Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,995
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track the language of the existing rules verbatim. No changes
are made in response to this comment.
Comment: TMA comments that rule 371.1651 which lists ac-
tions that could subject a provider to administrative action or
sanction, is too broad and unreasonable, specifically paragraphs
(2), (3), (4), (6) and (16). TMA opposes these violations and
urges OIG to delete them from the rule.
Response: This rule provision is required by state law. Human
Resources Code 32.047(b) provides that the agency must pro-
hibit a person from participating in the Medicaid program if the
person is affiliated with a provider who has been suspended or
prohibited from participating in the program. Thus, this event
must be categorized as a program violation in subsection (a)(2)
to support the sanctions of exclusion or termination as required
by federal and state law. No changes are made in response to
this comment.
Comment: TMA states that paragraph (3) of 371.1653 is overly
broad and should be stricken. TMA comments that if prior au-
thorization is not obtained for treatment, the remedy should be
that the claim is not paid, and the lack of authorization should
not be a "program violation". In addition, paragraph (4) should
be an administrative error and not a "violation". Finally, TMA
states that paragraph (14) should be deleted as it is misplaced,
so paragraphs (3), (4), and (14) should be deleted.
Response: The provision is expressly limited to those instances
in which the particular item required prior authorization. There
is no edit system in place to capture claims for payment when
the provider failed to obtain prior authorization as TMA sug-
gests. HHSC's only recourse is to recoup the payment from the
provider.
OIG recaptures overpayments that may result from fraud, waste,
abuse, or simple mistake. The fact that an event is listed as a
program violation does not imply that the provider was commit-
ting fraudulent activity. But in order for OIG to seek recoupment
of an overpayment, which is a sanction, the error must be pro-
hibited by rule as a program violation. No changes are made
in response to this comment. With respect to paragraph (14),
providers have attempted to pass through prior damages, costs,
or penalties through to the agency on ensuing cost reports. Such
expenses are disallowed as costs, and subject the provider to
sanctions or administrative actions.
Comment: TMA stated that 371.1667(3) provides that a person
commits a program violation if the person fails to grant "imme-
diate access" to the premises, records, documentation or "any
items or equipment determined necessary by the OIG?" The re-
quirement for "immediate access" is unreasonable, and does
not account for or provide any exception for reasonable delay,
patient safety, etc. There are a plethora of examples in which
a physician may be unable to provide "immediate access" and
should not be penalized for failing to do so. TMA recommends
that "immediate" be removed from this language, and that lan-
guage be added to provide to allow exceptions when there is
a good faith effort at compliance, but circumstances prevent an
immediate access.
Response: OIG conducts surprise audits and reviews of some
program areas and this is an important aspect of its work. OIG
may have a legitimate need for immediate access when con-
ducting site visits of high-risk providers, utilization reviews, and
investigations of possible patient neglect or abuse.The term "immediate access" is used throughout the current
rules, specifically at 1 TAC 371.1643(f). The proposed rule
does not make a substantive change. OIG has consistently
worked with providers to arrange workable production and
access schedules in its more typical audits and investigations,
and it will continue to do so. No changes are made in response
to this comment.
Comment: TMA comments that paragraph (10) of rule
371.1669 provides that a physician commits a program viola-
tion if the physician refers to an entity with which the physician
has a financial relationship for the furnishing of designated
health services. TMA is concerned about the potential impact
this provision will have on a physician's participation in an
Accountable Care Organization under the Patient Protection
and Affordable Care Act, or a Health Care Collaborative under
Texas law. TMA seeks clarification from OIG regarding a
physician's participation under these circumstances. Also, TMA
recommended that paragraph (10) should be removed.
CPL expressed concern that the rules do not clarify conduct that
is authorized by the federal safe harbors or exceptions to the
Stark self-referral law.
Response: The basis for the proposed rule is 32.039 of the
Human Resources Code, which prohibits most forms of self-re-
ferral. The rule was previously revised to give rise to liability
only if payment would be denied pursuant to Stark I, II, or Ill. No
changes are made in response to this comment.
Comment: TMA expressed concern with 371.1701, because
the administrative actions do not give rise to due process, ad-
ditional notice or hearing requirements. TMA again expressed
concern with the affiliation issue and the fraud v. overpayment
issues which have been previously addressed in these Re-
sponses.
Response: Administrative actions involve remedial action that
does not deprive anyone of a property right, so due process does
not attach. OIG disagrees that it should fund contested case
hearings in such matters. Such an approach would contradict its
statutory mandate to allocate its resources to those cases with
the highest likelihood for the recovery of dollars. No changes are
made in response to this comment.
Comment: TMA objects to 371.1703, subsections (b)(1), (4),
(7), and (8)(C), for the reasons previously offered and addressed
earlier. TMA objects to a provider being held accountable for the
actions of another over whom the provider has no control, or of
another who has no control over the provider. Such a policy is
fundamentally unfair, and does nothing to deter future violations.
TMA urges OIG to strike these subsections.
Response: Federal and state provisions dictate the terms of the
proposed rule. 42 CFR 455.416 expressly requires termina-
tion of a provider's participation if the conditions are met by the
provider, any person with an ownership or control interest of the
provider, or any agent or managing employee of the provider.
The responses to proposed 371.1651 give the legal basis for
the termination provisions in proposed 371.1703. No changes
are made in response to this comment.
Comment: TMA objects to 371.1703(g)(6)(B). TMA under-
stands the OIG making termination effective on the notice of
termination when the health or safety of a person is at risk.
However, failure to grant "immediate" access to OIG or a
Requesting Agency, or failing to provide copies, etc. does not
warrant this harsh penalty. TMA objects to OIG making its ac-ADOPTED RULES October 5, 2012 37 TexReg 7995
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Texas. Secretary of State. Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012, periodical, October 5, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth288982/m1/180/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.