UTAH EXCLUSION, SCREENING AND SANCTION OVERVIEW

Utah OIG of Medicaid Services Mission Statement:

The Utah Office of Inspector General of Medicaid Services will comprehensively review Medicaid policies, programs, contracts and services in order to identify root problems contributing to fraud, waste, and abuse within the system and make recommendations for improvement to Medicaid management and the provider community. The Utah OIG accomplishes its mission through three key interactive teams:

  • Special Investigations Unit and Medical Review: This team performs post payment reviews, mandated reviews and investigates Medicaid payments to ensure compliance with policy.
  • Performance Audit: This team focuses on reducing waste, abuse, and fraud through preventive control audits and independent reviews of key Medicaid and related agency processes.
  • Policy, Training, Data Analytics: Provides critical tools necessary to identify and investigate fraud, waste, and abuse in the Medicaid system.

Under Utah state law, providers may be excluded from participating in state Medicaid and CHIP programs. However, Utah is one of the few states that does not maintain a state Medicaid exclusion list but instead relies on the federal HHS-OIG List of Excluded Individuals and Entities (LEIE). The Utah OIG for Medicaid Services regularly updates its homepage with notice of updates to the LEIE and the reminder that anyone who hires an individual or entity on the LEIE may be subject to civil monetary penalties

State Agencies with Medicaid Management and Enforcement

The Utah Office of the Attorney General includes the Medicaid Fraud Control Unit whose mission is to protect the integrity of the Medicaid program and the safety and property of the citizens of the State of Utah through skilled detection, proactive investigation, prevention, prosecution, and financial recovery.

The Utah OIG for Medicaid Services, as noted above, is responsible for oversight, program integrity/billing audits and fraud waste and abuse support for the Utah Medicaid system.

The Utah Department of Health is the state agency designated to administer or supervise the administration of the Medicaid program under Title XIX of the federal Social Security Act and has broad discretion to exclude and sanction providers for criminal or professional misconduct. Within the Utah Department of Health, the Division of Health Care Financing has been designated as the medical assistance unit.

The Utah Department of Commerce includes the Division of Occupational and Professional Licensing (DOPL). The Provider Sanction Committee of the DOPL has broad discretion in determining provider participation in the Utah Medicaid program as noted below in UAC R414-22-3 et seq below.  The DOPL maintains a searchable database of licensed professionals and includes licensure status and whether a licensed professional has been disciplined.

Grounds for Medicaid Provider Exclusion/Sanction by the Utah Department of Health

Utah Administrative Code (UAC) R414-22-3.  Grounds for Excluding Providers.

  1. Upon learning of the crime, misdemeanor or misconduct, the Department shall exclude a prospective Medicaid provider who:
    1. has a current restriction, suspension, or probation from the Division of Professional and Occupational Licensing (DOPL) or another state’s equivalent agency for sexual misconduct with a child, minor, or non-consenting adult under Title 76 of the Criminal Code; or
    2. is serving any term, completing any associated probation or parole, or still making complete court- imposed restitution for a felony conviction involving:
      1. a sexual crime;
      2. a controlled substance; or
      3. health care fraud
    3. has a current restriction on their license from DOPL or another state’s equivalent agency to treat only a certain age group or gender or DOPL requires another medical professional to supervise and restrict the provider’s activity; or
    4. is serving any term, completing any associated probation or parole, or still making complete court-imposed restitution for a misdemeanor conviction that involves a controlled substance.
  2. Upon learning of the crime, misdemeanor or misconduct, the Department shall terminate a current Medicaid provider for any violation stated in Subsection R414-22-3(1).
  3. Subject to approval of the Provider Sanction Committee, the Department may enroll a provider who has served any term, completed any associated probation or parole, or made complete court-imposed restitution for a prior felony conviction involving:
    1. a sexual crime;
    2. a controlled substance; or
    3. health care fraud.
  4. Subject to approval of the Provider Sanction Committee, the Department may enroll a provider or allow a provider to remain in the Medicaid program if the provider has a previous restriction, suspension, or probation from DOPL for sexual misconduct with a child, minor, or non-consenting adult under Title 76 of the Criminal Code.
  5. Subject to approval of the Provider Sanction Committee, the Department may allow a provider to remain in the Medicaid program when the Office of Inspector General of Medicaid Services has recommended the program consider termination of the provider.
  6. The Provider Sanction Committee may consider the need to maintain client access to services when making a determination related to convictions or sanctions described in Subsection R414-22-3(3), (4), or (5).
  7. The Provider Sanction Committee may use any grounds described in Section R414-22-4 to exclude providers from Medicaid.
  8. The Department may exclude a prospective Medicaid provider who has a current restriction, suspension, or probation from DOPL or another state’s equivalent agency.
  9. The Provider Sanction Committee may exclude a prospective provider for significant misconduct or substantial evidence of misconduct that creates a substantial risk of harm to the Medicaid program.
  10. If after review, the Provider Sanction Committee finds there is prior misconduct outlined in Section R414-22-3 or Section R414-22-4, the committee retains discretionary authority to not renew a provider agreement, to not reinstate a provider agreement, and to not enroll a provider until the provider has completed all requirements deemed necessary by the committee.

