§ 22.84. Administrative actions and penalties.
(a) Grounds for action. The Department may terminate an enrolled provider’s agreement and seek restitution from that provider if it determines that the provider, owner of the provider, an employe of the provider or an agent of the provider has done one of the following:
(1) Failed to comply with § 22.82 (relating to false or fraudulent claims by providers) or other provisions of the PACE Program.
(2) Failed to comply with the conditions of participation in the PACE Program.
(3) Failed to comply with the terms of the provider agreement.
(4) Been precluded or excluded for cause, either voluntarily or involuntarily, from Medicare or Medical Assistance.
(5) Been convicted of a Medicare or Medical Assistance related criminal offense as certified by a Federal, State or local court.
(6) Been convicted of a criminal offense under State or Federal laws relating to the practice of the provider’s profession as certified by a court.
(7) Been subject to license suspension or revocation following disciplinary action entered against the provider by the State licensing or certifying agency.
(8) Had a controlled drug license withdrawn or failed to report to the Department changes in the provider’s Drug Enforcement Agency Number.
(9) In the case of dispensing physicians who are providers, dispensed prescriptions which the Department has determined to be harmful to the claimant, of inferior quality or medically unnecessary.
(10) Refused to permit authorized State or Federal officials or their agents to examine the provider’s medical, fiscal or other records as necessary to verify claims under the PACE Program.
(b) Procedures for terminating provider agreements.
(1) The Department, upon notice, may terminate the agreement of, and suspend payments to, an enrolled provider.
(2) Termination for criminal conviction or administrative action will be as follows:
(i) The Department will terminate an enrolled provider’s agreement for a period of up to 5 years if the provider is convicted of a Medicare/Medical Assistance related crime or a criminal offense under State or Federal law relating to the practice of the provider’s profession. If the Department has an additional basis for termination which is unrelated to the criminal conviction, it may terminate the provider agreement for a period in excess of 5 years.
(ii) If the additional basis for the termination is a license suspension or revocation following disciplinary action entered against the provider by 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 or Medical Assistance, 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 on providers.
(1) The Department will not pay providers for prescription drugs dispensed on or after the effective date of the termination of a provider agreement.
(2) An enrolled provider whose agreement has been terminated may not receive payments from the PACE Program during the period of termination.
(3) If a provider appeals the Department’s action of terminating the provider agreement, the Department will not pay the provider for prescription drugs dispensed on or after the effective date specified in the notice of termination.
(d) Notification of termination of a provider agreement.
(1) The Department will issue a notice of termination to an enrolled provider whose agreement is being terminated for cause or as a result of a criminal conviction.
(2) 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.
(e) Dissemination of information.
(1) When the Department takes action against a provider, including termination and initiation of a civil suit, it may also notify and give the reason for the termination to 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 or paying for the provision of health care.
(iv) The applicable Commonwealth professional licensing board.
(v) The United States Postal Service.
(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) if the agencies are notified.
(f) Referral of criminal offenders. In the case of a provider which the Department determines has criminally violated any of the provisions of the PACE Program, the Department may refer the provider to the proper authorities for prosecution under the act or other applicable laws.
(g) Restitution and repayment.
(1) If the Department determines that a provider has billed and received payment for prescription drugs for which payment should not have been made, it will review the provider’s paid and unpaid invoices and compute the amount of the overpayment or improper payment. The Department may conduct a test audit and base the restitution amount on the findings of that audit or any extrapolations from those findings.
(2) The amount of restitution or repayment shall be equal to the amount of all unauthorized payments which the Department has made to a provider plus interest.
(3) In the case of unauthorized payments made as a result of criminal action on the part of a provider, the provider shall, if found guilty under the act, be subject to repay three times the value of the material gain received.
(4) The provider shall pay the amount of restitution owed to the Department either directly or by offset of valid invoices that have not yet been paid. The method of repayment is determined by the Department.
(5) If the Department determines that a provider has committed a prohibited act or has failed to satisfy any requirement under § 22.82, it may institute a civil action against the provider in addition to terminating the provider’s enrollment.
(6) The provider is prohibited from billing a claimant for any amount for which the provider is required to make restitution to the Department.
(h) Suspension of payments. If the Department determines that a provider has submitted a claim for payment which violates the PACE Program, the provider may be notified in writing that payment on outstanding invoices will be delayed or suspended for a period not to exceed 120 days pending a review of his billing and service patterns. In this situation, the Department reserves the right to waive the 21 day payment provision of § 22.11 (relating to general payment principles).
Source The provisions of this § 22.84 adopted December 15, 1984, effective December 16, 1984, 14 Pa.B. 2109; amended December 13, 1985, effective December 14, 1985, 15 Pa.B. 4427; amended December 14, 1990, effective December 15, 1990, 20 Pa.B. 6143. Immediately preceding text appears at serial pages (96841) to (96842) and (103139) to (103140).
Notes of Decisions Failure to Keep Pharmacy License Current
The failure of a PACE provider to have a current license constitutes a material breach of the provider agreement and the recoupment of all claims made by an unlicensed provider is not excessive and constitutes liquidated damages, not a ‘‘penalty.’’ Calabro v. Department of Aging, 689 A.2d (Pa. Cmwlth. 1997); appeal denied 698 A.2d 596 (Pa. 1997).
Cross References This section cited in 6 Pa. Code § 22.62 (relating to conditions of provider participation); 6 Pa. Code § 22.81 (relating to utilization control); and 6 Pa. Code § 22.101 (relating to provider appeals).
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