(a) General.
(1) This section sets
forth provisions for invoking administrative remedies under CHAMPUS
in situations involving fraud, abuse, or conflict of interest. The
remedies impact institutional providers, professional providers,
and beneficiaries (including parents, guardians, or other representatives
of beneficiaries), and cover situations involving criminal fraud,
civil fraud, administrative determinations of conflicts of interest
or dual compensation, and administrative determinations of fraud
or abuse. The administrative actions, remedies, and procedures may
differ based upon whether the initial findings were made by a court
of law, another agency, or the Director, OCHAMPUS (or designee).
(2) This
section also sets forth provisions for invoking administrative remedies
in situations requiring administrative action to enforce provisions
of law, regulation, and policy in the administration of CHAMPUS
and to ensure quality of care for CHAMPUS beneficiaries. Examples
of such situations may include a case in which it is discovered
that a provider fails to meet requirements under this part to be an
authorized CHAMPUS provider; a case in which the provider ceases
to be qualified as a CHAMPUS provider because of suspension or revocation
of the provider’s license by a local licensing authority; or a case
in which a provider meets the minimum requirements under this part
but, nonetheless, it is determined that it is in the best interest
of the CHAMPUS or CHAMPUS beneficiaries that the provider should
not be an authorized CHAMPUS provider.
(3) The
administrative remedies set forth in this section are in addition
to, and not in lieu of, any other remedies or sanctions authorized
by law or regulation. For example, administrative action under this
section may be taken in a particular case even if the same case
will be or has been processed under the administrative procedures
established by the Department of Defense to implement the Program Fraud
Civil Remedies Act.
(4) Providers seeking
payment from the Federal Government through programs such as CHAMPUS have
a duty to familiarize themselves with, and comply with, the program
requirements.
(5) CHAMPUS contractors
and peer review organizations have a responsibility to apply provisions
of this regulation in the discharge of their duties, and to report
all known situations involving fraud, abuse, or conflict of interest.
Failure to report known situations involving fraud, abuse, or conflict
of interest will result in the withholding of administrative payments
or other contractual remedies as determined by the Director, OCHAMPUS,
or a designee.
(b)
Abuse.
The term “abuse” generally
describes incidents and practices which may directly or indirectly
cause financial loss to the Government under CHAMPUS or to CHAMPUS
beneficiaries. For the definition of abuse, see Sec. 199.2 of this
part. The type of abuse to which CHAMPUS is most vulnerable is the
CHAMPUS claim involving the overutilization of medical and health
care services. To avoid abuse situations, providers have certain
obligations to provide services and supplies under CHAMPUS which
are: Furnished at the appropriate level and only when and to the
extent medically necessary as determined under the provisions of
this part; of a quality that meets professionally recognized standards
of health care; and, supported by adequate medical documentation
as may reasonably be required under this part by the Director, OCHAMPUS,
or a designee, to evidence the medical necessity and quality of
services furnished, as well as the appropriateness of the level
of care. A provider’s failure to comply with these obligations can
result in sanctions being imposed by the Director, OCHAMPUS, or
a designee, under this section. Even when administrative remedies
are not initiated under this section, abuse situations under CHAMPUS
are a sufficient basis for denying all or any part of CHAMPUS cost-sharing
of individual claims. The types of abuse or possible abuse situations under
CHAMPUS include, but are not limited, to the following:
(1) A
pattern of waiver of beneficiary (patient) cost-share or deductible.
Note: In a case of a legitimate bad debt write-off of
patient cost-share or deductible, the provider’s record should include
documentation as to what efforts were made to collect the debt,
when the debt was written off, why the debt was written off, and
the amount of the debt written off.
(2) Improper
billing practices. Examples include, charging CHAMPUS beneficiaries
rates for services and supplies that are in excess of those charges
routinely charged by the provider to the general public, commercial
health insurance carriers, or other federal health benefit entitlement
programs for the same or similar services. (This includes dual fee
schedules--one for CHAMPUS beneficiaries and one for other patients
or third-party payers. This also includes billing other third-party
payers the same as CHAMPUS is billed but accepting less than the
billed amount as reimbursement. However, a formal discount arrangement
such as through a preferred provider organization, may not necessarily constitute
an improper billing practice.)
(3) A pattern of claims
for services which are not medically necessary or, if medically
necessary, not to the extent rendered. For example, a battery of
diagnostic tests are given when, based on the diagnosis, fewer tests
were needed.
(4) Care of inferior
quality. For example, consistently furnishing medical or mental
health services that do not meet accepted standards of care.
(5) Failure
to maintain adequate medical or financial records.
(6) Refusal
to furnish or allow the Government (for example, OCHAMPUS) or Government contractors
access to records related to CHAMPUS claims.
(7) Billing
substantially in excess of customary or reasonable charges unless
it is determined by OCHAMPUS that the excess charges are justified
by unusual circumstances or medical complications requiring additional
time, effort, or expense in localities when it is accepted medical
practice to make an extra charge in such cases.
(8) Unauthorized
use of the term “Civilian Health and Medical Program of the Uniformed
Services (CHAMPUS)” in private business. While the use of the term
“CHAMPUS” is not prohibited by federal statute, misrepresentation
or deception by use of the term “CHAMPUS” to imply an official connection with
the Government or to defraud CHAMPUS beneficiaries may be a violation
of federal statute. Regardless of whether the actual use of the
term “CHAMPUS” may be actionable under federal statute, the unauthorized
or deceptive use of the term “CHAMPUS” in private business will
be considered abuse for purposes of this Section.
(c)
Fraud.
For the definition of fraud,
see Sec. 199.2 of this part. Examples of situations which, for the
purpose of this part, are presumed to be fraud include, but are
not limited to:
(1) Submitting CHAMPUS
claims (including billings by providers when the claim is submitted
by the beneficiary) for services, supplies, or equipment not furnished
to, or used by, CHAMPUS beneficiaries. For example, billing or claiming
services when the provider was on call (other than an authorized standby
charge) and did not provide any specific medical care to the beneficiary;
providing services to an ineligible person and billing or submitting
a claim for the services in the name of an eligible CHAMPUS beneficiary;
billing or submitting a CHAMPUS claim for an office visit for a
missed appointment; or billing or submitting a CHAMPUS claim for
individual psychotherapy when a medical visit was the only service
provided.
(2) Billing or submitting
a CHAMPUS claim for costs for noncovered or nonchargeable services, supplies,
or equipment disguised as covered items. Some examples are: (i)
Billings or CHAMPUS claims for services which would be covered except
for the frequency or duration of the services, such as billing or
submitting a claim for two one-hour psychotherapy sessions furnished
on separate days when the actual service furnished was a two-hour
therapy session on a single day, (ii) spreading the billing or claims
for services over a time period that reduces the apparent frequency
to a level that may be cost-shared by CHAMPUS, (iii) charging to
CHAMPUS, directly or indirectly, costs not incurred or not reasonably
allowable to the services billed or claimed under CHAMPUS, for example,
costs attributable to nonprogram activities, other enterprises,
or the personal expenses of principals, or (iv) billing or submitting
claim on a fee-for-service basis when in fact a personal service
to a specific patient was not performed and the service rendered
is part of the overall management of, for example, the laboratory or
x-ray department.
