§ 1101.77. Enforcement actions by the Department.
(a) Departmental determination of violation. The Department may terminate a providers enrollment and direct and indirect participation in the MA Program and seek restitution as specified in § 1101.83 (relating to restitution and repayment) if it determines that a provider, an employe of the provider or an agent of the provider has:
(1) Failed to comply with this chapter or the appropriate separate chapters relating to each provider type.
(2) Committed a prohibited act as specified in this chapter or the appropriate separate chapter relating to each provider type or under Article XIV of the Public Welfare Code (62 P. S. § § 14011411).
(3) Failed to comply with the conditions of participation listed in Articles IV or XIV of the Public Welfare Code (62 P. S. § § 401493 and 14011411).
(4) Not complied with the terms of the provider agreement.
(5) Been suspended or terminated from Medicare.
(6) Been convicted of a Medicare or Medicaid related criminal offense as certified by a Federal, State or local court.
(7) Been convicted of a criminal offense under State or Federal laws relating to the practice of the providers profession as certified by a court.
(8) Been subject to a disciplinary action taken or entered against the provider in the records of the State licensing or certifying agency.
(9) Had a controlled drug license withdrawn or failed to report to the Department changes in the Providers Drug Enforcement Agency Number.
(10) Rendered or ordered services or items which the Departments medical professionals have determined to be harmful to the recipient, of inferior quality or medically unnecessary.
(11) Ordered services for recipients or billed the Department for rendering services to recipients at an unregistered shared health facility after the shared health facility and provider are notified by the Department that the shared health facility is not registered.
(12) Refused to permit duly authorized State or Federal officials or their agents to examine the providers medical, fiscal or other records as necessary to verify services or claims for payment under the program.
(b) Departmental termination of the providers enrollment and participation.
(1) The Department may terminate the enrollment and direct and indirect participation of, and suspend payments to, any provider upon 30 days advance notice for the convenience or best interest of the Department.
(2) If the Department terminates the enrollment and participation of a provider for reasons specified in subsections (a)(3), (5), (6), (7) or (8), the effective date of the termination will be the date of the action specified in the appropriate paragraph of subsection (a).
(3) Termination for criminal conviction or disciplinary action shall be as follows:
(i) The Department will terminate a providers enrollment and participation for 5 years if the provider is convicted of a criminal act listed in Article XIV of the Public Welfare Code (62 P. S. § § 14011411), a Medicare/Medicaid related crime or a criminal offense under State or Federal law relating to the practice of the providers profession. If the Department has an additional basis for termination which is unrelated to, and in addition to, the criminal conviction, it may terminate the provider for a period in excess of 5 years.
(ii) If the additional basis for the termination is a disciplinary action taken against the provider or entered in the records of the State licensing or certifying agency, the period of termination will be the duration of the disciplinary action plus 5 years for the criminal conviction.
(iii) If the Department has a basis for termination which is related to the criminal conviction (with the exception of exclusions from Medicare) the minimum period of the termination will be the longer of 5 years or the period related to the other action.
(c) Effects of termination of providers.
(1) The Department does not pay for services or items rendered, prescribed or ordered on and after the effective date of a providers termination from the Medical Assistance Program.
(i) A provider is not paid for services or items rendered on and after the effective date of his termination from the program.
(ii) A participating provider is not paid for services, including inpatient hospital care and nursing home care, or items prescribed or ordered by a provider who has been terminated from the program.
(iii) A participating provider is paid for services or items prescribed or ordered by a provider who voluntarily withdraws from the program.
(2) A provider whose enrollment in the program has been terminated may not, during the period of termination:
(i) Own, render, order or arrange for a service for a recipient.
(ii) Receive direct or indirect payments from the Department in the form of salary, equity, dividends, shared fees, contracts, kickbacks or rebates from or through a participating provider or related entity.
(3) If a provider appeals the Departments action of terminating the enrollment and participation of or suspending payments to the provider:
(i) The Department will pay the provider for compensable service rendered on and after the effective date specified in the notice if the appeal of the provider is upheld.
