[Federal Register: February 3, 2003 (Volume 68, Number 22)]
[Rules and Regulations]
[Page 5469-5485]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03fe03-8]
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Part V
Office of Personnel Management
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5 CFR Part 890
Debarments and Suspensions of Health Care Providers From the Federal
Employees Health Benefits Program; Final Rule
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 890
RIN 3206-AD76
Debarments and Suspensions of Health Care Providers From the
Federal Employees Health Benefits Program
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is amending its
regulations regarding administrative sanctions of health care providers
participating in the Federal Employees Health Benefits Program (FEHBP).
These regulations implement the suspension and debarment provisions of
section 2 of the Federal Employees Health Care Protection Act of 1998
(Pub. L. 105-266). That statute modified both the substantive and
procedural requirements for FEHBP administrative sanctions. These
regulations supersede interim final regulations issued in 1989 to
implement the earlier sanctions legislation that was amended by Public
Law 105-266. They will promote quicker, more uniform decisionmaking for
suspensions and debarments, and will enhance protection against unfit
providers for both the FEHBP and the individuals who receive health
insurance coverage through the Program.
DATES: Effective February 3, 2003.
FOR FURTHER INFORMATION CONTACT: David Cope, by telephone at 202-606-
2851; by FAX at 202-606-2153; or by e-mail at debar@opm.gov.
SUPPLEMENTARY INFORMATION:
Background
This rule was issued as a notice of proposed rulemaking in the
December 12, 2001, Federal Register (66 FR 64160). During the 60-day
public comment period, OPM received written comments from two
professional organizations representing health care providers, an
industry association of health insurance plans, and an FEHBP carrier.
Oral comments were received from an FEHBP carrier and from OPM
employees. This regulatory preamble addresses all of the comments from
each source, many of which were incorporated into the final rule.
After the public comment period closed, we rewrote the proposed
rule to improve its clarity and to reduce what we, as well as some of
the commenters, believed to be the unnecessary wordiness associated
with the ``question and answer'' format. This resulted in wording,
formatting, and structural changes in virtually every section of the
regulatory text. However, in no case has the meaning or effect of any
regulatory material changed simply as a function of our rewriting.
Because they do not reflect substantive modifications to the proposed
rule, we have not identified each individual wording or format change.
However, all such changes fall into one or more of the following
categories:
(1) The proposed rule was written in a ``question and answer''
format in which the title of each section was phrased as a question and
the body of the section constituted a response to that question.
However, because the regulation is intended to apply to four different
groups with divergent interests--the debarring official, the presiding
official, health care providers, and health insurance carriers
participating in FEHBP--in many passages the format created uncertainty
as to the group or groups to which the regulatory material pertained.
Therefore, we converted the regulation from ``question and answer'' to
a third-person narrative format.
(2) In the proposed rule, the pronouns ``we'' or ``us'' were
frequently used to denote the U.S. Office of Personnel Management,
within the context of the ``question and answer'' regulatory format. We
have since concluded that such references were not appropriate to
denote a Federal agency, and may have created uncertainty among some
readers about their meaning. As rewritten, the final rule refers to the
agency solely as ``OPM,'' except in a very few instances where the
context and antecedent unambiguously support use of the pronoun ``it.''
(3) As part of the ``question and answer'' format, the proposed
rule used the pronoun ``you'' to denote a health care provider(s). In
narrative format of the final rule, we replaced those references with
``health care provider'' or ``provider.''
(4) We have uniformly rendered references to the United States Code
as (title number) U.S.C. (section number) and references to the Code of
Federal Regulations as (title number) CFR (part number and/or letter
designating subpart) (section number).
(5) In the definitions section (890.1003), we deleted subsection
designations ((a), (b), etc.). The defined terms continue to be listed
in alphabetic order.
(6) We replaced every passage that consisted of a direct
restatement of a statutory provision with a citation to the applicable
statutory provision. In most cases, this eliminated an appreciable
amount of text and substantially shortened the regulatory provision.
Because such sections had been intended simply to restate a statutory
passage, there was no change of regulatory effect. Further, this type
of rewriting improved the precision of the regulatory content by making
it clear that the regulation intends to apply the cited statutory
language exactly as written.
(7) Several sections or passages in the proposed rule contained
citations to other regulatory sections as an authority for taking
regulatory action. In every case where the cited regulatory passage had
a direct underlying statutory authority, we have replaced the
regulatory citation with a citation to the applicable statutory
provision as the authority for regulatory action.
