5160-1-17.5 Suspension of medicaid provider agreements.

(A) For purposes of this rule, the following definitions apply:

(1) "Non-agency provider" has the same meaning as independent provider, as defined in section 5111.034 of the Revised Code, and means an individual who is submitting an application for a provider agreement or who has an existing provider agreement as a non-agency provider in an Ohio department of job and family services (ODJFS) administered home and community based services program providing home and community based waiver services to consumers with disabilities.

(2) "Non-institutional provider" means any person or entity with a medicaid provider agreement other than a hospital, long-term care nursing facility, intermediate care facility for the mentally retarded, or medicaid contracting managed care plans (MCPs). MCPs are subject to rules in accordance with Chapter 5101:3-26 of the Administrative Code.

(3) "Owner" means any person having at least five percent ownership, or interest, either directly, indirectly, or in any combination in a non-institutional provider who must be disclosed in accordance with rule 5101:3-1-17.3 of the Administrative Code.

(B) ODJFS shall suspend the medicaid provider agreement held by the non-institutional provider, other than a non-agency provider, upon receiving notice and a copy of an indictment issued on or after October 1, 2007 that charges a medicaid provider, its owner or owners, officer, authorized agent, associate, manager, or employee with committing an offense that would be a felony or misdemeanor under the laws of this state and the act relates to or results from either of the following:

(1) Prescribing, furnishing or billing for medical care, services, or supplies under the medicaid program; or

(2) Participating in the performance of management or administrative services relating to prescribing, billing, or furnishing medical care, services, or supplies under the medicaid program.

(C) ODJFS shall suspend the medicaid provider agreement of a non-institutional provider that is a non-agency provider upon receiving notice and a copy of an indictment issued on or after October 1, 2007 that charges a non-agency provider, its owner or owners, officer, authorized agent, associate, manager, or employee with committing an offense specified in division (D) of section 5111.034 of the Revised Code.

(D) When subject to a suspension, a provider, its owner or owners, officer, authorized agent, associate, manager, or employee shall not own or provide services to any other medicaid provider or risk contractor or arrange for, render, or order services for medicaid recipients during the period of suspension. During the period of suspension, the provider, owner or owners, officer, authorized agent, associate, manager, or employee shall not receive reimbursement in the form of direct payments from ODJFS or indirect payments of medicaid funds in the form of a salary, shared fees, contracts, kick backs, or rebates or through any participating provider or risk contractor.

(E) The termination of medicaid reimbursement applies only to payments for medicaid services rendered subsequent to the date on which the notice required in paragraph (G) of this rule is sent. Claims for reimbursement for medicaid services rendered by the provider prior to the issuance of the notice may be subject to prepayment review in accordance with rule 5101:3-1-27 of the Administrative Code.

(F) The suspension shall continue in effect until the proceedings in the criminal case are completed through conviction, dismissal of the indictment, plea, or finding of not guilty. If ODJFS commences a process to terminate the suspended provider agreement, the suspension shall continue in effect until the termination process is concluded. Pursuant to section 5111.06 of the Revised Code, ODJFS is not required to take action under this provision by issuing an order pursuant to an adjudication conducted in accordance with Chapter 119. of the Revised Code.

(G) ODJFS shall send notice of the suspension to the affected provider, owner or owners no later than five days after suspending a provider agreement in accordance with this rule. ODJFS shall send the notice by certified mail, return receipt requested. If such a notice is returned because the provider has failed to claim the notice or there is a failure of delivery for another reason, ODJFS shall send the notice by ordinary mail to the provider's last known address and shall obtain a certificate of mailing. Service by certified mail is complete when the return receipt is obtained by ODJFS. Service by ordinary mail is complete when the certificate of mailing is obtained by ODJFS, unless the notice is returned showing failure of delivery. In providing the notice, ODJFS shall:

(1) Describe the indictment that was the cause of the suspension, without necessarily disclosing specific information concerning any ongoing civil or criminal investigation;

(2) State that the suspension of the provider agreement will continue in effect until the proceedings in the criminal case are completed through conviction, dismissal of the indictment, pleas, or finding of not guilty and, if ODJFS commences to terminate the suspended provider agreement, until the termination process is concluded; and

(3) Inform the provider, owner or owners of the opportunity to submit to ODJFS a request for a reconsideration in accordance with this rule no later than thirty days after receiving the certified notice from ODJFS.

(H) Claims paid prior to indictment or any claims paid while under indictment are subject to post payment review and recovery in accordance with rule 5101:3-1-27 of the Administrative Code.

(I) A provider, owner or owners subject to a suspension may request a reconsideration. A request for reconsideration is not subject to a hearing pursuant to Chapter 119. of the Revised Code. The request shall be made not later than thirty days after receipt of the notice provided in accordance with paragraph (G) of this rule. The notice will be deemed received by the provider on the date that the return receipt from certified mail is signed. If the provider has failed to claim the notice, the notice will be deemed received by the provider on the date that ODJFS receives a certificate of mailing. In requesting a reconsideration, the provider, owner or owners shall submit written information and documents to ODJFS. The information and documents may pertain to any of the following issues:

(1) Whether the determination to suspend the provider agreement was based on a mistake of fact, other than the validity of the indictment;

(2) Whether any offense charged in the indictment resulted from an offense specified in paragraphs (B) and (C) of this rule.

(3) Whether the provider, owner or owners can demonstrate that the provider, owner or owners did not directly or indirectly sanction the action of its authorized agent, associate, manager, or employee that resulted in the indictment.

(J) ODJFS shall not suspend a provider agreement or terminate medicaid reimbursement if the provider, owner or owners can demonstrate that the provider, owner or owners did not directly or indirectly sanction the action of its authorized agent, associate, manager, or employee that resulted in the indictment.

(1) If ODJFS has knowledge at the time of indictment that the alleged criminal activity is limited to the individual(s) indicted, and that the provider, owner or owners did not directly or indirectly sanction the action of the individual(s) indicted, ODJFS may use that knowledge in determining that the non-institutional provider will not be suspended.

(2) If ODJFS does not have sufficient knowledge at the time of indictment to determine whether the criminal activity is limited to the individual(s) indicted, ODJFS shall notify the provider, owner or owners of the opportunity to present documentation sufficient to establish that the criminal activity is limited to the individual(s) indicted and that the provider, owner or owners did not directly or indirectly sanction this activity.

(a) The provider, owner or owners shall submit such documentation to ODJFS within thirty days after receipt of the notice provided in accordance with paragraph (G) of this rule.

(b) ODJFS shall have discretion not to impose a suspension during the period specified in paragraph (J)(2)(a) of this rule. During this period, ODJFS may place the provider on prepayment review in accordance with rule 5101:3-1-27 of the Administrative Code.

(K) ODJFS shall review the information and documents submitted in the request for reconsideration. After the review, the suspension may be affirmed, reversed, or modified, in whole or in part. ODJFS shall notify the affected provider, owner or owners of the results of the review. The review and notification of its results shall be completed not later than forty-five days after receiving the information and documents submitted in a request for reconsideration. The review shall be conducted by the ODJFS deputy director in the office where the contestation arose. The deputy director may designate a third party to hear the reconsideration provided that the designee was not involved in the original decision. Decisions made by the deputy director of ODJFS are not appealable or subject to further reconsideration.

Effective: 01/01/2008
R.C. 119.032 review dates: 01/01/2013
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.031
Rule Amplifies: 5111.01 , 5111.02 , 5111.031