(a) A felony or misdemeanor conviction, as defined in 42 C.F.R. §1001.2, under Texas law, the laws of another state, or federal law, may affect a provider’s and/or person’s ability to participate.
(b) The OIG may recommend denial of an enrollment application of the applicant or a person required to be disclosed in accordance with §371.1005 of this subchapter (relating to Disclosure Requirements) on the basis of information revealed through a background check on the applicant, provider, or a person required to be disclosed. A background check may include:
(1) information concerning the licensing status of the health care professional;
(2) information contained in the criminal history record information check performed in accordance with Texas Government Code §531.1032;
(3) a review of federal databases;
(4) the pendency of an open investigation by the OIG; and
(5) any other reason that the OIG determines appropriate.
(c) On a case-by-case basis, the OIG may recommend approval of an enrollment application despite the existence of a criminal history.
(1) When evaluating criminal history record information, the OIG takes into consideration:
(2) The OIG also considers the following circumstances:
(3) The provider is responsible for providing to HHSC or to the OIG, within three business days of an IG request, information related to the degree to which a person could interact with Medicaid recipients as a provider.
(4) In all instances, the OIG takes into consideration evidence of multiple or repeated instances of the same or similar conduct.
(d) In addition to the considerations outlined in subsection (c) of this section, the OIG specifically takes into consideration the following conduct that may be contained in criminal history record information of providers, applicants, or persons required to be disclosed:
(1) for provider types that have or may have direct access to recipients in their capacity as a provider:
(2) for provider types that may transport recipients and guardians in their capacity as a provider:
(3) for provider types that may have interaction with or access to recipients, recipients' homes, or recipients' property in their capacity as a provider:
(4) for provider types that have no recipient interaction or access:
(e) The OIG may recommend permanent denial of an enrollment application if:
(1) the applicant, provider, or a person required to be disclosed has been convicted, as defined in 42 C.F.R. §1001.2, of an offense arising from a fraudulent act under Medicaid or other HHS programs; and
(2) that fraudulent act resulted in injury to an elderly person, a person with a disability, or a person younger than 18 years of age.
(f) The OIG may recommend denial of any enrollment application, regardless of provider type, if it determines in its discretion that the applicant may pose an increased risk for committing fraud, waste, or abuse or may demonstrate unfitness to provide or bill for medical assistance items or services. In addition to the applicant's criminal, regulatory, and administrative sanction history, the OIG considers all applicable circumstances, including the following, if applicable:
(1) the applicant, a person required to be disclosed, or a person with an ownership or control interest in the provider did not submit complete, timely, and accurate information, failed to cooperate with any provider screening methods, or refused to permit access for a site visit;
(2) the applicant or a person required to be disclosed has failed to repay overpayments to Medicaid, CHIP, or other HHS programs;
(3) the applicant, provider, or a person required to be disclosed pursuant to §371.1005 of this subchapter, has been suspended or prohibited from participating, excluded, terminated, or debarred from participating in any state Medicaid, CHIP or other HHS agency program;
(4) the applicant, provider, or a person required to be disclosed has participated in Medicaid or CHIP program and failed to bill for medical assistance or refer clients for medical assistance within the 12-month period prior to submission of the enrollment application;
(5) the applicant, provider, or a person required to be disclosed has falsified any information on the enrollment application; and
(6) The OIG is unable to verify the identity of the applicant, provider, or a person required to be disclosed.
(g) Healthcare professionals who are licensed and in good standing with a Texas licensing authority that requires the submission of fingerprints for the purpose of conducting a criminal history record information check are not subject to an additional criminal history record information check by the OIG for the purposes of determining eligibility to enroll, unless performing a criminal history record information check is required or appropriate for other reasons, including for conducting an investigation of fraud, waste, or abuse or where required by 42 C.F.R. §455.450.
Source Note: The provisions of this §371.1011 adopted to be effective December 31, 2012, 37 TexReg 10189; amended to be effective May 1, 2016, 41 TexReg 2941; amended to be effective February 12, 2017, 42 TexReg 417