5 U.S.C. § 8902a : US Code - Section 8902A: Debarment and other sanctions

Search 5 U.S.C. § 8902a : US Code - Section 8902A: Debarment and other sanctions

(a)(1) For the purpose of this section - 
(A) the term "provider of health care services or supplies" or
"provider" means a physician, hospital, or other individual or
entity which furnishes health care services or supplies;
(B) the term "individual covered under this chapter" or
"covered individual" means an employee, annuitant, family member,
or former spouse covered by a health benefits plan described by
section 8903 or 8903a;
(C) an individual or entity shall be considered to have been
"convicted" of a criminal offense if - 
(i) a judgment of conviction for such offense has been
entered against the individual or entity by a Federal, State,
or local court;
(ii) there has been a finding of guilt against the individual
or entity by a Federal, State, or local court with respect to
such offense;
(iii) a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State, or local court
with respect to such offense; or
(iv) in the case of an individual, the individual has entered
a first offender or other program pursuant to which a judgment
of conviction for such offense has been withheld;
without regard to the pendency or outcome of any appeal (other
than a judgment of acquittal based on innocence) or request for
relief on behalf of the individual or entity; and
(D) the term "should know" means that a person, with respect to
information, acts in deliberate ignorance of, or in reckless
disregard of, the truth or falsity of the information, and no
proof of specific intent to defraud is required; (!1)
(2)(A) Notwithstanding section 8902(j) or any other provision of
this chapter, if, under subsection (b), (c), or (d) a provider is
barred from participating in the program under this chapter, no
payment may be made by a carrier pursuant to any contract under
this chapter (either to such provider or by reimbursement) for any
service or supply furnished by such provider during the period of
the debarment.
(B) Each contract under this chapter shall contain such
provisions as may be necessary to carry out subparagraph (A) and
the other provisions of this section.
(b) The Office of Personnel Management shall bar the following
providers of health care services or supplies from participating in
the program under this chapter:
(1) Any provider that has been convicted, under Federal or
State law, of a criminal offense relating to fraud, corruption,
breach of fiduciary responsibility, or other financial misconduct
in connection with the delivery of a health care service or
supply.
(2) Any provider that has been convicted, under Federal or
State law, of a criminal offense relating to neglect or abuse of
patients in connection with the delivery of a health care service
or supply.
(3) Any provider that has been convicted, under Federal or
State law, in connection with the interference with or
obstruction of an investigation or prosecution of a criminal
offense described in paragraph (1) or (2).
(4) Any provider that has been convicted, under Federal or
State law, of a criminal offense relating to the unlawful
manufacture, distribution, prescription, or dispensing of a
controlled substance.
(5) Any provider that is currently debarred, suspended, or
otherwise excluded from any procurement or nonprocurement
activity (within the meaning of section 2455 of the Federal
Acquisition Streamlining Act of 1994).
(c) The Office may bar the following providers of health care
services from participating in the program under this chapter:
(1) Any provider - 
(A) whose license to provide health care services or supplies
has been revoked, suspended, restricted, or not renewed, by a
State licensing authority for reasons relating to the
provider's professional competence, professional performance,
or financial integrity; or
(B) that surrendered such a license while a formal
disciplinary proceeding was pending before such an authority,
if the proceeding concerned the provider's professional
competence, professional performance, or financial integrity.
(2) Any provider that is an entity directly or indirectly
owned, or with a control interest of 5 percent or more held, by
an individual who has been convicted of any offense described in
subsection (b), against whom a civil monetary penalty has been
assessed under subsection (d), or who has been debarred from
participation under this chapter.
(3) Any individual who directly or indirectly owns or has a
control interest in a sanctioned entity and who knows or should
know of the action constituting the basis for the entity's
conviction of any offense described in subsection (b), assessment
with a civil monetary penalty under subsection (d), or debarment
from participation under this chapter.
(4) Any provider that the Office determines, in connection with
claims presented under this chapter, has charged for health care
services or supplies in an amount substantially in excess of such
provider's customary charge for such services or supplies (unless
the Office finds there is good cause for such charge), or charged
for health care services or supplies which are substantially in
excess of the needs of the covered individual or which are of a
quality that fails to meet professionally recognized standards
for such services or supplies.
