471 Neb. Admin. Code, ch. 2, § 005

Current through September 17, 2024

Section 471-2-005 - ADMINISTRATIVE SANCTIONS

005.01 REASONS FOR SANCTIONS. The Department may, in its discretion, deny enrollment or sanction a provider for any of the following reasons:

(1) Improper billing and claims payment practices including, but not limited to:

(i) Presenting, or causing to be presented, any false or fraudulent claim for goods or services or merchandise for payment;

(ii) Submitting, or causing to be submitted, false information for the purpose of obtaining greater payment than that to which the provider is legally entitled;

(iii) Billing in excess of the usual and customary charges;

(iv) Presenting a claim, billing, or causing a claim to be presented for payment for services not rendered, including "no-shows";

(v) Submitting duplicate bills, including billing Medicaid twice for the same service, or billing both Medicaid and another insurer or government program;

(vi) Billing before the goods or services are provided or dispensed;

(vii) Billing for services provided by non-enrolled providers, certain sanctioned providers, or excluded persons;

(viii) Billing for services rendered by someone else as though the provider performed the services himself or herself;

(ix) Billing for services provided by an individual who is required to be licensed or certified and who did not meet that requirement when the service was provided;

(x) Billing for services provided outside the provider's scope of practice;

(xi) Upgrading services billed and rendered from those actually ordered; and

(xii) Upcoding services billed or billing a higher level of service than those actually provided;

(2) Altering medical records to obtain a higher classification of the client than is truly warranted;

(3) Submitting, or causing to be submitted, false information for the purpose of meeting prior authorization approval requirements, or obtaining payments for services rendered prior to the effective date of the service provider agreement or the date that the client has been determined to be Medicaid eligible;

(4) Failing to disclose or make available to the Department, or its authorized representatives, the following information:

(i) Records of services provided to Medicaid clients;

(ii) Records of payments by the Department, its agents, and others made for those services; and

(iii) Records that have been lost, misplaced, or destroyed prior to expiration of any applicable records retention period;

(5) Failing to provide and maintain quality, necessary, and appropriate services within accepted medical standards as determined by a body of peers, as documented by repeat deficiencies noted by the survey and certification agency, a peer review committee, medical review teams, or independent professional review teams, or by the determination of the Medicaid Director and consultants, or the Department or its designee, the Department's Quality Assurance Committee, any Department Inspection of Care, or a managed care plan's quality assurance committee;

(6) Breaching the terms of the Medicaid service provider agreement or submitting false or fraudulent application, including the service provider agreement and any necessary accompanying information, for participation as a Medicaid enrolled provider;

(7) Violating any provision of the Nebraska laws regarding Medicaid or any rule or regulation of Medicaid;

(8) Failing to comply with the terms of the provider certification on the Medicaid claim form as to the truth and accuracy of the information contained therein;

(9) Overutilization. A determination of overutilization may be based on a comparison of treatment practices of a specific provider compared to peers for similar types of clients;

(10) Underutilization;

(11) Rebating or accepting a fee or portion of a fee or charge for a Medicaid patient referral. Soliciting, offering, or receiving a kickback, bribe, or rebate;

(12) Violating any laws, regulations, or code of ethics governing the conduct of occupations or professions or regulated industries;

(13) Failing to meet any applicable licensure or certification standard required by state or federal law;

(14) Not accepting Medicaid as the payor of last resort, and billing Medicaid when the provider has, or reasonably should have had, knowledge of a liable third party;

(15) Not accepting Medicaid payment as payment in full for covered services, and collecting or attempting to collect additional payment from others, the client or responsible person, or collecting a portion of the service fee from the client or the client's family, except for required co-payments;

(16) Refusing to execute a new service provider agreement at the Department's request, failing to update a service provider agreement if required to do so by State or Federal law or failing to update service provider agreement information when changes have occurred;

(17) Failing to correct deficiencies in operations or improper billing practices after receiving written notice of these deficiencies or practices from the Department;

(18) Being formally reprimanded or censured by an association of the provider's peers for unethical practices;

(19) Being suspended, excluded, or terminated from participation in another governmental program, being convicted for civil or criminal violations of Medicaid, or any other state's Medicaid program; or having sanctions applied by the Department's agents or assignees or any other state's Medicaid program;

(20) Failing to repay or make arrangements for the repayment of overpayments or otherwise erroneous payments;

(21) Solicitation, borrowing, procuring, obtaining, accepting, stealing or otherwise appropriating any client's funds and personal property by any means;

