§ 1101.83. Restitution and repayment.
(a) If the Department determines that a provider has billed and been paid for a service or item 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 will use statistical sampling methods and, where appropriate, purchase invoices and other records for the purpose of calculating the amount of restitution due for a service, item, product or drug substitution.
(b) The Department may seek reimbursement from the ordering or prescribing provider for payments to another provider, if the Department determines that the ordering or prescribing provider has done either of the following:
(1) Prescribed excessive diagnostic services; or
(2) Ordered diagnostic services or treatment or both, without documenting the medical necessity for the service or treatment in the medical record of the MA recipient.
(c) The amount of restitution demanded by the Department will be the amount of the overpayment received by the ordering or prescribing provider or the amount of payments to other providers for excessive or unnecessary services prescribed or ordered. If the ordering or prescribing provider is convicted of an offense under Article XIV of the Public Welfare Code (62 P. S. § § 1401—1411), the restitution penalties of that article applies.
(d) 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. All Departmental demands for restitution will be approved by the Deputy Secretary for Medical Assistance before the provider is notified.
(e) If the Department determines that a provider has committed any prohibited act or has failed to satisfy any requirement under § 1101.75(a) (relating to provider prohibited acts), it may institute a civil action against the provider in addition to terminating the provider’s enrollment. If the Department institutes a civil action against the provider, the Department may seek to recover twice the amount of excess benefits or payments plus legal interest from the date the violations occurred.
(f) The provider is prohibited from billing an eligible recipient for any amount for which the provider is required to make restitution to the Department.
Source The provisions of this § 1101.83 amended November 18, 1983, effective November 19, 1983, 13 Pa.B. 3653. Immediately preceding text appears at serial page (62900).
Notes of Decisions Pharmacist convicted of crime related to practice committed prior to effective date of statute charged with knowledge of regulations dealing with termination and participation in program. Jack v. Department of Public Welfare, 568 A.2d 1339 (Pa. Cmwlth. 1990).
Where the statistical sample selected appeared to be representative and where the petitioner was afforded a rebuttal opportunity, the statistical methods utilized by Department under subsection (a) represented a proper method for determining the proper amount of restitution. Del Borrello v. Department of Public Welfare, 508 A.2d 368 (Pa. Cmwlth. 1986).
The Department did not abuse its discretion in deciding that § 1101.81(a) (rescinded 1983, similar regulations currently at § 1101.83) permitted the Department to compel provider to make restitution where his documentation is so poor that the necessity of the billed services cannot be determined. Del Borrello v. Department of Public Welfare, 508 A.2d 368 (Pa. Cmwlth. 1986).
Cross References This section cited in 55 Pa. Code § 1101.74 (relating to provider fraud); 55 Pa. Code § 1101.75 (relating to provider prohibited acts); 55 Pa. Code § 1101.77 (relating to enforcement actions by the Department); 55 Pa. Code § 1127.81 (relating to provider misutilization); 55 Pa. Code § 1181.542 (relating to who is required to be screened); and 55 Pa. Code Chapter 1181 Appendix O (relating to OBRA sanctions).
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