UAC R414-22-4.  Grounds for Sanctioning Providers.

The Department may impose sanctions against a provider who:

  1. knowingly present, or cause to be presented, to Medicaid any false or fraudulent claim, other than simple billing errors, for services or merchandise; or
  2. knowingly submits, or cause to be submitted, false information for the purpose of obtaining greater Medicaid reimbursement than the provider is legally entitled to; or
  3. knowingly submits, or cause to be submitted, for Medicaid reimbursement any claims on behalf of a provider who has been terminated or suspended from the Medicaid program, unless the claims for that provider were included for services or supplies provided prior to his suspension or termination from the Medicaid program; or
  4. knowingly submits, or cause to be submitted, false information for the purpose of meeting Medicaid prior authorization requirements; or
  5. fails to keep records that are necessary to substantiate services provided to Medicaid recipients; or
  6. fails to disclose or make available to the Department, its authorized agents, or the State Fraud Control Unit, records or services provided to Medicaid recipients or records of payments made for those services; or
  7. fails to provide services to Medicaid recipients in accordance with accepted medical community standards as adjudged by either a body of peers or appropriate state regulatory agencies; or
  8. breaches the terms of the Medicaid provider agreement; or
  9. fail to comply with the terms of the provider certification on the Medicaid claim form; or
  10. overutilizes the Medicaid program by inducing, providing, or otherwise causing a Medicaid recipient to receive services or merchandise that is not medically necessary; or
  11. rebates or accepts a fee or portion of a fee or charge for a Medicaid recipient referral; or
  12. violates the provisions of the Medical Assistance Act under Title 26, Chapter 18, or any other applicable rule or regulation; or
  13. knowingly submits a false or fraudulent application for Medicaid provider status; or
  14. violates any laws or regulations governing the conduct of health care occupations, professions, or regulated industries; or
  15. is convicted of a criminal offense relating to performance as a Medicaid provider; or
  16. conducts a negligent practice resulting in death or injury to a patient as determined in a judicial proceeding; or
  17. fails to comply with standards required by state or federal laws and regulations for continued participation in the Medicaid program; or
  18. conducts a documented practice of charging Medicaid recipients for Medicaid covered services over and above amounts paid by the Department unless there is a written agreement signed by the recipient that such charges will be paid by the recipient; or
  19. refuses to execute a new Medicaid provider agreement when doing so is necessary to ensure compliance with state or federal law or regulations; or
  20. fails to correct any deficiencies listed in a Statement of Deficiencies and Plan of Correction, CMS Form 2567, in provider operations within a specific time frame agreed to by the Department and the provider, or pursuant to a court or formal administrative hearing decision; or
  21. is suspended or terminated from participation in Medicare for failure to comply with the laws and regulation governing that program; or
  22. fails to obtain or maintain all licenses required by state or federal law to legally provide Medicaid services; or
  23. fails to repay or make arrangements for repayment of any identified Medicaid overpayments, or otherwise erroneous payments, as required by the State Plan, court order, or formal administrative hearing decision.
  24. The Department may sanction a Medicaid provider who has a current restriction, suspension, or probation from DOPL or another state’s equivalent agency.
  25. The Provider Sanction Committee may sanction a provider for significant misconduct or substantial evidence of misconduct that creates a substantial risk of harm to the Medicaid program.
  26. If after review, the Provider Sanction Committee finds there is prior misconduct outlined in Section R414-22-3 or Section R414-22-4, the committee retains discretionary authority to not renew a provider agreement, to not reinstate a provider agreement, and to not enroll a provider until the provider has completed all requirements deemed necessary by the committee.

