(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]