(3) Breach of a provider
participation agreement which results in the beneficiary (including
parent, guardian, or other representative) being billed for amounts
which exceed the CHAMPUS-determined allowable charge or cost.
(4) Billings
or CHAMPUS claims for supplies or equipment which are clearly unsuitable
for the patient’s needs or are so lacking in quality or sufficiency
for the purpose as to be virtually worthless.
(5) Billings
or CHAMPUS claims which involve flagrant and persistent overutilization
of services without proper regard for results, the patient’s ailments,
condition, medical needs, or the physician’s orders.
(6) Misrepresentations
of dates, frequency, duration, or description of services rendered,
or of the identity of the recipient of the services or the individual
who rendered the services.
(7) Submitting falsified
or altered CHAMPUS claims or medical or mental health patient records which
misrepresent the type, frequency, or duration of services or supplies
or misrepresent the name(s) of the individual(s) who provided the
services or supplies.
(8) Duplicate billings
or CHAMPUS claims. This includes billing or submitting CHAMPUS claims
more than once for the same services, billing or submitting claims
both to CHAMPUS and the beneficiary for the same services, or billing
or submitting claims both to CHAMPUS and other third-parties (such
as other health insurance or government agencies) for the same services,
without making full disclosure of material facts or immediate, voluntary
repayment or notification to CHAMPUS upon receipt of payments which
combined exceed the CHAMPUS-determined allowable charge of the services involved.
(9) Misrepresentation
by a provider of his or her credentials or concealing information
or business practices which bear on the provider’s qualifications
for authorized CHAMPUS provider status. For example, a provider
representing that he or she has a qualifying doctorate in clinical
psychology when the degree is not from a regionally accredited university.
(10) Reciprocal
billing. Billing or claiming services which were furnished by another
provider or furnished by the billing provider in a capacity other
than as billed or claimed. For example, practices such as the following:
(i) One provider performing services for another provider and the
latter bills as though he had actually performed the services (e.g.,
a weekend fill-in); (ii) providing service as an institutional employee
and billing as a professional provider for the services; (iii) billing
for professional services when the services were provided by another
individual who was an institutional employee; (iv) billing for professional
services at a higher provider profile than would be paid for the
person actually furnishing the services, (for example, bills reflecting
that an M.D. or Ph.D. performed the services when services were
actually furnished by a licensed social worker, psychiatric nurse,
or marriage and family counselor); or (v) an authorized provider
billing for services which were actually furnished by an unauthorized
or sanctioned provider.
(11) Submitting
CHAMPUS claims at a rate higher than a rate established between
CHAMPUS and the provider, if such a rate has been established. For
example, billing or claiming a rate in excess of the provider’s
most favored rate limitation specified in a residential treatment
center agreement.
(12) Arrangements by
providers with employees, independent contractors, suppliers, or
others which appear to be designed primarily to overcharge the CHAMPUS
through various means (such as commissions, fee-splitting, and kickbacks)
used to divert or conceal improper or unnecessary costs or profits.
(13) Agreements
or arrangements between the supplier and recipient (recipient could
be either a provider or beneficiary, including the parent, guardian,
or other representative of the beneficiary) that result in billings
or claims which include unnecessary costs or charges to CHAMPUS.
(d) Conflict of Interest.
(1) Conflict
of interest includes any situation where an active duty member of
the Uniformed Services (including a reserve member while on active
duty, active duty for training, or inactive duty training) or civilian
employee of the United States Government, through an official federal position
has the apparent or actual opportunity to exert, directly or indirectly,
any influence on the referral of CHAMPUS beneficiaries to himself/herself
or others with some potential for personal gain or the appearance
of impropriety. Although individuals under contract to the Uniformed
Services are not considered “employees,” such individuals are subject
to conflict of interest provisions by express terms of their contracts
and, for purposes of this part, may be considered to be involved
in conflict of interest situations as a result of their contract
positions. In any situation involving potential conflict of interest of
a Uniformed Service employee, the Director, OCHAMPUS, or a designee,
may refer the case to the Uniformed Service concerned for appropriate
review and action. If such a referral is made, a report of the results
of findings and action taken shall be made to the Director, OCHAMPUS,
by the Uniformed Service having jurisdiction within 90 days of receiving
the referral.
(2) CHAMPUS cost-sharing
shall be denied on any claim where a conflict of interest situation
is found to exist. This denial of cost-sharing applies whether the
claim is submitted by the individual who provided the care, the
institutional provider in which the care was furnished, or the beneficiary.
(e) Dual Compensation.
(1) Federal
law (5 U.S.C. 5536) prohibits active duty members of the Uniformed
Services or employees (including part-time or intermittent) appointed
in the civil service of the United States Government from receiving
additional compensation from the Government above their normal pay
and allowances. This prohibition applies to CHAMPUS payments for
care furnished to CHAMPUS beneficiaries by active duty members of
the Uniformed Services or civilian employees of the Government.
(2) CHAMPUS
cost-sharing of a claim shall be denied where the services or supplies
were provided by an active duty member of the Uniformed Services
or a civilian employee of the Government. This denial of CHAMPUS
payment applies whether the claim for reimbursement is filed by
the individual who provided the care, the institutional provider
in which the care was furnished, or by the beneficiary.
Note: Physicians of the National Health Service Corps
(NHSC) may be assigned to areas where there is a shortage of medical
providers. Although these physicians would be prohibited from accepting CHAMPUS
payments as individuals if they are employees of the United States
Government, the private organizations to which they may be assigned
may be eligible for payment, as determined by the Director, OCHAMPUS,
or a designee.
(3) The prohibition
against dual compensation does not apply to individuals under contract
to the Uniformed Services or the Government.
(f) Administrative
Remedies.
Administrative
remedies available under CHAMPUS in this section are set forth below.
(1) Provider exclusion
or suspension.
The
Director, OCHAMPUS, or a designee, shall have the authority to exclude
or suspend an otherwise authorized CHAMPUS provider from the program
based on any criminal conviction or civil judgment involving fraud
by the provider; fraud or abuse under CHAMPUS by the provider; exclusion
or suspension of the provider by another agency of the Federal Government, a
state, or local licensing authority; participation in a conflict
of interest situation by the provider; or, when it is in the best
interests of the program or CHAMPUS beneficiaries to exclude or
suspend a provider under CHAMPUS. In all cases, the exclusion or
suspension of a provider shall be effective 15 calendar days from
the date on the written initial determination issued under paragraph
(h)(2) of this section.
(i) Criminal conviction or civil judgment involving
fraud by a provider--
(A) Criminal
conviction involving CHAMPUS fraud.
A provider convicted by a
Federal, state, foreign, or other court of competent jurisdiction
of a crime involving CHAMPUS fraud, whether the crime is a felony
or misdemeanor, shall be excluded or suspended from CHAMPUS for
a period of time as determined by the Director, OCHAMPUS, or a designee.
