate access to a facility for surprise audits
or investigations, site visits to high-risk provider locations, and
investigations involving allegations of possible client abuse or
neglect. No changes are made in response to this comment.
Comment: TMA commented that 371.1705(b) provides that
OIG may exclude a person without sending prior notice under
certain circumstances. TMA appreciates the need to have an
exclusion when the health or safety of a person is being placed
at risk, but strongly objects to mandatory exclusion without prior
notice for those reasons enumerated in subsection (b)(2).
Response: OIG's proposed rule resembles its federal counter-
parts. 42 CFR 1001.2001(c) provides that the government may
exclude a person without sending prior notice if the basis of the
exclusion includes failure to grant immediate access, as defined
in 42 CFR 1001.1301(a)(3). OIG has not excluded any provider
in recent years without sending a prior notice, and it does not an-
ticipate that this provision will be used often. But OIG will submit
the rule as written so that it comports with federal authority. No
changes are made in response to this comment.
Comment: TMA states that 371.1705(e) provides when the ex-
clusion becomes effective. If the person files a timely appeal,
the date of the exclusion should be when the administrative law
judge upholds the exclusion. To allow otherwise would chill the
ability of a provider to have an appeal in good faith. OIG can
place holds or prepayment reviews, etc. on any subsequent
billing, but should not make a finding retroactive when an ap-
peal has occurred.
Response: The Medicaid program cannot pay a provider who
has been disqualified from providing services by the events giv-
ing rise to retroactive exclusion. Moreover, the effective date will
be retroactive only if and when the administrative judge renders
a decision to uphold the exclusion. If, conversely, the administra-
tive law judge reverses the exclusion, the provider has benefited
from the appeals process. No changes are made in response to
this comment.
Comment: TMA expressed concern regarding
371.1705(e)(4)(D) which provides that an excluded person is
prohibited from "accepting employment by any person whose
revenue stream includes funds from a Title V, VIII, XIX, XX
or CHIP program." This prohibition seems overly broad and
harsh. If the person is not obtaining any benefit or income
from these programs, the person should not be prohibited from
being employed by an entity who receives income from these
programs. Indeed, this prohibition is absolute, regardless of
how small or insignificant the income stream to the entity is.Response: 42 CFR 1002.211 prohibits the agency from pay-
ing for any item or service furnished by an excluded person.
Federal guidance is clear that payments made to an excluded
provider and payments made for services rendered by an ex-
cluded provider are overpayments and must be recouped by the
state. See CMS SMDL #09-001. The U.S. Department of Health
and Human Services OIG interprets this to mean that "an ex-
cluded person may not be employed by a provider to perform
any functions for which the provider is paid, in whole or in part,
by any federal health care program." No changes are made in
response to this comment.
Comment: TMA reiterates its objections to 371.1705 here, as
371.1707 mirrors 371.1705. In that regard, and for the same
reasons stated above, TMA objects to subsection (b), which al-
lows OIG to exclude a person without sending prior notice of in-
tent to exclude. TMA urges OIG to always send a notice of intent
to exclude.
Response: OIG's proposed rule resembles its federal counter-
parts. 42 CFR 1001.2001(c) provides that the government may
exclude a person without sending prior notice if the basis of the
exclusion includes failure to grant immediate access, as defined
in 42 CFR 1001.1301(a)(3). OIG has not excluded any provider
in recent years without sending a prior notice, and it does not an-
ticipate that this provision will be used often. But OIG will submit
the rule as written so that it comports with federal authority. No
changes are made in response to this comment.
Comment: TMA objects to 371.1707(e)(1)(D), which makes an
exclusion after an administrative appeal retroactive.
Response: The retroactivity provision is limited to those per-
missive appeals that are based upon a determination that the
provider was placing the health or safety of Medicaid clients at
risk, or the provider failed to grant access or records. OIG has
not excluded any provider on either basis in recent years, and it
does not anticipate that this provision will be used often. More-
over, this rule does not render the appeals process meaningless;
if the provider prevails, there will be no retroactive effective date
of termination. No changes are made in response to this com-
ment.
Comment: TMA objects to 371.1707(e)(4)(D) which prohibits
an excluded person from "accepting employment by any person
whose revenue stream includes funds from a Title V, VIII, XIX,
XX or CHIP program." TMA objects to (a)(2) allowing OIG to ex-
clude a physician for being affiliated with a person who commits
a program violation. As noted throughout our comments, physi-
cians should not be held accountable for the actions of someone
over whom they have no control.
Response: 42 CFR 1002.211 prohibits the agency from pay-
ing for any item or service furnished by an excluded person.
Federal guidance is clear that payments made to an excluded
provider and payments made for services rendered by an ex-
cluded provider are overpayments and must be recouped by the
state. See CMS SMDL #09-001. The U.S. Department of Health
and Human Services OIG interprets this to mean that "an ex-
cluded person may not be employed by a provider to perform
any functions for which the provider is paid, in whole or in part,
by any federal health care program." No changes are made in
response to this comment.
Comment: TMA comments that 371.1711(b)(3) provides that
OIG may recoup from any person who it establishes, by prima fa-
cie evidence, is "affiliated with" a person who commits a program
violation that leads to the payment of an overpayment. TMA ob-37 TexReg 7996 October 5, 2012 Texas Register
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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/m1/181/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.