(5) Any provider that the Office determines has committed acts
described in subsection (d).
Any determination under paragraph (4) relating to whether a charge
for health care services or supplies is substantially in excess of
the needs of the covered individual shall be made by trained
reviewers based on written medical protocols developed by
physicians. In the event such a determination cannot be made based
on such protocols, a physician in an appropriate specialty shall be
consulted.
(d) Whenever the Office determines - 
(1) in connection with claims presented under this chapter,
that a provider has charged for a health care service or supply
which the provider knows or should have known involves - 
(A) an item or service not provided as claimed;
(B) charges in violation of applicable charge limitations
under section 8904(b); or
(C) an item or service furnished during a period in which the
provider was debarred from participation under this chapter
pursuant to a determination by the Office under this section,
other than as permitted under subsection (g)(2)(B);
(2) that a provider of health care services or supplies has
knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact which is reflected in a
claim presented under this chapter; or
(3) that a provider of health care services or supplies has
knowingly failed to provide any information required by a carrier
or by the Office to determine whether a payment or reimbursement
is payable under this chapter or the amount of any such payment
or reimbursement;
the Office may, in addition to any other penalties that may be
prescribed by law, and after consultation with the Attorney
General, impose a civil monetary penalty of not more than $10,000
for any item or service involved. In addition, such a provider
shall be subject to an assessment of not more than twice the amount
claimed for each such item or service. In addition, the Office may
make a determination in the same proceeding to bar such provider
from participating in the program under this chapter.
(e) The Office - 
(1) may not initiate any debarment proceeding against a
provider, based on such provider's having been convicted of a
criminal offense, later than 6 years after the date on which such
provider is so convicted; and
(2) may not initiate any action relating to a civil penalty,
assessment, or debarment under this section, in connection with
any claim, later than 6 years after the date the claim is
presented, as determined under regulations prescribed by the
Office.
(f) In making a determination relating to the appropriateness of
imposing or the period of any debarment under this section (where
such debarment is not mandatory), or the appropriateness of
imposing or the amount of any civil penalty or assessment under
this section, the Office shall take into account - 
(1) the nature of any claims involved and the circumstances
under which they were presented;
(2) the degree of culpability, history of prior offenses or
improper conduct of the provider involved; and
(3) such other matters as justice may require.
(g)(1)(A) Except as provided in subparagraph (B), debarment of a
provider under subsection (b) or (c) shall be effective at such
time and upon such reasonable notice to such provider, and to
carriers and covered individuals, as shall be specified in
regulations prescribed by the Office. Any such provider that is
debarred from participation may request a hearing in accordance
with subsection (h)(1).
(B) Unless the Office determines that the health or safety of
individuals receiving health care services warrants an earlier
effective date, the Office shall not make a determination adverse
to a provider under subsection (c)(5) or (d) until such provider
has been given reasonable notice and an opportunity for the
determination to be made after a hearing as provided in accordance
with subsection (h)(1).
(2)(A) Except as provided in subparagraph (B), a debarment shall
be effective with respect to any health care services or supplies
furnished by a provider on or after the effective date of such
provider's debarment.
(B) A debarment shall not apply with respect to inpatient
institutional services furnished to an individual who was admitted
to the institution before the date the debarment would otherwise
become effective until the passage of 30 days after such date,
unless the Office determines that the health or safety of the
individual receiving those services warrants that a shorter period,
or that no such period, be afforded.
(3) Any notice of debarment referred to in paragraph (1) shall
specify the date as of which debarment becomes effective and the
minimum period of time for which such debarment is to remain
effective. In the case of a debarment under paragraph (1), (2),
(3), or (4) of subsection (b), the minimum period of debarment
shall not be less than 3 years, except as provided in paragraph
(4)(B)(ii).
(4)(A) A provider barred from participating in the program under
this chapter may, after the expiration of the minimum period of
debarment referred to in paragraph (3), apply to the Office, in
such manner as the Office may by regulation prescribe, for
termination of the debarment.