The CHAMPUS exclusion or suspension applies whether or not the provider, as
a result of the conviction, receives probation or the sentence is
suspended or deferred, and whether or not the conviction or sentence
is under appeal.
Note: Under the above
paragraph (f)(1)(i)(A) of this section, an entity may be excluded
or suspended from CHAMPUS whenever the entity is found to have a
person, convicted of a crime involving CHAMPUS fraud, who has a
direct or indirect ownership or control interest (see Sec. 199.2)
of 5 percent or more in the entity, or is an officer, director,
agent or managing employee of the entity. The entity will have an
opportunity to provide evidence to show that the ownership or control
relationship has ceased. While an entity will not be excluded or
suspended from CHAMPUS for employing a provider who has been sanctioned
under this Section, the entity will be denied CHAMPUS payment for
any services furnished by the sanctioned employee. As an authorized
CHAMPUS provider, the entity is responsible for ensuring that all
CHAMPUS claims involve services furnished to CHAMPUS beneficiaries by
employees who meet all requirements under CHAMPUS for provider status.
(B) Criminal conviction
involving fraud of other Federal programs.
Any provider convicted by
a Federal, state, or other court of competent jurisdiction of a
crime involving another Federal health care or benefit program (such
as plans administered under titles XVIII and XIX of the Social Security
Act, Federal Workmen’s Compensation, and the Federal Employees Program
(FEP) for employee health insurance), whether the crime is a felony
or misdemeanor, shall be excluded from CHAMPUS for a period of time
as determined by the Director, OCHAMPUS, or a designee. The CHAMPUS
exclusion or suspension applies whether or not the provider, as
a result of the conviction, receives probation or the sentence is
suspended or deferred, and whether or not the conviction or sentence
is under appeal.
(C) Criminal conviction involving fraud of non-Federal
programs.
Any
provider convicted by a Federal, state, foreign, or other court
of competent jurisdiction of a crime involving any non-Federal health benefit
program or private insurance involving health benefits may be excluded
or suspended from CHAMPUS for a period of time as determined by
the Director, OCHAMPUS, or a designee.
(D) Civil fraud involving
CHAMPUS.
If
a judgment involving civil fraud has been entered (whether or not
it is appealed) against a provider in a civil action involving CHAMPUS
benefits (whether or not other Federal programs are involved), the
provider shall be excluded or suspended from CHAMPUS for a period
determined by the Director, OCHAMPUS, or a designee.
(E) Civil fraud involving
other programs.
If a judgment involving civil fraud has been
entered against a provider (whether or not it has been appealed)
in a civil action involving other public or private health care
programs or health insurance, the provider may be excluded or suspended
for a period of time determined by the Director, OCHAMPUS, or a
designee.
(ii) Administrative
determination of fraud or abuse under CHAMPUS. If
the Director of the Defense Health Agency determines a provider
committed fraud or abuse as defined in this part, the provider shall
be excluded or suspended from CHAMPUS/TRICARE for a period of time
determined by the Director. A final determination of an imposition
of a civil money penalty (CMP) under 32 CFR part 200 shall constitute
an administrative determination of fraud and abuse.
(iii) Administrative
determination that the provider has been excluded or suspended by
another agency of the Federal Government, a state, or local licensing
authority.
Any
provider who is excluded or suspended by any other Federal health
care program (for example, Medicare), shall be excluded or suspended under
CHAMPUS. A provider who has his/her credentials revoked through
a Veterans Administration or Military Department credentials review
process and who is excluded, suspended, terminated, retired, or
separated, shall also be excluded or suspended under CHAMPUS. The
period of time of exclusion or suspension shall be determined by
the Director, OCHAMPUS, or a designee, pursuant to paragraph (g) of
this section.
(iv) Administrative
determination that the provider has participated in a conflict of
interest situation.
The Director, OCHAMPUS, or a designee, may
exclude or suspend any provider who has knowingly been involved
in a conflict of interest situation under CHAMPUS. The period of
time of exclusion or suspension shall be determined by the Director,
OCHAMPUS, or a designee, pursuant to paragraph (g) of this section.
For purposes of this administrative determination, it will be presumed
that a CHAMPUS provider knowingly participated in a conflict of
interest situation if the provider employs, in the treatment of
a CHAMPUS beneficiary (resulting in a CHAMPUS claim), any medical
personnel who are active duty members of the Uniformed Services
or civilian employees of the Government. The burden of proof to
rebut this presumption rests with the CHAMPUS provider. Two exceptions
will be recognized to the presumption that a conflict of interest
exists. First, indirect CHAMPUS payments may be made to private
organizations to which physicians of the National Health Service
Corps (NHSC) are assigned. Second, any off-duty Government medical
personnel employed in an emergency room of an acute care hospital
will be presumed not to have had the opportunity to exert, directly
or indirectly, any influence on the referral of CHAMPUS beneficiaries;
therefore, CHAMPUS payments may be made to the employing hospital
provided the medical care was not furnished directly by the off-duty Government
medical personnel in violation of dual compensation provisions.
(v) Administrative
determination that it is in the best interests of the CHAMPUS or
CHAMPUS beneficiaries to exclude or suspend a provider--
(A) Unethical or
improper practices or unprofessional conduct.
(1) In most instances, unethical or improper
practices or unprofessional conduct by a provider will be program abuse
and subject the provider to exclusion or suspension for abuse. However,
in some cases such practices and conduct may provide an independent
basis for exclusion or suspension of the provider by the Director,
OCHAMPUS, or a designee.
(2) Such exclusions
or suspensions may be based on findings or recommendations of state
licensure boards, boards of quality assurance, other regulatory
agencies, state medical societies, peer review organizations, or
other professional associations.
(B) In any other
case in which the Director, OCHAMPUS (or designee), determines that
exclusion or suspension of a provider is in the best interests of
CHAMPUS or CHAMPUS beneficiaries.
The Director, OCHAMPUS, or
a designee, may exclude or suspend any provider if it is determined
that the authorization of that particular provider under CHAMPUS
poses an unreasonable potential for fraud, abuse, or professional
misconduct. Any documented misconduct by the provider reflecting
on the business or professional competence or integrity of the provider
may be considered. Situations in which the Director, OCHAMPUS, or
a designee, may take administrative action under this Section to protect
CHAMPUS or CHAMPUS beneficiaries include, but are not limited to,
a case in which it is determined that a provider poses an unreasonable
potential cost to the Government to monitor the provider for fraud
or abuse and to avoid the issuance of erroneous payments; or that
the provider poses an unreasonable potential harm to the financial
or health status of CHAMPUS beneficiaries; or that the provider
poses any other unreasonable threat to the interests of CHAMPUS
or CHAMPUS beneficiaries. One example of such circumstances involves
a provider who, for his/her entire practice or for most of his/her
practice, provides or bills for treatment that is not a CHAMPUS
benefit, resulting in CHAMPUS frequently and repeatedly denying
claims as non-covered services. This may occur when a professional provider
furnishes sex therapy (a therapy which may be recognized by the
provider’s licensing authority but which is excluded from CHAMPUS
coverage) and repeatedly submits CHAMPUS claims for the services.
