(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]