(22) Any action resulting in a reduction or depletion of a nursing facility or intermediate care facility for individuals with developmental disabilities (ICF/DD) Medicaid client's personal allowance funds or reserve account unless specifically authorized in writing by the client, or legal representative;

(23) Reporting of unallowable cost items on a provider's cost report;

(24) Violating conditions of an exclusion;

(25) Violating conditions of probationary or restricted licensure;

(26) Not having the appropriate Drug Enforcement Administration (DEA) license or state drug license;

(27) Loss, restriction, or lack of hospital privileges;

(28) Failure or inability to provide and maintain quality, necessary and appropriate services due to physical or mental health conditions of the service provider;

(29) Endangering health and safety of clients;

(30) Failure to obtain or maintain required surety bond(s);

(31) Failure to provide the Department with documentation of authorization for third parties to submit claims for the provider for payment to the Department or failing to update this information when changes have occurred;

(32) Breaching the terms of a trading partner agreement to exchange information electronically;

(33) Disclosure of information that must be protected in accordance with 42 CFR Part 431, Subpart F;

(34) Misusing or failing to use electronic records and claims submission systems when required to do so by the Department.

(35) The provider does not meet the applicable provider standards for participation in Medicaid as listed in Titles 403, 404, 471, 480, and 482 NAC;

(36) The provider, owner of the provider, or an employee of the provider has been excluded, sanctioned, or terminated from participation by Medicare or Medicaid or Children's Health Insurance Program (CHIP) in any state;

(37) The provider is the respondent of a protection order;

(38) The provider, or household member(s) (if services are provided in the provider's home), is on the Adult Protective Services Central Registry, the Child Protective Services Central Registry, or the Sex Offender Registry; or

(39) The provider, or household member(s) (if services are provided in the provider's home), committed a crime:

(i) Against a child or vulnerable adult;

(ii) Of a nature, duration, or pattern that calls into question his or her regard for the law;

(iii) Involving the illegal use, possession, or distribution of a controlled substance; or

(iv) That, if repeated, could injure or harm the Medicaid program or a Medicaid client.

005.01(A)CRIMES. The Department deems a crime to have been committed when a conviction, admission, or substantial evidence of commission exists. In exercising its discretion, the Department considers the severity of the crime(s), the applicability of the crime(s) to the service(s) of the provider, the person's role within the provider entity, and the amount of time that has passed since the commission of the crime(s).

005.01(B)CONVICTION OF INDIVIDUAL WITH AN OWNERSHIP INTEREST IN A PROVIDER. The Department must deny or terminate the enrollment of a provider where any person with a five percent or greater direct or indirect ownership interest in the provider has been convicted of a criminal offense related to that person's involvement with a Medicare, Medicaid or Title XXI program within the last 10 years, unless the Department determines that denial or termination of enrollment is not in the best interest of the Medicaid program.

005.01(C)EXCLUSION OR TERMINATION FROM PARTICIPATION IN MEDICARE OR OTHER STATE MEDICAID OR CHILDREN'S HEALTH INSURANCE PROGRAM (CHIP). The Department must deny or terminate the enrollment of a provider that has been excluded or terminated from participating in Medicare or Medicaid or Children's Health Insurance Program (CHIP) in any State.

005.02SANCTIONS. The Department may impose one or more of the following sanctions against a provider or any person employed by or contracted with the provider entity responsible for a violation:

(1) Termination from participation in the Medicaid program;

(2) Termination from participation in Managed Care;

(3) Suspension or withholding of payments;

(4) Recoupment from future payments;

(5) Transfer to a closed-end service provider agreement not to exceed 12 months, or the shortening of an already existing closed-end service provider agreement;

(6) Provider education: or

(7) Exclusion from participation.

005.02(A)TERMINATION FROM PARTICIPATION IN MEDICAID. When terminated, the provider may be subject to the following types of exclusions:

(1) Permanent;

(2) Time-limited, which is an exclusion for a specified period of time;

(3) Technical, which is based on a provider's failure to meet a standard or requirement and remains in effect until the Department determines the provider meets the standard or requirement; and

(4) Emergency, which is an immediate exclusion based on the Department's determination that client health and safety may be at risk.

005.02(A)(i)CONDITIONS OF TERMINATION AND EXCLUSION. When a provider is terminated or excluded from Medicaid, Medicaid may not make reimbursement for services, items, or drugs that are rendered, referred, ordered, or prescribed by the terminated provider or caused to be rendered, referred, ordered, or prescribed for a Medicaid client. A terminated or excluded person or entity shall not have an ownership interest in a Medicaid enrolled provider entity.