UAC R414-22-5.  Sanctions.

Sanctions for violating any subsection of Section R414-22-4 are:

  1. Termination from participation in the Medicaid program; or
  2. Suspension of participation in the Medicaid program.

R414-22-6.  Imposition of Sanction.

  1. Before the Department decides to impose a sanction, it shall notify the provider, in writing, of:
    1. the findings of any investigation by the Department, its agents, or the Bureau of Medicaid Fraud; and
    2. any possible sanctions the Department may impose.
  2. Providers shall have 30 days after the notice date to respond in writing to the findings of any investigation.  A written request for additional time of less than 30 days may be granted by the Department for good cause shown.
  3. The Provider Sanction Committee has the discretion to impose sanctions after receiving the provider’s input.
  4. The Provider Sanction Committee may consider the following factors when determining which sanction to impose:
    1. seriousness of offense;
    2. extent of offense;
    3. history of prior violations of Medicaid or Medicare law;
    4. prior imposition of sanctions by the Department;
    5. extent of prior notice, education, or warning given to the provider by the Department pertaining to the offense for which the provider is being considered for sanction;
    6. adequacy of assurances by the provider that the provider will comply prospectively with Medicaid requirements related to the offense;
    7. whether a lesser sanction will be sufficient to remedy the problem;
    8. sanctions imposed by licensing boards or peer review groups and professional health care associations pertaining to the offense; and
    9. suspension or termination from participation in another governmental medical program for failure to comply with the laws and regulations governing these programs.
  5. When the Department decides to impose a sanction, it shall notify the provider at least ten calendar days before the sanction’s effective date.

R414-22-7.  Scope of Sanction.

  1. Once a provider is suspended or terminated, the Department shall only pay claims for services provided prior to the suspension or termination.
  2. The Department may suspend or terminate any individual, clinic, group, corporation, or other similar organization, who allows a sanctioned provider to bill Medicaid under the clinic, group, corporation or organization provider number.

R414-22-8.  Notice of Sanction.

  1. When a provider has been sanctioned for a period exceeding 15 days, the Department may notify the applicable professional society, board of registration or licensor, and federal or state agencies.
  2. Notice includes:
    1. the findings made; and
    2. the sanctions imposed.
  3. The Department shall timely notify any appropriate Medicaid recipient of the provider’s suspension or termination from the Medicaid program.

Utah Medicaid Provider Manual

The current Utah Medicaid Provider Manual clearly sets forth the federal and state standards related to provider exclusion and sanctions as well as the requirement to regularly monitor the LEIE.  

Part I, Section 3-2: Ineligibility of Provider

The Division of Medicaid and Health Financing may refuse to grant provider privileges to anyone who has been convicted of a criminal offense relating to that person’s involvement in any program established under Titles XVIII, XIX, XXI or XX of the Social Security Act, or of a crime of such nature that, in the judgment of the Department, the participation of such provider would compromise the integrity of the Medicaid Program or put the clients at risk. The Division may terminate any provider from further participation in Medicaid if the provider fails to satisfy all applicable criteria for eligibility.  Specific rules, including grounds for sanctions and termination, are found in Utah Administrative Code R414-22, and is discussed in Chapter 5, Provider Sanctions.

Chapter 5 Provider Sanctions

Provider Sanctions

Sanctions, which include termination or suspension from participation in the Medicaid program, may be imposed against a provider for conduct such as fraudulent billing practices, failure to keep records to substantiate services to members, failure to repay unauthorized funds, and conviction of certain criminal offenses. Prospective providers may also be excluded from the Medicaid program on certain grounds, such as fraud or current license limitation imposed by the Division of Professional and Occupational Licensing (DOPL) or another state’s licensing board. Before a sanction may be imposed, a provider must be notified of the pending sanction and of his hearing rights. Utah Administrative Code R414-22, Administrative Sanction Procedures and Regulations, provides a more complete description of grounds for sanctions, and administrative sanctions that may be taken against providers.

5-1 Suspension or Termination from Medicaid

The Department may suspend or terminate from Medicaid participation any medical practitioner or other health care professional licensed under state law who is convicted of Medicaid or Medicare related crime(s) in either a federal or state court.