(2) Provider termination.
The Director,
OCHAMPUS, or a designee, shall terminate the provider status of
any provider determined not to meet the qualifications established
by this part to be an authorized CHAMPUS provider.
(i) Effective date
of termination.
Except as provided in paragraph (g)(2)(ii)
of this section, the termination shall be retroactive to the date
on which the provider did not meet the requirements of this part.
(A) The
retroactive effective date of termination shall not be limited due
to the passage of time, erroneous payment of claims, or any other
events which may be cited as a basis for CHAMPUS recognition of
the provider notwithstanding the fact that the provider does not
meet program qualifications. Unless specific provision is made in
this part to “grandfather” or authorize a provider who does not
otherwise meet the qualifications established by this part, all
unqualified providers shall be terminated.
(B) Any
claims cost-shared or paid under CHAMPUS for services or supplies
furnished by the provider on or after the effective date of termination,
even when the effective date is retroactive, shall be deemed an
erroneous payment unless specific exception is provided in this
part. All erroneous payments are subject to collection under Sec.
199.11 of this part.
(C) If an institution
is terminated as an authorized CHAMPUS provider, the institution
shall immediately give written notice of the termination to any
CHAMPUS beneficiary (or their parent, guardian, or other representative)
admitted to, or receiving care at, the institution on or after the effective
date of the termination. In addition, when an institution is terminated
with an effective date of termination after the date of the initial
determination terminating the provider, any beneficiary admitted
to the institution prior to the effective date of termination (or
their parent, guardian, or other representative) shall be notified
by the Director, OCHAMPUS, or a designee, by certified mail of the termination,
and that CHAMPUS cost-sharing of the beneficiary’s care in the institution
will cease as of the effective date of the termination. However,
any beneficiary admitted to the institution prior to any grace period
extended to the institution under paragraph (f)(2)(ii)(A) of this
section shall be advised that, if the beneficiary’s care otherwise
qualifies for CHAMPUS coverage, CHAMPUS cost-sharing of the care
in the institution will continue in order to provide a reasonable
period of transition of care; however the transitional period of
CHAMPUS cost-sharing shall not exceed the last day of the month following
the month in which the institution’s status as a CHAMPUS provider
is terminated. (This authorized CHAMPUS cost-sharing of the inpatient
care received during the transition period is an exception to the
general rule that CHAMPUS payment for care furnished after the effective
date of termination of the provider’s status shall be deemed to
be an erroneous payment.) If a major violation under paragraph (f)(2)(ii)(B)
of this section is involved, in order to ensure immediate action
is taken to transfer beneficiaries to an approved provider, CHAMPUS
cost-sharing shall not be authorized after the effective date of
termination of the provider’s status.
(ii) Institutions
not in compliance with CHAMPUS standards.
If it is determined that an
institution is not in compliance with one or more of the standards
applicable to its specific category of institution under this part,
the Director, OCHAMPUS, or a designee, shall take immediate steps
to bring about compliance or terminate the status of the provider
as an authorized CHAMPUS provider.
(A) Minor violations.
An institution determined
to be in violation of one or more of the standards shall be advised
by certified mail of the nature of the discrepancy or discrepancies
and will be given a grace period of 30 days to effect appropriate
corrections. The grace period may be extended at the discretion
of the Director, OCHAMPUS, or a designee, but in no event shall
the extension exceed 90 days.
(1) CHAMPUS will
not cost-share a claim for any beneficiary admitted during the grace
period.
(2) Any beneficiary
admitted to the institution prior to the grace period (or the beneficiary’s
parent, guardian, or other representative) will be notified by the
Director, OCHAMPUS, or a designee, in writing, of the minor violations
and the grace period granted the institution to correct the violations.
The beneficiary will also be advised that, if the beneficiary’s
care otherwise meets all requirements for CHAMPUS coverage, CHAMPUS
cost-sharing will continue during the grace period.
(3) If the institution submits written notice
before the end of the grace period that corrective action has been
taken and if the Director, OCHAMPUS, or a designee, determines that
the corrective action has eliminated the minor violations, the provider
will be advised that the institution is restored to full status as
an authorized CHAMPUS provider as of 12:01 a.m. on the day written
notice of correction was received by the Director, OCHAMPUS, or
a designee, or the day on which acceptable corrective action was
completed in the judgment of the Director, OCHAMPUS, or a designee.
Any beneficiary admitted to the institution prior to the grace period
will be notified by the Director, OCHAMPUS, or a designee, of the
corrective action and that the provider continues to be an authorized
CHAMPUS provider. CHAMPUS cost-sharing for any beneficiary admitted
to the institution during the grace period shall be allowed only
for care received after 12:01 a.m. on the day written notice of
correction was received by the Director, OCHAMPUS, or a designee,
or the day on which acceptable corrective action was completed in
the judgment of the Director, OCHAMPUS, or a designee.
(4) If the institution has failed to give
notification in writing before the end of the grace period that corrective
action has been completed or, in the judgment of the Director, OCHAMPUS,
or a designee, the institution has not completed acceptable corrective
action during the grace period, the Director, OCHAMPUS, or a designee,
may initiate action to terminate the provider as an authorized CHAMPUS provider.
(B) Major violations.
If the Director,
OCHAMPUS, or a designee, determines that an institution is in violation
of standards detrimental to life, safety, or health, or substantially
in violation of approved treatment programs, immediate action shall
be taken to terminate the institution as an authorized CHAMPUS provider.
The institution shall be notified by telegram, certified mail, or
express mail of the termination under this subparagraph, effective
on receipt of the notice. The notice shall include a brief statement
of the nature of violations resulting in the termination and advise
the institution that an initial determination formalizing the administrative
action of termination will be issued pursuant to paragraph (h)(3)(ii)
of this section within 15 days.
(3) Beneficiary sanctions.
(i) With
entitlement to CHAMPUS benefits based on public law, an eligible beneficiary
will not be suspended or excluded from CHAMPUS. However, the Director,
OCHAMPUS, or a designee, may take action deemed appropriate and
reasonable to protect the Government from those beneficiaries (including
sponsors, parents, guardians, or representatives of beneficiaries)
who have submitted false claims.
(ii) Pursuant to Sec.
199.11 of this part, the Director, OCHAMPUS, or a designee, may
recover erroneous payments on claims involving fraud or false or
misleading statements. Remedies for recovery of the erroneous payments
include the use of offset against future CHAMPUS payments.
(iii) Under
policies adopted by the Director, OCHAMPUS, or a designee, individuals
who, based on reliable information, have previously submitted fraudulent
or false CHAMPUS claims, may be required to comply with any procedures
(e.g., partial or total pre-payment audit or review, restriction
to a designated primary care provider, etc.) which the Director,
OCHAMPUS, or a designee, deems appropriate to ensure that their
future medical care and CHAMPUS claims (including the medical care and
CHAMPUS claims submitted by or for members of their family) are
valid.