(8) In addition to rewriting the proposed rule from ``question and
answer'' to narrative format, we attempted to simplify and shorten both
the language and structure of the regulation wherever possible. We made
wording changes throughout the regulation to introduce nontechnical
terminology, and we sought to insure that each paragraph addresses only
a single concept. In this process, we noted that the proposed Sec.
890.1009(b) contained two distinctly separate concepts (contesting the
length of a proposed debarment and requesting a personal appearance
before the debarring official). Therefore, we created a new Sec.
890.1009(c) to address the personal appearance, leaving Sec.
890.1009(b) to address only contests of proposed debarments. Similarly,
we noted that Sec. Sec. 890.1013(a) and 1016(a) and (b) contained both
a list of decisional factors and a statement as to how the absence of a
decisional factor would be treated. Therefore, we created new
Sec. Sec. 890.1013(b) and 1016(c) to address the impact of an absence
of decisional factors, leaving Sec. Sec. 890.1013(a) and 1016(a) and
(b) to contain solely a list of factors. To accommodate pre-existing
sections, we renumbered the former Sec. 890.1013(b) as 1013(c).
Purpose and Effect of Administrative Sanctions
Before analyzing the public comments that focused on specific
sections of the proposed rule, we want to address several generalized
concerns expressed by the professional organizations regarding the
overall intent and possible effect of the FEHBP administrative
sanctions program. Both of the organizations indicated that their
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membership would consider administrative sanctions as ``punitive''
measures. They further commented that the statutory sanctions authority
would ``perpetuate a gotcha [sic] mentality'' on OPM's part toward
health care providers, leading to severe penalties for essentially
innocent matters such as inadvertent billing errors or similar mistakes
resulting from lack of knowledge of FEHBP program requirements.
We understand that health care providers may inevitably view
administrative sanctions with some level of concern. However, there is
simply no factual basis for the belief that OPM will operate any aspect
of the sanctions program in a manner that would be confrontational or
hostile toward providers. OPM has conducted an administrative sanctions
program under the authority of the Governmentwide Nonprocurement
Debarment and Suspension Common Rule (``common rule'') since May 1993.
During these 9 years, OPM has debarred over 21,000 health care
providers, and has maintained a professional and impartial approach to
sanctions operations.
While the statutory sanctions authority being implemented by these
regulations is broader than the common rule, the actual approach to
sanctions decisionmaking is more objective and offers greater
procedural protections to the affected health care providers. The FEHBP
administrative sanctions law contains 18 bases for debarment, each
involving either a previously adjudicated violation, an association
between a provider and a previously-sanctioned person or entity, or
specific actionable conduct by a provider. Sanctions based on conduct
that has not been previously adjudicated carry a statutory requirement
that the provider knew or should have known the wrongfulness of his or
her actions. In this context, we believe it is clear that OPM cannot
impose sanctions for bona fide errors or mistakes.
The sanctions that may be imposed under these regulations do not
constitute punishment as that term is recognized by the law. A line of
Supreme Court cases has definitively established that administrative
sanctions such as debarment and civil monetary penalties are not
``punitive'' for Eighth Amendment or double jeopardy purposes unless
the legislature intended them to be criminal measures. The leading
current case in this line, Hudson v. United States, 522 U.S. 93 (1997),
notes that even sanctions that might, ``in common parlance, be
described as punishment,'' are appropriately characterized as
administrative in nature if Congress enacted them to be civil, rather
than criminal, remedies. There is no question that the FEHBP
administrative sanctions law was intended to be a civil statute, and in
fact the administrative sanctions it authorizes are no more severe--and
in some contexts are less stringent--than the corresponding health care
provider sanctions under Medicare law.
Further, OPM's responsibility is to implement the statute
consistent with the legislative intent and purpose. In this context,
OPM's principal operating challenge--as is the case for other Federal
agencies using sanctions authorities--will be to focus its efforts so
as to afford an optimal level of protection to FEHBP in the most
efficient manner possible. Hostile, antagonistic, or confrontational
activities aimed at providers would clearly be improper, incompatible
with the statute and these regulations, and detrimental to the intended
protective purposes of the sanctions themselves. We expect that our
implementation of these regulations will demonstrate that
administrative sanctions in fact support high standards of professional
conduct and ethical business practices by holding those who commit
violations accountable for their actions.