When a practitioner or other health care professional is convicted and sentenced in a state court of Medicaid-related crime(s), the Department notifies the Office of Inspector General. (Refer to Chapter 5, Provider Sanctions.)

The Department may request a waiver of suspension or termination if the sanction is expected to have a substantial negative impact on the availability of medical care in the community or area. The waiver request should contain a brief statement outlining the problem, and be submitted to the Centers for Medicare & Medicaid Services (CMS). CMS will notify the Department if and when it waives the sanction. Waivers should only occur if:

  • The Secretary of the Department of Health and Human Services has designated a health manpower shortage area; and
  • An insufficient number of National Health Services Corps personnel has been assigned to the needs of that area.

5-2 Employment of Sanctioned Individuals

Federal Fraud and Abuse regulations adopted by Health and Human Services, Office of Inspector General, provide for significant civil and criminal actions that may be taken against Medicaid providers who employ federally sanctioned individuals. This is true even if the sanctioned individual does not work directly in providing services to individuals under the Medicaid program.

Providers need to be aware that it is their responsibility to verify that the individual is not on a federal sanctions list. Thus, it is essential that providers regularly check (i.e., monthly) the federal sanctions list, which is at https://exclusions.oig.hhs.gov/. If a provider employs an individual who is on the federal sanctions list, and that person provides services which are directly or indirectly reimbursed by a federally funded program, the employer may be subject to legal action which could include civil penalties, criminal prosecution and exclusion from program participation. It is essential that providers regularly check the federal sanctions list which can be found at the website listed above. It would be advisable for all providers to check current and potential employees against the list on the federal database to ensure that no sanctioned individuals are working for their organization.

Utah Medicaid Provider Agreement

The Utah Medicaid Provider Agreement  (using the Healthy U contract as an example) covers provider exclusion and screening requirements extensively:

6.3 Prohibited Affiliations with Individuals Debarred by Federal Agencies

6.3.1 General Requirements

(A) In accordance with Section 1932(d) of the Social Security Act and 42 CFR 438.610:

  1. The Contractor shall not knowingly have a director, officer, partner, Subcontractor as governed by 42 CFR 438.230, Network Provider, or person with beneficial ownership of more than 5% of the Contractor’s equity who is: (i) debarred, Suspended, or otherwise Excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under any guidelines implementing such order; or (ii) an affiliate, as defined in the Federal Acquisition Regulation, of a person who is disbarred, Suspended, or otherwise Excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under any guidelines implementing such order.
  2. The Contractor shall not knowingly have a Network Provider or an employment, consulting, or any other agreement with a person for the provision of items or services that are significant and material to the Contractor’s obligations to the Department who is: (i) debarred, Suspended, or otherwise Excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under any guidelines implementing such order; or (ii) an affiliate, as defined in the Federal Acquisition Regulation, of a person who is disbarred, Suspended, or otherwise Excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under any guidelines implementing such order.

(B) In accordance with 42 CFR 438.610(b), the Contractor may not have a relationship with an individual or entity that is excluded from participation in any Federal health care program under Section 1128 or 1128A of the Social Security Act.

6.3.2 Screening for Prohibited Affiliations

(A) The Contractor shall maintain written policies and procedures for conducting routine searches for prohibited affiliations.

(B) The Contractor is required to screen the following relationships to ensure it has not entered into a prohibited affiliation:

  1. Directors, officers, or partners of the Contractor (including the Contractor’s Board of Directors, if applicable);
  2. Subcontractor as governed by 42 CFR 438.230;
  3. Persons with beneficial ownership of 5 percent or more in the Contractor’s equity;
  4. Network Providers; or
  5. Persons with an employment, consulting, or other arrangement with the Contractor for the provision of items and services that are significant and material to the Contractor’s obligation under this Contract with the Department.