(g) Period of exclusion,
suspension, or termination--
(1) Exclusions or suspensions.
Except as otherwise required
by paragraph (g)(1)(i) of this section, the Director, OCHAMPUS,
or a designee, shall determine the period of exclusion or suspension
for a provider using the factors set forth in paragraph (g)(1)(ii)
of this section.
(i) Exclusion or suspension of a provider based
on the provider’s exclusion or suspension by another agency of the
Federal Government, a state, or a local licensing authority.
If the administrative
action under CHAMPUS is based solely on the provider’s exclusion
or suspension by another agency, state, or local licensing authority,
the period of exclusion or suspension under CHAMPUS shall be for
the same length of time of exclusion or suspension imposed by the
other agency, state, or local licensing authority. The provider
may request reinstatement as an authorized CHAMPUS provider if reinstatement
is achieved under the other program prior to the end of the period
of exclusion or suspension. If the administrative action under CHAMPUS
is not based solely on the provider’s exclusion or
suspension by another agency, state, or local licensing authority,
the minimum period of exclusion or suspension shall be for the same
period of exclusion or suspension imposed by the other agency, state, or
local licensing authority.
(ii) Factors to be
considered in determining the period of exclusion or suspension
of providers under CHAMPUS.
In determining the period of exclusion or
suspension of a provider, the Director, OCHAMPUS, or a designee,
may consider any or all of the following:
(A) When
the case concerns all or any part of the same issues which have
been the subject of criminal conviction or civil judgment involving
fraud by a provider:
(1) The period(s)
of sentence, probation, and other sanction imposed by court order
against the provider may be presumed reasonable and adopted as the
administrative period of exclusion or suspension under CHAMPUS,
unless aggravating or mitigating factors exist.
(2) If any aggravating factors exist, then
cause exists for the Director, OCHAMPUS, or a designee, to consider
the factors set forth in paragraph (g)(1)(ii)(B) of this section,
in imposing a period of administrative exclusion or suspension in
excess of the period(s) of sentence, probation, and/or other sanctions
imposed by court order. Examples of aggravating factors include,
but are not limited to:
(i) An administrative
determination by the Director, OCHAMPUS, or a designee, that the
basis for administrative exclusion or suspension includes an act(s)
of fraud or abuse under CHAMPUS in addition to, or unrelated to,
an act(s) of fraud included in the court conviction or civil judgment.
(ii) The fraudulent act(s) involved in the
criminal conviction or civil judgment, or similar acts, were committed
over a significant period of time; that is, one year or more.
(iii) The act(s) of fraud or abuse had an adverse
physical, mental, or financial impact on one or more CHAMPUS beneficiaries.
(iv) The loss or potential loss to CHAMPUS
is over $5,000. The entire amount of loss or potential loss to CHAMPUS
due to acts of fraud and abuse will be considered, in addition to
the amount of loss involved in the court conviction or civil judgment,
regardless of whether full or partial restitution has been made
to CHAMPUS.
(v) The provider
has a prior court record, criminal or civil, or administrative record
or finding of fraud or abuse.
(3) If any mitigating factors exist, then
cause may exist for the Director, OCHAMPUS, or a designee, to reduce
a period of administrative exclusion or suspension from any period(s)
imposed by court conviction or civil judgment. Only the existence
of either of the following two factors may be considered in mitigation:
(i) The criminal conviction or civil judgment
only involved three or fewer misdemeanor offenses, and the total
of the estimated losses incurred (including any loss from act(s)
not involved in the conviction or judgment) is less than $1,000,
regardless of whether full or partial restitution has been made.
(ii) The criminal or civil court proceedings
establish that the provider had a mental, emotional or physical
condition, prior to or contemporaneous with the commission of the
act(s), that reduced the provider’s criminal or civil culpability.
(B) The
Director, OCHAMPUS, or a designee, may consider the following factors
in determining a reasonable period of exclusion or suspension of
a provider under CHAMPUS:
(1) The nature
of the claims and the circumstances under which they were presented;
(2) The degree of culpability;
(3) History of prior offenses (including whether
claims were submitted while the provider was either excluded or
suspended pursuant to prior administrative action);
(4) Number of claims involved;
(5) Dollar amount of claims involved;
(6) Whether, if a crime was involved, it was
a felony or misdemeanor;
(7) If patients
were injured financially, mentally, or physically; the number of
patients; and the seriousness of the injury(ies);
(8) The previous record of the provider under
CHAMPUS;
(9) Whether restitution
has been made or arrangements for repayment accepted by the Government;
(10) Whether the provider has resolved the
conflict of interest situations or implemented procedures acceptable
to the Director, OCHAMPUS, or a designee, which will prevent conflict
of interest in the future; and,
(11) Such other
factors as may be deemed appropriate.
(2) Terminations.
When a provider’s
status as an authorized CHAMPUS provider is ended, other than through
exclusion or suspension, the termination is based on a finding that
the provider does not meet the qualifications to be an authorized
provider, as set forth in this part. Therefore, the period of termination
in all cases will be indefinite and will end only after the provider
has successfully met the established qualifications for authorized
provider status under CHAMPUS and has been reinstated under CHAMPUS.
Except as otherwise provided in this subparagraph, the following
guidelines control the termination of authorized CHAMPUS provider
status for a provider whose license to practice (or, in the case
of an institutional provider, to operate) has been temporarily or
permanently suspended or revoked by the jurisdiction issuing the
license.
(i) Termination of
the provider under CHAMPUS shall continue even if the provider obtains
a license to practice in a second jurisdiction during the period
of suspension or revocation of the provider’s license by the original
licensing jurisdiction. A provider who has licenses to practice
in two or more jurisdictions and has one or more license(s) suspended
or revoked will also be terminated as a CHAMPUS provider.
(A) Professional
providers shall remain terminated from the CHAMPUS until the jurisdiction(s) suspending
or revoking the provider’s license(s) to practice restores it or
removes the impediment to restoration.
(B) Institutional
providers shall remain terminated under CHAMPUS until their license
is restored. In the event the facility is sold, transferred, or
reorganized as a new legal entity, and a license issued under a
new name or to a different legal entity, the new entity must submit
an application to be an authorized CHAMPUS provider.
(ii) If
the CHAMPUS provider status is terminated due to the loss of the
provider’s license, the effective date shall be retroactive to the
date the provider lost the license; however, in the case of a professional
provider who has licenses in two or more jurisdictions and submitted
claims from a jurisdiction from which he/she had a valid license,
the effective date of the termination will be 15 calendar days from
the date of the written initial determination of termination for
purposes of claims from the jurisdiction in which the provider still
has a valid license.
(h) Procedures for
initiating and implementing the administrative remedies--
(1) Temporary suspension
of claims processing.
(i) In general, temporary
suspension of claims processing may be invoked to protect the interests
of the Government for a period reasonably necessary to complete investigation
or appropriate criminal, civil, and administrative proceedings.
