SECTION 317:35-13-7. Program Abuse and Administrative Sanctions

(a)   Definitions. The following words and terms, when used in this Section, shall have the following meaning, unless the context clearly indicates otherwise.

(1)   "Abuse" means member actions that defraud the Oklahoma Health Care Authority (OHCA), cause unnecessary medical expenses to the program or over-utilize services provided by the OHCA. It shall also mean causing unnecessary or excessive claims to be submitted to the OHCA.

(2)   "Conviction" or "Convicted" means a judgment of conviction has been entered by a Federal, State or local court, regardless of whether an appeal from that judgment is pending.

(3)   "Exclusion" means not being able to be certified for Medicaid benefits under the State Plan or Waivered services in Oklahoma.

(4)   "Fraud" means an intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself or some other person. It includes any act that constitutes fraud under applicable Federal or State law.

(5)   "Knowingly" means that a person, with respect to information:

(A)   has actual knowledge of the information;

(B)   acts in deliberate ignorance of the truth or falsity of the information; or

(C)   acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.

(6)   "Medical Services Providers" means:

(A)   "Practitioner" means a physician or other individual licensed under State law to practice his or her profession or a physician who meets all requirements for employment by the Federal Government as a physician and is employed by the Federal Government in an IHS facility or affiliated with a 638 Tribal facility.

(B)   "Supplier" means an individual or entity, other than a provider or practitioner, who furnishes health care services under Medicaid or other medical services programs administered by the OHCA.

(C)   "Provider" means:

(i)   a hospital, skilled nursing facility, comprehensive outpatient rehabilitation facility, home health agency, or a hospice that has in effect an agreement to participate in Medicaid, or any other medical services program administered by the OHCA, or

(ii)   a clinic, a rehabilitation agency, or a public health agency that has a similar agreement.

(D)   "Laboratories" means any laboratory or place equipped for experimental study in science or for testing or analysis which has an agreement with the OHCA to receive Medicaid monies.

(E)   "Pharmacy" means any pharmacy or place where medicines are compounded or dispensed or any pharmacist who has an agreement with OHCA to receive Medicaid monies for the dispensing of drugs.

(F)   "Any other provider" means any provider who has an agreement with OHCA to deliver health services, medicines, or medical services for the receipt of Medicaid monies.

(7)   "OIG" means the Office of Inspector General of the Department of Health and Human Services.

(8)   "Member" means a beneficiary, patient or person served by the OHCA.

(9)   "Sanctions" means any administrative decision by OHCA to suspend or exclude a member from the ability to be certified for medical assistance. A sanction may include a decision to use the remedy provided in OAC 317:30-3-14(b) or to require payment by the member of the service.

(10)   "Suspension" means an administrative action to suspend temporarily the certification of a case for medical assistance.

(11)   "Willfully" means proceeding from a conscious motion of the will; voluntary, intending the result which comes to pass; intentional.

(b)   Basis for sanctions.

(1)   The OHCA may sanction a member who has or has had a certified medical assistance case with OHCA for the following reasons:

(A)   Knowingly or willfully made, or causing to be made, any false statement or misrepresentation of material fact to get a case certified or causing services to be rendered to the member;

(B)   Caused or ordered services under Medicaid that are substantially in excess of the member's needs or that fail to meet professionally recognized standards for health care;

(C)   Submitted or caused to be submitted to the Medicaid program, bills or requests for payment containing charges or costs that are substantially in excess of customary charges or costs; or

(D)   Threatened harm to medical providers or state officials.

(2)   The agency may base its determination that services are excessive or unnecessary based upon reports, including sanction reports, from any of the following sources:

(A)   The PRO for the area served by the provider or the PRO contracted by OHCA;

(B)   State or local law enforcement agencies and licensing or certification authorities;

(C)   Peer review committees of fiscal agents or contractors;

(D)   State or local professional societies;

(E)   Surveillance and Utilization Review Section Reports done by OHCA;

(F)   Medicaid Fraud Control Unit;

(G)   Other sources, including internal investigations, deemed appropriate by the Medicaid agency or the OIG.

(3)   OHCA must suspend from the Medicaid program any member who has been suspended from participation in Medicare or Medicaid due to a conviction of a program related crime. This suspension must be at a minimum, the same period as the Medicare suspension.

(c)   Procedures for imposing sanctions.

(1)   Notice of proposed administrative sanction.

(A)   If the OHCA proposes to sanction, it will send the member a written notice stating:

(i)   the reasons for the proposed sanction;

(ii)   the date upon which the sanction will be effective;

(iii)   the result of the sanction should it be imposed; and

(iv)   a statement that the member has a right to an evidentiary hearing prior to the imposition of the sanction.

(B)   A copy of this section of the rules will be attached to the letter of proposed action.

(2)   Notice of sanction.

(A)   After an evidentiary hearing is conducted under OAC 317:2-1-2, the Agency will make a final administrative decision regarding the decision to sanction.

(B)   Based upon its final decision, the Agency shall send a notice to the member that provides:

(i)   the reasons for the decision;

(ii)   the effective date of the sanction;

(iii)   the effect of the sanction on the party's participation in the Medicaid program;

(iv)   the member's right to request a reconsideration of the Agency's final decision;

(v)   the earliest date in which the Agency will accept a request for reinstatement;

(vi)   the requirements and procedures for reinstatement; and

(vii)   instructions on how to ask for reconsideration.

(d)   Effect of sanction. OHCA will advise its eligibility agent of the closure or suspension of the case and when the member can be recertified. The sanctions are as follows:

(1)   For the first violation in which the agency finds a member has abused SoonerCare benefits or SoonerCare waiver benefits, the member's eligibility may be suspended for a period of up to 6 months.

(2)   For the second violation in which the agency finds a member has abused SoonerCare benefits or SoonerCare waiver benefits, the member's eligibility may be suspended for a period of up to 12 months.

(3)   For the third violation in which the agency finds a member has abused SoonerCare benefits or SoonerCare waiver benefits, the member's eligibility may be suspended indefinitely.

(4)   All members' sanctions, including the length of the penalty period, are subject to administrative due process as described in this section.

(e)   Criteria for reinstatement.

(1)   Upon the request for reinstatement made by the member, OHCA may consider the following factors to reinstate the member;

(A)   The number and nature of the program violations and other related offenses.

(B)   The nature and extent of any adverse impact the violations have had on providers or other members;

(C)   The amount of any damages;

(D)   Any mitigating circumstances;

(E)   Other facts bearing on the nature and seriousness of the program violations and related offenses;

(F)   Convictions in a federal, state, or local court of other offenses related to participation in the Medicare or Medicaid program which were not considered during the development of the exclusion; and

(G)   Whether the state or local licensing authorities have taken any adverse action against the party for offenses related to participation in the Medicare or Medicaid program which were not considered during the development of the exclusion.

(2)   Regardless of the applicability of one or many of the factors in paragraph (1) of this subsection, reinstatement shall not be granted unless it is reasonably certain that the violation(s) that led to the exclusion will not be repeated.

[Source: Added at 20 Ok Reg 2797, eff 5-26-03 (emergency); Added at 21 Ok Reg 1324, eff 5-27-04; Amended at 29 Ok Reg 1169, eff 6-25-12]