005.02(A)(i)(1)EXCEPTION. Medicaid may pay claims from a submitting provider until the submitting provider and the client are notified of the termination of the rendering, referring, ordering, or prescribing provider. Medicaid may pay claims for emergency medical services when Medicaid staff or consultants determine that the services were medically necessary.

005.02(A)(i)(2)SUBMISSION OF CLAIMS. Termination or exclusion from participation will preclude a provider from submitting claims for payment, either personally or through any clinic, group, corporation, or other association, to the Department for any services or supplies provided under Medicaid, except for those services or supplies provided before the termination or exclusion.

005.02(A)(ii)EXCLUSION. The Department may impose the sanction of exclusion upon:

(1) Providers who allow service provider agreements to lapse or expire; and

(2) Other individuals or entities associated with an enrolled provider or provider whose service provider agreement has lapsed or has been terminated,

005.02(A)(iii)EXCLUDED PERSON OR ENTITY. No clinic, group, corporation, or other association which is a provider of services shall submit claims for payment to the Department for any services or supplies provided by a person within the organization who has been excluded from participation in Medicaid except for those services or supplies provided before the termination. A provider will not submit any claims to Medicaid that contain the costs of services provided by excluded persons or entities. If these provisions are violated by a clinic, group, corporation, or other association, the Department may sanction the organization and any individual person within the organization responsible for the violation.

005.02(B)SUSPENSION OR WITHHOLDING PAYMENTS. To prevent inappropriate Medicaid payments or to avoid further overpayments, the Department may sanction a provider by suspending the provider's payments with an immediate effective date. The Department will notify the provider by letter that its payments have been suspended. The provider may file an appeal regarding this action; however, the suspension of payments will remain in effect until the hearing decision is made. If a provider participates under one or more provider number, or changes numbers, the Department may, within its sole discretion suspend, withhold, or recoup payments from one or all of the provider numbers.

005.02(C)PROVIDER EDUCATION. A provider who has been sanctioned may be required to participate in a provider education program as a condition of participation.

005.03IMPOSITION OF A SANCTION. The decision on the sanction to be imposed is at the discretion of the Medicaid Director. The following factors are considered in determining the sanctions to be imposed:

(1) Seriousness of the offenses;

(2) Extent of violations;

(3) History of prior violations;

(4) Prior imposition of sanctions;

(5) Prior provision of provider education;

(6) Provider willingness to comply with program rules;

(7) Whether a lesser sanction will be sufficient to remedy the problem; and

(8) Actions taken or recommended by peer review groups and licensing boards.

005.03(A)NOTICE TO THE PROVIDER. The Department will notify the provider at least 30 days before the effective date of the sanction, unless extenuating circumstances exist. The Department may impose a sanction on an emergency basis with immediate effect if, in the Department's discretion, the provider's continued enrollment and participation places a client's health or safety at risk. The provider may file an appeal of the sanction; however, the sanction will remain in effect until the hearing decision is made.

005.03(B)NOTICE TO THE PUBLIC. When a sanction is imposed, the Department will give general notice to the public of the restriction, its basis, and its duration.

005.03(C) NOTIFICATION OF OTHER AGENCIES. When a provider has been sanctioned, the Department will notify, as appropriate, the applicable professional society, board of registration or licensure, and federal or state agencies. The notification will include a summary of the findings made and the sanctions imposed.

005.03(D)NOTIFICATION OF LOCAL DEPARTMENT OFFICES. When a provider's participation in Medicaid has been terminated, the Department will notify the local Department offices of the termination.

005.03(E)MEDICAID EXLUDED PROVIDERS LIST. Terminated and excluded persons and entities will be placed on the Medicaid Excluded Providers list for the duration of the prohibition from participation.

005.04SANCTION OF AFFILIATES AND ASSOCIATES. The Department may sanction all known affiliates of a provider or other persons associated with an enrolled provider. Each decision to sanction an affiliate or other person associated with an enrolled provider is made on a case by case basis after considering all relevant facts and circumstances. The Department may determine the violation, failure, or inadequacy of performance, which resulted in a provider sanction, took place in the course of the affiliate or otherwise associated person's official duty or with the knowledge or approval of the affiliate or associated person.

005.05REACTIVATION. Persons and entities that have been terminated or excluded may request reactivation in writing once the exclusionary period has passed. Reactivation is at the discretion of the Department.

471 Neb. Admin. Code, ch. 2, § 005

Amended effective 12/5/2015.

Adopted effective 2/10/2020

Amended effective 9/21/2020