The temporary suspension only delays the ultimate payment of otherwise
appropriate claims. When claims processing involving a participating
provider is temporarily suspended, the participation agreement remains
in full force and the provider cannot repudiate the agreement because
of the delay in the final disposition of the claim(s). Once it has
been determined appropriate to end the temporary suspension of claims processing,
CHAMPUS claims which were the subject of the suspension and which
are otherwise determined to be in compliance with the requirements
of law and regulation, will be processed to completion and payment
unless such action is deemed inappropriate as a result of criminal,
civil, or administrative remedies ultimately invoked in the case.
(ii) When
adequate evidence exists to determine that a provider or beneficiary
is submitting fraudulent or false claims or claims involving practices
that may be fraud or abuse as defined by this part, the Director,
OCHAMPUS, or a designee, may suspend CHAMPUS claims processing (in
whole or in part) for claims submitted by the beneficiary or any
CHAMPUS claims involving care furnished by the provider. The temporary
suspension of claims processing for care furnished by a provider
may be invoked against all such claims, whether or not the claims
are submitted by the beneficiary or by the provider as a participating
CHAMPUS provider. In cases involving a provider, notice of the suspension
of claims processing may also be given to the beneficiary community
either directly or indirectly through notice to appropriate military
facilities, health benefit advisors, and the information or news
media.
(A) Adequate evidence is any information sufficient
to support the reasonable belief that a particular act or omission
has occurred.
(B) Indictment or any
other initiation of criminal charges, filing of a complaint for
civil fraud, issuance of an administrative complaint under the Program
Fraud Civil Remedies Act, or issuance of an initial determination
under this part for submitting fraudulent or false claims or claims
involving practices that may be fraud or abuse as defined by this
part, shall constitute adequate evidence for invoking temporary
suspension of claims processing.
(iii) The
Director, OCHAMPUS, or a designee, may suspend CHAMPUS claims processing
without first notifying the provider or beneficiary of the intent
to suspend payments. Following a decision to invoke a temporary
suspension, however, the Director, OCHAMPUS, or a designee, shall
issue written notice advising the provider or beneficiary that:
(A) A
temporary suspension of claims processing has been ordered and a
statement of the basis of the decision to suspend payment. Unless
the suspension is based on any of the actions set forth in paragraph
(h)(1)(ii)(B) of this section, the notice shall describe the suspected
acts or omissions in terms sufficient to place the provider or beneficiary
on notice without disclosing the Government’s evidence.
(B) Within
30 days (or, upon written request received by OCHAMPUS during the
30 days and for good cause shown, within 60 days) from the date
of the notice, the provider or beneficiary may:
(1) Submit to the Director, OCHAMPUS, or a
designee, in writing, information (including documentary evidence)
and argument in opposition to the suspension, provided the additional specific
information raises a genuine dispute over the material facts, or
(2) Submit a written request to present in
person evidence or argument to the Director, OCHAMPUS, or a designee.
All such presentations shall be made at the Office of Civilian Health
and Medical Program of the Uniformed Services (OCHAMPUS) in Aurora,
Colorado, at the provider’s or beneficiary’s own expense.
(C) Additional
proceedings to determine disputed material facts may be conducted
unless:
(1) The suspension is based on any of the
actions set forth in paragraph (h)(1)(ii)(B) of this section, or,
(2) A determination is made, on the basis
of the advice of the responsible Government official (e.g., an official
of the Department of Justice, the designated Reviewing Official
under the Program Fraud Civil Remedies Act, etc.), that the substantial
interests of the Government in pending or contemplated legal or
administrative proceedings based on the same facts as the suspension
would be prejudiced.
(iv) If
the beneficiary or provider submits, either in writing or in person,
additional information or argument in opposition to the suspension,
the Director, OCHAMPUS, or a designee, shall issue a suspending
official’s decision which modifies, terminates, or leaves in force
the suspension of claims processing. However, a decision to terminate
or modify the suspension shall be without prejudice to the subsequent
imposition of suspension of claims processing, imposition of sanctions
under this Sec. 199.9, the recovery of erroneous payments under
Sec. 199.11 of this part, or any other administrative or legal action
authorized by law or regulation. The suspending official’s decision
shall be in writing as follows:
(A) A written decision
based on all the information in the administrative record, including
any submission by the beneficiary or provider, shall be final in
a case:
(1) Based on any of the actions set forth
in paragraph (h)(1)(ii)(B) of this section,
(2) In which the beneficiary’s or provider’s
submission does not raise a genuine dispute over material facts,
or
(3) In which additional proceedings to determine
disputed material facts have been denied on the basis of advice
of a responsible Government official that the substantial interests
of the Government in pending or contemplated legal or administrative
proceedings would be prejudiced.
(B) In
a case in which additional proceedings are necessary as to disputed
material facts, the suspending official’s decision shall advise
the beneficiary or provider that the case has been referred for handling
as a hearing under Sec. 199.10 of this part.
(v) A
suspension of claims processing may be modified or terminated for
reasons such as:
(A) Newly discovered evidence;
(B) Elimination
of any of the causes for which the suspension was invoked; or
(C) Other
reasons the Director, OCHAMPUS, or a designee, deems appropriate.
(vi) A
suspension of claims processing shall be for a temporary period
pending the completion of investigation and any ensuing legal or
administrative proceedings, unless sooner terminated by the Director,
OCHAMPUS, or a designee, or as provided in this subparagraph.
(A) If
legal or administrative proceedings are not initiated within 12
months after the date of the suspension notice, the suspension shall
be terminated unless the Government official responsible for initiation
of the legal or administrative action requests its extension, in
which case it may be extended for an additional 6 months. In no
event may a suspension extend beyond 18 months, unless legal or administrative
proceedings have been initiated during that period.
(B) The
Director, OCHAMPUS, or a designee, shall notify the Government official
responsible for initiation of the legal or administrative action
of the proposed termination of the suspension, at least 30 days
before the 12-month period expires, to give the official an opportunity
to request an extension.
(2) Notice of proposed
administrative sanction.
A provider shall be notified in writing of
the proposed action to exclude, suspend, or terminate the provider’s
status as an authorized CHAMPUS provider.
(A) The
notice shall state which sanction will be taken and the effective
date of that sanction as determined in accordance with the provisions
of this part.
(B) The notice shall
inform the provider of the situation(s), circumstance(s), or action(s)
which form the basis for the proposed sanction and reference the
paragraph of this part under which the administrative action is
being taken.
(C) The notice will
be sent to the provider’s last known business or office address
(or home address if there is no known business address.)
(D) The
notice shall offer the provider an opportunity to respond within
30 days (or, upon written request received by OCHAMPUS during the
30 days and for good cause shown, within 60 days) from the date
on the notice with either:
(1) Documentary
evidence and written argument contesting the proposed action; or,
(2) A written request to present in person
evidence or argument to the Director, OCHAMPUS, or a designee. All
such presentations shall be made at the Office of the Civilian Health
and Medical Program of the Uniformed Services (OCHAMPUS) in Aurora,
Colorado, at the provider’s own expense.
(3) Initial determination.