(ii) The Department will not pay the provider for services rendered on or after the effective date specified in the notice if the appeal of the provider is denied.
(d) Provider notification.
(1) The Department will issue a Notice of Termination to a provider whose enrollment and participation is being terminated with cause or as a result of a criminal conviction. The notice will state the basis for the action, the effective date, whether the Department will consider re-enrollment and, if so, the date when re-enrollment will be considered.
(2) If the Department is terminating the enrollment and participation of all providers or all providers of a specific type under a statute of the General Assembly of the Commonwealth or of the Congress of the United States, notification will be by publication in the Pennsylvania Bulletin.
(3) A providers participation is automatically terminated as of the effective date of the providers termination or suspension from Medicare. A notice confirming the termination will be sent to the provider.
(e) Dissemination of information.
(1) When the Department takes an action against a provider, including termination and initiation of a civil suit, it will also notify and give the reason for the termination to all of the following:
(i) The Medicaid Fraud Control Unit, Office of the Attorney General.
(ii) The Health Care Financing Administration.
(iii) Other State and local agencies involved in providing health care.
(iv) The applicable professional licensing board.
(2) After final adjudication, a copy of the Notice of Termination and the reasons for termination may be made available to Medicaid agencies of other states, the appropriate professional associations and the news media. Detailed case material and findings will be made available to the agencies specified in paragraph (1).
(3) The Department will issue a medicheck list containing the names of all providers who have been terminated from the Program.
(f) Violations by nonparticipating former providers.
(1) The Department may take an enforcement action against a nonparticipating former provider that it may impose upon a participating provider for an act committed while a provider.
(2) If the Department takes action, it will issue a Notice of Exclusion to the nonparticipating former provider stating the basis for the action, the effective date, whether the Department will consider re-enrollment, and, if so, the date when the request for re-enrollment will be considered.
The provisions of this § 1101.77 issued under sections 403(a) and (b) and 1410 of the Public Welfare Code (62 P. S. § § 403(a) and (b) and 1410).
The provisions of this § 1101.77 adopted November 18, 1983, effective November 19, 1983, 13 Pa.B. 3653.
Notes of Decisions
The Department of Public Welfare was equitably estopped from denying the nursing care facility full Medical Assistance (MA) reimbursement for the patient care the facility provided to MA patients during its period of decertification. In response to its numerous inquiries, the facility was misled by several assurances from the Department of Health (DOH) that the facility would not have to relocate the MA patients for the period at issue. In fact, DOH instructed the facility to take no action to relocate the patients, gave the facility consecutive provisional licenses to provide long-term health care services and to admit new MA patients throughout another year. Further, the Secretary of the DPW assured the president of the facility that payment would be received for the services provided. Cameron Manor, Inc. v. Department of Public Welfare, 681 A.2d 836 (Pa. Cmwlth. 1996).
Termination of a providers enrollment in MA Program because of conviction takes effect date of conviction; thus restitution can be claimed from that date. Jack v. Department of Public Welfare, 568 A.2d 1339 (Pa. Cmwlth. 1990).
Where the Department of Public Welfare had authority under subsection (a)(1) to terminate a provider agreement permanently for providing pharmacy services outside the scope of customary standards, and there had been no fraud or bad faith alleged, imposition of a 2 year suspension was not an abuse of discretion. Girard Prescription Center v. Department of Public Welfare, 496 A.2d 83 (Pa. Cmwlth. 1985); appeal granted 503 A.2d 930 (Pa. 1986).
This section cited in 55 Pa. Code § 1101.42 (relating to prerequisites for participation); 55 Pa. Code § 1101.75 (relating to provider prohibited acts); 55 Pa. Code § 1101.77a (relating to termination for convenience and best interests of the Departmentstatement of policy); 55 Pa. Code § 1101.84 (relating to provider right of appeal); 55 Pa. Code § 1121.81 (relating to provider misutilization); 55 Pa. Code Chapter 1181 Appendix O (relating to OBRA sanctions); 55 Pa. Code § 1187.21a (relating to nursing facility exception requestsstatement of policy); and 55 Pa. Code § 6100.744 (relating to additional conditions and sanctions).
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