| (a) The OIG may take administrative enforcement measures
against a person or an affiliate of a person based upon an investigation
or finding, including an audit finding, in the Medicaid or other HHS
programs. Administrative enforcement measures may include:
(1) making referrals for further investigation or action;
(2) taking an administrative action;
(3) imposing a sanction;
(4) assessing damages, penalties, costs related to
an administrative appeal, and investigative and administrative costs;
or
(5) denying the enrollment of a person for participation
in the Medicaid program.
(b) When the OIG receives information regarding a possible
program violation or possible fraud, abuse, overpayment, or waste,
the OIG conducts an investigation pursuant to Subchapter F of this
chapter (relating to Investigations). If, at any point during its
investigation, the OIG determines that an overpayment resulted without
wrongdoing, the OIG may refer the matter for routine payment correction
by the agency's fiscal agent or an operating agency or may offer a
payment plan.
(c) At the OIG's sole discretion, overpayments may
be collected in a lump sum or through installments. A person may request
to pay through installments, but the OIG has sole discretion whether
to grant the request. The OIG determines a reasonable length of time
for an installment agreement based on the circumstances of each individual
case. Installment agreements may include provisions for the assessment
of interest, administrative penalties, or both.
(d) Nothing in these rules is intended to prevent concurrent
administrative, civil, or criminal investigation and action. Subject
to express statutory limitations, the OIG may proceed with recoupment
or other administrative enforcement concurrently with judicial prosecution
of the same matter.
(e) An OIG case remains open until:
(1) the investigation is complete;
(2) the case is settled;
(3) the OIG makes an administrative determination that
closes the case for lack of evidence or appropriate administrative
enforcement; or
(4) all administrative remedies have been exhausted.
(f) Except as provided in other statute, rule, or regulation,
the OIG, when making a preliminary determination, will take into consideration
the following when determining the appropriate administrative action
or sanction, including the amount of any administrative damages and
penalties:
(1) the seriousness of the violation;
(2) the prevalence of errors by the person;
(3) the financial or other harm to the state or recipients
resulting or potentially resulting from those errors;
(4) whether the person had previously committed a violation;
(5) any mitigating factors; and
(6) in the event the OIG opts to pursue administrative
penalties, the amount of administrative penalty necessary to deter
the person from committing future violations.
(g) When determining the seriousness, prevalence of
error, harm, or potential harm of the violation, as described in subsection
(f) of this section, the OIG may consider multiple factors. These
factors may include:
(1) physical or emotional harm to one or more patients;
(2) one or more violations that involve more than one
patient;
(3) economic harm to any individual or entity;
(4) potential for harm to the public;
(5) attempted concealment of the act constituting a
violation;
(6) intentional, premeditated, knowing, or grossly
negligent act constituting a violation;
(7) prior similar violations;
(8) previous disciplinary action by a licensing board,
any government agency, peer review organization, or health care entity
for committing a violation or violations relevant to the violation
or violations under consideration by the OIG;
(9) violation of a licensing board or government agency
order concerning a violation or violations relevant to the violation
or violations under consideration by the OIG; or
(10) other circumstances relevant to the seriousness
of the misconduct.
(h) The following may be considered as mitigating factors
that warrant less severe or restrictive administrative action or sanction
by the OIG, as described in subsection (f) of this section. The person
seeking mitigation shall have the burden to present evidence regarding
any mitigating factors that may apply in any contested case. OIG may
consider any mitigating evidence the agency becomes aware of while
making a preliminary determination regarding an appropriate administrative
action or sanction. Once the OIG issues a notice that the agency intends
to impose a sanction upon a person, including a preliminary penalty
report, then the person subject to that notice or preliminary report
shall provide any mitigating evidence that the person wishes the OIG
to consider to the OIG before any scheduled informal resolution meeting
or informal review. Mitigating factors may include:
(1) self-reported and voluntary admissions of a violation
or violations;
(2) implementation of remedial measures to correct
or mitigate harm from the violation or violations, such as:
(A) the extent and expeditious initiation of the person's
own investigation;
(B) resources that the person committed to correcting
or mitigating the problem;
(C) disciplinary action or actions that the person
has taken against the individuals responsible for the problem; and
(D) institutional change or changes made by the person
in order to ensure compliance and prevent future violations;
(3) acknowledgment of wrongdoing and willingness to
cooperate with the OIG, such as by acceptance of a settlement agreement;
(4) rehabilitative potential;
(5) prior community service and present value to the
community;
(6) other relevant circumstances reducing the seriousness
of the misconduct; or
(7) other relevant circumstances lessening responsibility
for the misconduct.
(i) This rule shall not be construed to deny any person
potentially subject to an administrative sanction imposed by the OIG,
including administrative damages or penalties, the right to introduce
mitigating evidence in a contested case proceeding. This rule also
shall not be construed to deny the OIG the right to introduce any
evidence supporting any of the factors described above in a contested
case proceeding in which the agency seeks to impose an administrative
sanction, including administrative damages or penalties, upon a person.
|
| Source Note: The provisions of this §371.1603 adopted to be effective October 14, 2012, 37 TexReg 7989; amended to be effective April 15, 2014, 39 TexReg 2833; amended to be effective May 1, 2016, 41 TexReg 2941; amended to be effective May 20, 2020, 45 Texreg 3259 |