(i) If,
after the provider has exhausted, or failed to comply with, the procedures
specified in paragraph (h)(2) of this section, the Director, OCHAMPUS,
or a designee, decides to invoke an administrative remedy of exclusion,
suspension, or termination of a provider under CHAMPUS, written
notice of the decision will be sent to the provider by certified
mail. Except in those cases where the sanction has a retroactive
effective date, the written notice shall be dated no later than
15 days before the decision becomes effective. For terminations
under paragraph (f)(2)(ii)(B) of this section, the initial determination
may be issued without first implementing or exhausting the procedures
specified in paragraph (h)(2) of this section.
(ii) The
initial determination shall include:
(A) A statement of
the sanction being invoked;
(B) A statement of
the effective date of the sanction;
(C) A statement of
the facts, circumstances, or actions which form the basis for the
sanction and a discussion of any information submitted by the provider
relevant to the sanction;
(D) A statement of
the factors considered in determining the period of sanction;
(E) The
earliest date on which a request for reinstatement under CHAMPUS
will be accepted;
(F) The requirements
and procedures for reinstatement; and,
(G) Notice
of the available hearing upon request of the sanctioned provider.
(4) Reinstatement
procedures--
(i) Restitution.
(A) There
is no entitlement under CHAMPUS for payment (cost-sharing) of any
claim that involves either criminal or civil fraud as defined by
law, or fraud or abuse or conflict of interest as defined by this
part. In addition, except as specifically provided in this part,
there is no entitlement under CHAMPUS for payment (cost-sharing)
of any claim for services or supplies furnished by a provider who
does not meet the requirements to be an authorized CHAMPUS provider.
In any of the situations described above, CHAMPUS payment shall
be denied whether the claim is submitted by the provider as a participating
claim or by the beneficiary for reimbursement. If an erroneous payment
has been issued in any such case, collection of the payment will
be processed under Sec. 199.11 of this part.
(B) If
the Government has made erroneous payments to a provider because
of claims involving fraud, abuse, or conflicts of interest, restitution
of the erroneous payments shall be made before a request for reinstatement
as a CHAMPUS authorized provider will be considered. Without restitution
or resolution of the debt under Sec. 199.11 of this part, a provider
shall not be reinstated as an authorized CHAMPUS provider. This
is not an appealable issue under Sec. 199.10 of this part.
(C) For
purposes of authorization as a CHAMPUS provider, a provider who
is excluded or suspended under this Sec. 199.9 and who submits participating
claims for services furnished on or after the effective date of
the exclusion or suspension is considered to have forfeited or waived
any right or entitlement to bill the beneficiary for the care involved
in the claims. Similarly, because a provider is expected to know
the CHAMPUS requirements for qualification as an authorized provider,
any participating provider who fails to meet the qualification requirements
for CHAMPUS is considered to have forfeited or waived any right
or entitlement to bill the beneficiary for the care involved in
the CHAMPUS claims. If, in either situation, the provider bills
the beneficiary, restitution to the beneficiary may be required
by the Director, OCHAMPUS, or a designee, as a condition for consideration
of reinstatement as a CHAMPUS authorized provider.
(ii) Terminated providers.
A terminated
provider who subsequently achieves the minimum qualifications to
be an authorized CHAMPUS provider or who has had his/her license
reinstated or the impediment to reinstatement removed by the appropriate
licensing jurisdiction may submit a written request for reinstatement
under CHAMPUS to the Director, OCHAMPUS, or a designee. If restitution
or proper reinstatement of license is not at issue, the Director,
OCHAMPUS, or a designee, will process the request for reinstatement
under the procedures established for initial requests for authorized CHAMPUS
provider status.
(iii) Providers (other
than entities) excluded or suspended under CHAMPUS.
(A) A
provider excluded or suspended from CHAMPUS (other than an entity
excluded under Sec. 199.9(f)(1)(i)) may seek reinstatement by submitting
a written request to the Director, OCHAMPUS, or a designee, any
time after the date specified in the notice of exclusion or suspension
or any earlier date specified in an appeal decision issued in the
provider’s appeal under Sec. 199.10 of this part. The request for reinstatement
shall include:
(1) Documentation sufficient to establish
the provider’s qualifications under this part to be a CHAMPUS authorized
provider;
(2) A statement
from the provider setting forth the reasons why the provider should
be reinstated, accompanied by written statements from professional
associates, peer review bodies, and/or probation officers (if appropriate),
attesting to their belief that the violations that led to exclusion
or suspension will not be repeated.
(B) A
provider entity excluded from CHAMPUS under Sec. 199.9(f)(1)(i)
may seek reinstatement by submitting a written request to the Director,
OCHAMPUS, or a designee, with documentation sufficient to establish
the provider’s qualifications under this part to be a CHAMPUS authorized
provider and either:
(1) Documentation
showing the CHAMPUS reinstatement of the excluded individual provider
whose conviction led to the CHAMPUS exclusion or suspension of the
provider entity; or
(2) Documentation
acceptable to the Director, OCHAMPUS, or a designee, that shows
that the individual whose conviction led to the entity’s exclusion:
(i) Has reduced his or her ownership or control
interest in the entity below 5 percent; or
(ii) Is no longer an officer, director, agent
or managing employee of the entity; or
(iii) Continues to maintain a 5 percent or more
ownership or control interest in such entity, and that the entity
due to circumstances beyond its control, is unable to obtain a divestiture.
Note: Under paragraph (h)(4)(iii)(B)(2)
of this section, the request for reinstatement may be submitted any
time prior to the date specified in the notice of exclusion or suspension
or an earlier date specified in the appeal decision issued under
Sec. 199.10 of this part.
(iv) Action on request
for reinstatement.
In order to reinstate a provider as a CHAMPUS
authorized provider, the Director, OCHAMPUS, or a designee, must
determine that:
(A) The provider meets
all requirements under this part to be an authorized CHAMPUS provider;
(B) No
additional criminal, civil, or administrative action has been taken
or is being considered which could subject the provider to exclusion,
suspension, or termination under this section;
(C) In
the case of a provider entity, verification has been made of the
divestiture or termination of the owner, controlling party, officer,
director, agent or managing employee whose conviction led to the entity’s
exclusion, or that the provider entity should be
reinstated because the entity, due to circumstances beyond its control,
cannot obtain a divestiture of the 5 percent or more ownership or controlling
interest by the convicted party.
(v) Notice of action
on request for reinstatement--
(A) Notice of approval
of request. If the Director, OCHAMPUS, or a designee, approves the
request for reinstatement, he or she will:
(1) Give written
notice to the sanctioned party specifying the date when the authorized
provider status under CHAMPUS may resume; and
(2) Give notice to those agencies and groups
that were originally notified, in accordance with Sec. 199.9(k),
of the imposition of the sanction. General notice may also be given
to beneficiaries and other parties as deemed appropriate by the
Director, OCHAMPUS, or a designee.
(B) Notice of denial
of request.
If
the Director, OCHAMPUS, or a designee, does not approve the request
for reinstatement, written notice will be given to the provider.