(C) Before entering into a relationship with the individuals listed in Article 6.3.2(B)(1), (2), (3), (4), and (5) the Contractor shall, at minimum:

  1. Conduct searches of the LEIE and EPLS databases and any other database required by the Department to ensure that the individuals listed in Article 6.3.2(B)(1), (2), (3), (4), and (5) have been debarred, Suspended, or otherwise Excluded; and
  2. Conduct searches of the LEIE and EPLS databases and any other database required by the Department to ensure that the individuals listed in Article 6.3.2(B)(1), (2), (3), (4), and (5) have been debarred, Suspended, or otherwise Excluded; and

(D) If the individuals listed in Article 6.3.2(B)(1), (2), (3), (4) and (5) are not found in the database searches, the Contractor is required to determine if the individual is an Affiliate, as defined by the Federal Acquisition Regulation, of a person who is disbarred, Suspended, or otherwise Excluded from participating in procurement activities under the Federal Acquisition Regulation or from participating in nonprocurement activities under regulations issued pursuant to Executive Order No. 12549 or under any guidelines implementing such order.

(E) If the Contractor determines based on database search results or from the attestation forms that a prohibited affiliation would result, the Contract may not enter into the relationship.

(F) For relationships with the individuals listed in Article 6.3.2(B)(1), (2), (3), (4) and (5) that exist on the effective date of this Contract, the Contractor shall perform the database searches and obtain the requisite attestations. Thereafter, the Contractor shall conduct monthly searches of the required databases to determine if those individuals have been added to the databases. The Contractor shall keep records showing that these monthly searches were conducted.

(G) If an entity other than the Contractor (for example, the Board of Directors) has the authority to enter into a relationship described in Article 6.3.2(B)(1), (2), (3), (4) and (5) of this Contract, then the Contractor or the other entity shall conduct the required database searches and obtain the requisite attestations. Thereafter the other entity or the Contractor shall conduct the monthly searches to ensure that those individuals have not been added to the databases. The party conducting the search shall keep records showing that these monthly searches were conducted.

6.4 Excluded Providers

6.4.1 Definition of Excluded Providers In accordance with 42 CFR 438.214(d), the Contractor may not employ or contract with Providers who are Excluded from participation in Federal Health Care Programs under either Section 1128 or 1128(A) of the Social Security Act. 6.4.2 Screening for Excluded Providers (A) The Contractor shall maintain written policies and procedures for conducting routine searches of the LEIE and EPLS databases and any other database required by the Department to ensure that the Providers are not restricted Providers.

(B) Before contracting with or employing a Provider, and as part of the credentialing and recredentialing processes, the Contractor shall search the LEIE and EPLS databases and any other database required by the Department to ensure that the Providers are not restricted Providers.

(C) For Providers that are Medicare-certified or are Medicaid Providers, the Contractor need search only for the Provider’s name (e.g., the name of a subcontracted hospital). For Providers that are not Medicare-certified or are not Medicaid Providers, the Contractor shall search for the Provider and its director.

(D) The Contractor shall conduct monthly searches of the LEIE and EPLS databases and any other database required by the Department to ensure that the Providers are not restricted Providers and maintain documentation showing that such searches were conducted.

(E) Once the Contractor has credentialed the potential Provider and enters into a Provider agreement, and the Provider is not Medicare-certified or is not a Medicaid Provider, the Contractor may delegate any of the following monthly searches:

  1. Searches of the Provider’s director; and/or
  2. Searches of the Provider’s providers who deliver Covered Services incident to the Provider’s obligations under its agreements with the Contractor.

(F) The Contractor shall perform searches not delegated to the Provider and shall maintain documentation that such searches were conducted.

(G) If the Contractor delegates the Exclusion searches to a Network Provider, the Contractor shall include this requirement in its written Provider agreement. The Contractor shall require the Provider to have policies and procedures for conducting the delegated searches, for maintaining documentation that such searches were conducted, and for reporting any Exclusion findings to the Contractor within 30 calendar days of the discovery.

(H) If the Contractor delegates Exclusion monitoring to a Provider, the Contractor shall have monitoring policies and procedures to ensure its Providers are conducting the Exclusion searches in accordance with the delegation agreement.

(I) Within 30 calendar days of either identifying an Excluded provider or receiving Exclusion information from a Provider, the Contractor shall notify the Department of the Exclusion by electronically submitting the information on the Department’s Disclosure of Excluded Provider Form to the Department.

6.4.3 Excluded Provider Payment Prohibition

(A) If the Contractor employs or contracts with an Excluded Provider, the Contractor is prohibited from paying for any claims for Covered Services to Enrollees which were furnished, ordered, or prescribed by Excluded Providers except as allowed by 42 CFR 1001.1901(c).

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