Suggestions Regarding Unrelated Legislation
One of the professional organizations suggested that we rewrite the
proposed regulations to incorporate the principles of the Medicare
Education and Regulatory Fairness Act of 2001 (MERPA), introduced in
the 107th Congress as H.R. 868 and S. 452, and reissue the resultant
product as a proposed regulation for further comment. As characterized
by the professional organization, MERPA would require the Department of
Health and Human Services (DHHS) to emphasize educating health care
providers about program requirements and to simplify ``complex legal
and regulatory requirements'' rather than imposing ``punitive
enforcement actions'' against providers. MERPA's preamble indicates
that many physicians are leaving the Medicare program, due to the risks
of ``aggressive government investigation,'' thus compromising the
availability of health care for Medicare patients.
We believe the professional organization's suggestion is
inappropriate in the context of these regulations. Congress enacted the
administrative sanctions provisions of Pub. L. 105-266 to meet the
needs of the FEHBP for an effective and efficient means of addressing
integrity issues associated with certain types of provider-related
violations. We note that MERPA's stated objectives do not appear to be
germane to FEHBP operations. For example, Medicare's regulatory and
billing practices do not apply to FEHBP, and FEHBP has not experienced
declining provider participation. In this context, we do not believe
that MERPA's principal ``instructional'' feature--a system of binding
advisory opinions on the allowability of specific claims--would be
necessary or relevant to providers' relationships with the FEHBP claims
system.
The remainder of the comments we received dealt with specific
regulatory provisions or issues. We address each of them in the
following sections of this preamble.
Informing Providers of Sanctions Action
The health care provider professional organizations suggested that
the proposed Sec. 890.1006(c)(2) and (3), authorizing OPM to issue
notices of proposed debarment via facsimile transmission (fax) or e-
mail, were not in compliance with the terms of 5 U.S.C. 8902a. The same
commenters also remarked that the provisions of the proposed Sec.
890.1006(e), authorizing OPM to presume that providers have received a
notice 5 days after it was sent, are ``irresponsible'' and deprive
providers of their due process entitlement to adequate notice. The
commenters recommended that Sec. 890.1006(e) be changed to require OPM
to obtain actual proof that a provider has received notice before
taking debarment action.
The intent of the proposed Sec. 890.1006(c)(2) and (3) was to make
communication with persons affected by sanctions actions faster and
more reliable, especially as heightened security measures have slowed
the delivery of postal mail to many Federal agencies. Similar
electronic notification provisions appear in the proposed revision to
the common rule, which was issued as a notice of proposed rulemaking in
the January 23, 2002, Federal Register (67 FR 3266). The common rule
revision was developed by the Interagency Suspension and Debarment
Committee at the request of the Office of Management and Budget.
However, as reflected by the commenter's concerns, questions remain as
to the acceptability of electronic media for communicating official
notices. After consultation with the Interagency Suspension and
Debarment Committee, we concluded
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that this issue would be more appropriately determined in the
Governmentwide forum of the proposed common rule. Therefore, we
modified the proposed Sec. 890.1006(c) to delete any mention of
electronic transmission of notice, and we have specifically reserved a
new section Sec. 890.1006(g) to address the ``e-notices'' if they are
ultimately adopted in the final version of the revised common rule. In
the interim, we intend to continue our practice of using electronic
means to communicate material other than official debarment notices
when providers furnish us a fax number or e-mail address.
In regard to the comments on the proposed Sec. 890.1006(e),
presumption of receipt of official notice is a well-established aspect
of Federal regulatory practice. For example, the common rule has
contained such a provision since it was first issued in 1988. In
addition, the Department of Health and Human Services (DHHS) relies
upon 5-day presumption of receipt provisions for its official notices
of provider exclusions in the Medicare program (see 42 CFR 1001.2001).
Further, the burden of operating an ``actual notice'' system, in terms
of cost, staff time, and prolonged processing timeframes for
debarments, is highly problematic. Given these factors, we believe that
a notice system based on regular first class mail with a regulatory
presumption of receipt represents a reasonable model for transmitting
debarment notices to providers. We would also point out that Sec.
890.1006(e) should be read in conjunction with Sec. 890.1006(f), which
requires OPM to make appropriate followup efforts to secure delivery of
notice if it learns that a notice cannot be delivered as originally
addressed. Taken together, these provisions offer a high level of
assurance that providers will receive notices in a timely manner, while
permitting OPM the flexibility to implement debarments promptly.
