| (a) A felony or misdemeanor conviction, as defined
in 42 C.F.R. §1001.2, under Texas law, the laws of another state,
or federal law, may affect a provider’s and/or person’s
ability to participate.
(b) The OIG may recommend denial of an enrollment application
of the applicant or a person required to be disclosed in accordance
with §371.1005 of this subchapter (relating to Disclosure Requirements)
on the basis of information revealed through a background check on
the applicant, provider, or a person required to be disclosed. A background
check may include:
(1) information concerning the licensing status of
the health care professional;
(2) information contained in the criminal history record
information check performed in accordance with Texas Government Code §531.1032;
(3) a review of federal databases;
(4) the pendency of an open investigation by the OIG;
and
(5) any other reason that the OIG determines appropriate.
(c) On a case-by-case basis, the OIG may recommend
approval of an enrollment application despite the existence of a criminal
history.
(1) When evaluating criminal history record information,
the OIG takes into consideration:
(A) the extent to which the conduct relates to the
services provided or to be provided under Medicaid;
(B) the degree to which the provider, applicant, or
person required to be disclosed does or will interact with Medicaid
recipients as a provider; and
(C) any previous evidence that the provider, applicant,
or person required to be disclosed engaged in fraud, waste, or abuse
under Medicaid.
(2) The OIG also considers the following circumstances:
(A) the number of criminal convictions as defined in
42 C.F.R. §1001.2;
(B) the nature and seriousness of the crime;
(C) whether the individual or entity has completed
the sentence, punishment, or other requirements that were imposed
for the crime and, if so, the length of time since completion;
(D) in the case of an individual, the age of the individual
at the time the crime was committed;
(E) whether the crime was committed in connection with
the individual's or entity's participation in Medicaid or other HHS
programs;
(F) the extent of the individual's or entity's rehabilitation
efforts and outcome;
(G) the conduct of the individual or entity, and the
work history of the individual, both before and after the crime;
(H) the relationship of the crime to the individual
or entity's fitness or capacity to remain a provider or become a provider;
(I) whether approving the individual or entity would
offer the individual or entity the opportunity to engage in further
criminal activity;
(J) the extent to which the individual or entity provides
relevant information or otherwise demonstrates that approval should
be granted; and
(K) any other circumstances that HHSC determines are
relevant to the individual or entity's eligibility.
(3) The provider is responsible for providing to HHSC
or to the OIG, within three business days of an IG request, information
related to the degree to which a person could interact with Medicaid
recipients as a provider.
(4) In all instances, the OIG takes into consideration
evidence of multiple or repeated instances of the same or similar
conduct.
(d) In addition to the considerations outlined in subsection
(c) of this section, the OIG specifically takes into consideration
the following conduct that may be contained in criminal history record
information of providers, applicants, or persons required to be disclosed:
(1) for provider types that have or may have direct
access to recipients in their capacity as a provider:
(A) conduct involving healthcare fraud;
(B) conduct involving abuse of patients, minors, the
elderly, or the disabled;
(C) conduct involving prohibited sexual conduct or
involving children as victims;
(D) conduct against the person such as homicide, kidnapping,
or assault;
(E) conduct involving perjury or crimes of other falsification,
such as tampering with physical evidence or governmental record;
(F) conduct involving insurance fraud;
(G) conduct involving illegal manufacture, use, possession
or distribution of controlled substances; and
(H) conduct involving theft, including theft by check;
(2) for provider types that may transport recipients
and guardians in their capacity as a provider:
(A) conduct involving healthcare fraud;
(B) conduct involving abuse of patients, minors, the
elderly, or the disabled;
(C) conduct involving prohibited sexual conduct or
involving children as victims;
(D) conduct against the person such as homicide, kidnapping,
or assault;
(E) conduct involving perjury or tampering with a governmental
record;
(F) conduct involving intoxication and operating a
motor vehicle, including driving while intoxicated, intoxication assault,
and intoxication manslaughter;
(G) conduct involving illegal manufacture, use, possession,
or distribution of controlled substances;
(H) conduct involving criminal trespass;
(I) conduct involving extortion; and
(J) conduct involving promotion of prostitution or
human trafficking;
(3) for provider types that may have interaction with
or access to recipients, recipients' homes, or recipients' property
in their capacity as a provider:
(A) conduct involving healthcare fraud;
(B) conduct involving abuse of patients, minors, the
elderly, or the disabled;
(C) conduct involving prohibited sexual conduct or
involving children as victims;
(D) conduct against the person such as homicide, kidnapping,
or assault;
(E) conduct against property such as theft, burglary,
property damage, or criminal trespass;
(F) conduct involving breach of fiduciary duty;
(G) conduct involving illegal manufacture, use, possession,
or distribution of controlled substances; and
(4) for provider types that have no recipient interaction
or access:
(A) conduct involving healthcare fraud;
(B) conduct involving breach of fiduciary duty or a
deceptive business practice; and
(C) conduct involving theft, including theft by check.
(e) The OIG may recommend permanent denial of an enrollment
application if:
(1) the applicant, provider, or a person required to
be disclosed has been convicted, as defined in 42 C.F.R. §1001.2,
of an offense arising from a fraudulent act under Medicaid or other
HHS programs; and
(2) that fraudulent act resulted in injury to an elderly
person, a person with a disability, or a person younger than 18 years
of age.
(f) The OIG may recommend denial of any enrollment
application, regardless of provider type, if it determines in its
discretion that the applicant may pose an increased risk for committing
fraud, waste, or abuse or may demonstrate unfitness to provide or
bill for medical assistance items or services. In addition to the
applicant's criminal, regulatory, and administrative sanction history,
the OIG considers all applicable circumstances, including the following,
if applicable:
(1) the applicant, a person required to be disclosed,
or a person with an ownership or control interest in the provider
did not submit complete, timely, and accurate information, failed
to cooperate with any provider screening methods, or refused to permit
access for a site visit;
(2) the applicant or a person required to be disclosed
has failed to repay overpayments to Medicaid, CHIP, or other HHS programs;
(3) the applicant, provider, or a person required to
be disclosed pursuant to §371.1005 of this subchapter, has been
suspended or prohibited from participating, excluded, terminated,
or debarred from participating in any state Medicaid, CHIP or other
HHS agency program;
(4) the applicant, provider, or a person required to
be disclosed has participated in Medicaid or CHIP program and failed
to bill for medical assistance or refer clients for medical assistance
within the 12-month period prior to submission of the enrollment application;
(5) the applicant, provider, or a person required to
be disclosed has falsified any information on the enrollment application;
and
(6) The OIG is unable to verify the identity of the
applicant, provider, or a person required to be disclosed.
(g) Healthcare professionals who are licensed and in
good standing with a Texas licensing authority that requires the submission
of fingerprints for the purpose of conducting a criminal history record
information check are not subject to an additional criminal history
record information check by the OIG for the purposes of determining
eligibility to enroll, unless performing a criminal history record
information check is required or appropriate for other reasons, including
for conducting an investigation of fraud, waste, or abuse or where
required by 42 C.F.R. §455.450.
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