(B) The Office may - 
(i) terminate the debarment of a provider, pursuant to an
application filed by such provider after the end of the minimum
debarment period, if the Office determines, based on the conduct
of the applicant, that - 
(I) there is no basis under subsection (b), (c), or (d) for
continuing the debarment; and
(II) there are reasonable assurances that the types of
actions which formed the basis for the original debarment have
not recurred and will not recur; or
(ii) notwithstanding any provision of subparagraph (A),
terminate the debarment of a provider, pursuant to an application
filed by such provider before the end of the minimum debarment
period, if the Office determines that - 
(I) based on the conduct of the applicant, the requirements
of subclauses (I) and (II) of clause (i) have been met; and
(II) early termination under this clause is warranted based
on the fact that the provider is the sole community provider or
the sole source of essential specialized services in a
community, or other similar circumstances.
(5) The Office shall - 
(A) promptly notify the appropriate State or local agency or
authority having responsibility for the licensing or
certification of a provider barred from participation in the
program under this chapter of the fact of the debarment, as well
as the reasons for such debarment;
(B) request that appropriate investigations be made and
sanctions invoked in accordance with applicable law and policy;
and
(C) request that the State or local agency or authority keep
the Office fully and currently informed with respect to any
actions taken in response to the request.
(h)(1) Any provider of health care services or supplies that is
the subject of an adverse determination by the Office under this
section shall be entitled to reasonable notice and an opportunity
to request a hearing of record, and to judicial review as provided
in this subsection after the Office renders a final decision. The
Office shall grant a request for a hearing upon a showing that due
process rights have not previously been afforded with respect to
any finding of fact which is relied upon as a cause for an adverse
determination under this section. Such hearing shall be conducted
without regard to subchapter II of chapter 5 and chapter 7 of this
title by a hearing officer who shall be designated by the Director
of the Office and who shall not otherwise have been involved in the
adverse determination being appealed. A request for a hearing under
this subsection shall be filed within such period and in accordance
with such procedures as the Office shall prescribe by regulation.
(2) Any provider adversely affected by a final decision under
paragraph (1) made after a hearing to which such provider was a
party may seek review of such decision in the United States
District Court for the District of Columbia or for the district in
which the plaintiff resides or has his or her principal place of
business by filing a notice of appeal in such court within 60 days
after the date the decision is issued, and by simultaneously
sending copies of such notice by certified mail to the Director of
the Office and to the Attorney General. In answer to the appeal,
the Director of the Office shall promptly file in such court a
certified copy of the transcript of the record, if the Office
conducted a hearing, and other evidence upon which the findings and
decision complained of are based. The court shall have power to
enter, upon the pleadings and evidence of record, a judgment
affirming, modifying, or setting aside, in whole or in part, the
decision of the Office, with or without remanding the case for a
rehearing. The district court shall not set aside or remand the
decision of the Office unless there is not substantial evidence on
the record, taken as whole, to support the findings by the Office
of a cause for action under this section or unless action taken by
the Office constitutes an abuse of discretion.
(3) Matters that were raised or that could have been raised in a
hearing under paragraph (1) or an appeal under paragraph (2) may
not be raised as a defense to a civil action by the United States
to collect a penalty or assessment imposed under this section.
(i) A civil action to recover civil monetary penalties or
assessments under subsection (d) shall be brought by the Attorney
General in the name of the United States, and may be brought in the
United States district court for the district where the claim
involved was presented or where the person subject to the penalty
resides. Amounts recovered under this section shall be paid to the
Office for deposit into the Employees Health Benefits Fund. The
amount of a penalty or assessment as finally determined by the
Office, or other amount the Office may agree to in compromise, may
be deducted from any sum then or later owing by the United States
to the party against whom the penalty or assessment has been
levied.
(j) The Office shall prescribe regulations under which, with
respect to services or supplies furnished by a debarred provider to
a covered individual during the period of such provider's
debarment, payment or reimbursement under this chapter may be made,
notwithstanding the fact of such debarment, if such individual did
not know or could not reasonably be expected to have known of the
debarment. In any such instance, the carrier involved shall take
appropriate measures to ensure that the individual is informed of
the debarment and the minimum period of time remaining under the
terms of the debarment.