Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 8,006
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conviction, assessment of a civil monetary penalty, or imposition of an
exclusion;
(7) is an individual and has an ownership or control interest
or a substantial contractual relationship in or is an officer or managing
employee of a sanctioned entity, and who knew or should have known
of an action that constituted the basis for a conviction or mandatory
exclusion of the sanctioned entity; or
(8) is convicted, pleads guilty or pleads nolo contendere to
an offense arising from a fraudulent act under the Medicaid program,
which results in injury to a person age 65 or older, a person with a
disability, or a person younger than 18 years of age.
(b) OIG may exclude a person without sending prior notice of
intent to exclude in the following circumstances:
(1) OIG determines that the person is subject to mandatory
exclusion under subsection (a) of this section and the person may be
placing the health and/or safety of persons receiving services under an
HHS program at risk; or
(2) a person who is subject to mandatory exclusion under
subsection (a) of this section fails:
(A) to grant immediate access to OIG or to a Requesting
Agency upon reasonable request;
(B) to allow OIG or a Requesting Agency to conduct
any duties that are necessary to the performance of their official func-
tions; or
(C) to provide to OIG or a Requesting Agency as re-
quested copies or originals of any records, documents, or other items,
as determined necessary by OIG or the Requesting Agency.
(c) Notice.
(1) Except as provided in subsection (b) of this section,
when OIG proposes to exclude any person on mandatory grounds, it
gives written notice of its intent to exclude, which will include:
(A) the basis for the potential exclusion;
(B) the potential effect of the exclusion; and
(C) whether OIG also proposes to cancel any agreement
held by the person to be excluded.
(2) When OIG makes a final determination to exclude a
person on mandatory grounds or when the exclusion is based upon the
grounds described in subsection (b) of this section, OIG issues a final
notice of exclusion, which will include:
(A) a description of the final exclusion;
(B) the basis of the final exclusion;
(C) the effect of the final exclusion;
(D) the duration of the final exclusion;
(E) the earliest date on which OIG will consider a re-
quest for reinstatement;
(F) the requirements and procedures for reinstatement;
and
(G) a statement of the person's right to request a formal
administrative appeal hearing regarding the exclusion.
(d) Due process.
(1) A person may request an informal review in accordance
with 371.1613 of this subchapter (relating to Informal Review) after
receipt of a notice of intent to exclude. OIG must receive the writtenrequest for the informal review no later than the thirtieth (30th) calendar
day after the date the person receives the potential notice. A request for
an informal review does not expand the time allowed to the provider to
request an administrative hearing.
(2) Within 30 days of receipt of the notice of potential ex-
clusion, the person receiving the notice may submit to OIG, any doc-
umentary evidence or written argument regarding whether exclusion
is warranted and any related issues to be considered during the infor-
mal review. Submission of documentary evidence or written argument,
however, is no guarantee that OIG will not ultimately exclude the per-
son.
(3) A person may request an administrative appeal hearing
in accordance with 371.1615 of this subchapter (relating to Appeals)
after receipt of a final notice of exclusion. OIG must receive the written
request for an appeal no later than the 15th calendar day after the date
the person receives final notice.
(4) If both an informal review and an administrative hear-
ing are requested after a final notice of exclusion, OIG may elect, in
its sole discretion, to conduct an informal review. The administra-
tive hearing and all pertinent discovery, prehearing conferences, and
all other issues and activities regarding the administrative hearing will
be abated until all informal review discussions have concluded without
settlement or resolution of the issues.
(5) When the exclusion is based on the existence of a crimi-
nal conviction, a civil fraud finding, a civil judgment imposing liability
by federal, state, or local court, a determination by another government
agency or board, any other prior determination, or provisions within a
settlement agreement, the basis for the underlying determination is not
reviewable and the individual or entity may not collaterally attack the
underlying determination, either on substantive or procedural grounds,
in an administrative appeal.
(e) Scope and effect of exclusion.
(1) The period of exclusion begins on the effective date.
An exclusion becomes effective on the following:
(A) the date the person's health care services or items
became ineligible for federal financial participation as described in sub-
section (a)(1) of this section;
(B) the effective date the person lost their license, cer-
tification, or other qualifying requirement as described in subsection
(a)(2) of this section;
(C) the date of the criminal judgment of conviction as
described in subsection (a)(3) - (5) and (8) of this section;
(D) the date of the criminal judgment of conviction, or
effective date of the assessment of civil monetary penalties or exclusion
as described in subsection (a)(6) of this section;
(E) the effective date of final determination of liability
pursuant to Texas Human Resources Code 32.039(c) as described in
subsection (a)(8) of this section;
(F) the date reflected on the final notice of exclusion if
the exclusion is based on a health or safety risk as described in subsec-
tion (b)(1) of this section;
(G) the date of the original request for records if the ex-
clusion is based on failure to provide access as described in subsection
(b)(2) of this section;
(H) unless otherwise provided, twenty (20) days after
the person's receipt of the final notice of exclusion if the provider does37 TexReg 8006 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/m1/191/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.