If established procedures for processing initial requests for authorized
provider status are used to review the request for reinstatement,
the established procedures may be used to provide the notice that
the provider does not meet requirements of this part for such status.
If the provider continues to be excluded, suspended, or terminated
under the provisions of this section, the procedures set forth in
this paragraph (h) may be followed in denying the provider’s request
for reinstatement.
(5) Reversed or vacated
convictions or civil judgments involving CHAMPUS fraud.
(i) If
a CHAMPUS provider is excluded or suspended solely on
the basis of a criminal conviction or civil judgment involving a
CHAMPUS fraud and the conviction or judgment is reversed or vacated
on appeal, CHAMPUS will void the exclusion of a provider. Such action
will not preclude the initiation of additional independent administrative
action under this section or any other administrative remedy based
on the same facts or events which were the subject of the criminal
conviction or civil judgment.
(ii) If an exclusion
is voided under paragraph (h)(5)(i) of this section, CHAMPUS will
make payment, either to the provider or the beneficiary (if the
claim was not a participating claim) for otherwise authorized services
under CHAMPUS that are furnished or performed during the period
of exclusion.
(iii) CHAMPUS will
also void the exclusion of any entity that was excluded under Sec.
199.9(f)(1)(i) based solely on an individual’s conviction that has
been reversed or vacated on appeal.
(iv) When CHAMPUS voids
the exclusion of a provider or an entity, notice will be given to
the agencies and others that were originally notified, in accordance
with Sec. 199.9(k).
(i) Evidence required
for determinations to invoke administrative remedies--
(1) General.
Any relevant
evidence may be used by the Director, OCHAMPUS, or a designee, if
it is the type of evidence on which reasonable persons are accustomed
to rely in the conduct of serious affairs, regardless of the existence
of any common law or statutory rule that might make improper the
admission of such evidence over objection in civil or criminal courts.
(2) Types of evidence.
The types of
evidence which the Director, OCHAMPUS, or a designee, may rely on
in reaching a determination to invoke administrative remedies under
this section include but are not limited to the following:
(i) Results
of audits conducted by or on behalf of the Government. Such audits
can include the results of 100 percent review of claims and related
records or a statistically valid sample audit of the claims or records.
A statistical sampling shall constitute prima facie evidence of
the number and amount of claims and the instances of fraud, abuse,
or conflict of interest.
(ii) Reports, including
sanction reports, from various sources including a peer review organization (PRO)
for the area served by the provider; state or local licensing or
certification authorities; peer or medical review consultants of
the Government, including consultants for Government contractors; state
or local professional societies; or other sources deemed appropriate
by the Director, OCHAMPUS, or a designee.
(iii) Orders
or documents issued by Federal, state, foreign, or other courts
of competent jurisdiction which issue findings and/or criminal convictions
or civil judgments involving the provider, and administrative rulings,
findings, or determinations by any agency of the Federal Government,
a state, or local licensing or certification authority regarding
the provider’s status with that agency or authority.
(j) Suspending Administrative
Action.
(1) All or any administrative action may be suspended
by the Director, OCHAMPUS, or a designee, pending action in the
case by the Department of Defense--Inspector General, Defense Criminal
Investigative Service, or the Department of Justice (including the responsible
United States Attorney). However, action by the Department of Defense--Inspector
General or the Department of Justice, including investigation, criminal
prosecution, or civil litigation, does not preclude administrative
action by OCHAMPUS.
(2) The normal OCHAMPUS
procedure is to suspend action on the administrative process pending an
investigation by the Department of Defense--Inspector General or
final disposition by the Department of Justice.
(3) Though
OCHAMPUS administrative action is taken independently of any action
by the Department of Defense-Inspector General or by the Department
of Justice, once a case is forwarded to the Department of Defense-Inspector
General or the Department of Justice for legal action (criminal
or civil), administrative action may be held in abeyance.
(4) In
some instances there may be dual jurisdiction between agencies;
as in, for example, the joint regulations issued by the Department
of Justice and the Government Accounting Office regarding debt collection.
(k) Notice to Other
Agencies.
(1) When CHAMPUS excludes, suspends, or terminates
a provider, the Director, OCHAMPUS, or a designee, will notify other
appropriate agencies (for example, the Department of Health and
Human Services and the state licensing agency that issued the provider’s license
to practice) that the individual has been excluded, suspended, or
terminated as an authorized provider under CHAMPUS. An exclusion,
suspension, or termination action is considered a public record.
Such notice can include the notices and determinations sent to the
suspended provider and other public documents such as testimony
given at a hearing or exhibits or depositions given in a lawsuit
or hearing. Notice may also be given to Uniformed Services Military
Treatment Facilities, Health Benefit Advisors, beneficiaries and
sponsors, the news media, and institutional providers if inpatient care
was involved.
(2) If CHAMPUS has
temporarily suspended claims processing, notice of such action normally
will be given to the affected provider and Uniformed Services Medical
Treatment Facilities, Health Benefits Advisors, beneficiaries, and
sponsors. Notice may also be given to any information or news media
and any other individual, professional provider, or institutional
provider, as deemed appropriate. However, since a “temporary suspension
of claims processing” is by definition not a final or formal agency
action, the basis for the action generally will not be disclosed.
It is noted that the basis for the action can be a result of questions
arising from routine audits to investigation of possible criminal
violations.
(l) Compromise, Settlement,
and Resolution Authority.
(1) In lieu of invoking
any remedy provided by this Section, the Director, OCHAMPUS, or
a designee, may elect to enter into an agreement with the provider
intended to correct the situation within an established time period
and subject to any remedies deemed appropriate by the Director,
OCHAMPUS, or a designee.
(2) When it is in the
best interest of CHAMPUS, the Director, OCHAMPUS, has the discretionary authority
to waive an action or enter into compromise or settlement of administrative
actions taken under this Sec. 199.9.
(m) Government-wide
effect of exclusion or suspension from CHAMPUS.
As provided by section 2455
of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355,
October 13 1994, and Executive Order 12549, “Debarment and Suspension
from Federal Financial and Nonfinancial Assistance Programs,” February
18, 1986, any health care provider excluded or suspended from CHAMPUS
under this section shall, as a general rule, also be debarred, suspended,
or otherwise excluded from all other programs and activities involving
Federal financial assistance. Among the other programs for which
this debarment, suspension, or exclusion shall operate are the Medicare
and Medicaid programs. This debarment, suspension, or termination
requirement is subject to limited exceptions in the regulations
governing the respective Federal programs affected. (Note: Other regulations
related to this government-wide exclusion or suspension authority
are 32 CFR Part 25 and 45 CFR Part 76.)
(n) Third-party billing agents as defined in
Sec. 199.2(b) of this part, while not considered providers, are
subject to the provisions of this section to the same extent as
such provisions apply to providers.
[54 FR 25246, Jun 14, 1989, as amended at
63 FR 48445, Sep 10, 1998; 78 FR 12954, Feb 26, 2013;
85 FR 60705, Sep 28, 2020]