Effective Date of Debarment Orders
The health care provider professional associations expressed
concern that the proposed Sec. 890.1009 specified that debarments
taken under mandatory debarment authorities would go into effect when
issued by OPM, and remain in effect during the pendency of judicial
appeals. They characterized this provision as ``a severe penalty'' for
health care providers whose debarments may be reversed on appeal, and
suggested that OPM defer the effective date of debarments until after
all administrative and judicial appeals have been completed.
The commenters' concerns touch upon two separate but related issues
that we believe are essential to effective implementation of the
statutory debarment authorities. The first of these involves OPM's
ability to effectuate debarments in a timely manner. As noted in the
``Background'' section of the Supplementary Information accompanying
the proposed rule (66 FR 64160), Pub. L. 105-266 amended an earlier
(1988) FEHBP sanctions statute that had proved to be ``costly and
unworkable,'' primarily because of its requirement that OPM debarment
orders not go into effect until all administrative and judicial appeal
avenues to challenge those debarments had been exhausted. This deprived
OPM's sanctions decisions of meaningful finality and invited delay and
expense through protracted litigation. Pub. L. 105-266 addressed the
problem by providing OPM with regulatory authority to establish
effective dates of debarments. In implementing this authority (Sec.
890.1009 for mandatory debarments and Sec. 890.1026 for permissive
debarments), OPM decided to make debarments effective immediately upon
completion of the administrative appeals process, or, if a provider
does not file an administrative appeal, immediately upon expiration of
the 30-day notice period for a proposed debarment. OPM will keep
debarments in effect while providers exercise their statutory right of
appeal to U.S. district court. OPM would, of course, stay the
implementation of a debarment during a judicial appeal if ordered to do
so by the court.
The other issue raised by this comment is whether a basis for
debarment that involves a conviction is affected by a provider's appeal
of the conviction. The FEHBP debarment statute addresses this in 5
U.S.C. 8902a(a)(1)(C), which specifies that a ``conviction'' exists
``without regard to the pendency or outcome of any appeal (other than a
judgment of acquittal based on innocence) or request for relief.'' The
purpose of this provision is to keep a mandatory debarment continuously
in effect during subsequent litigation unless a final appellate ruling
reverses or vacates the conviction and there is no longer a possibility
of a retrial.
As part of our overall rewriting of the regulation, we replaced the
definition of ``conviction'' in Sec. 890.1003, which was a direct
restatement of the statutory language of 5 U.S.C. 8902a(a)(1)(C), with
a citation to the statutory provision. This means that a conviction, as
a basis for a mandatory debarment, comes into effect immediately upon
adjudication and remains in effect during all subsequent litigation. To
reflect the impact of 5 U.S.C. 8902a(a)(1)(C) on reinstatement of a
provider, we have also added a citation to this provision in Sec.
890.1052(a).
Inasmuch as the regulatory provisions criticized by the commenters
directly implement the provisions of Public Law 105--266 that authorize
OPM to effectuate debarments, notwithstanding the pendency of judicial
appeals, we are not adopting the commenters' recommendations.
Aggravating and Mitigating Factors
One of the professional associations observed that a serious
inequity appears to exist between the respective lists of aggravating
and mitigating factors in the proposed Sec. Sec. 890.1008 and 1016.
The commenter stated that the aggravating factors are ``open-ended,''
while the mitigating factors are strictly limited to the items listed.
Further, the commenter noted that neither the aggravating nor
mitigating factors recognize restitution a provider may have made for
incorrect, improper, or wrongful receipt of Federal funds.
The proposed Sec. 890.1008 identifies the aggravating and
mitigating factors that the debarring official must consider in
determining the proposed length of a mandatory debarment. The proposed
Sec. 890.1016 contains an essentially identical list for permissive
debarments. We believe the aggravating and mitigating factors
identified in the regulation are equitable and appropriately recognize
matters relevant to the violation for which a sanction is being
proposed. In our estimation, a reasonable reading of Sec. Sec.
890.1008 and 1016 simply does not support the commenter's
interpretation that the aggravating factors are broad and ambiguous
while the mitigating factors are narrowly drawn. The lists of factors
in each regulatory provision represent the factors that the debarring
official may consider as aggravating and mitigating, respectively, in
determining the proposed length of a proposed debarment. Neither list
contains a ``catch-all'' provision to authorize consideration of other
factors on an ad hoc basis.
It should be noted, moreover, that the final length of a debarment
is not based solely on these factors. After being notified of a
proposed debarment and its proposed length, the provider has the
opportunity to challenge them in an administrative proceeding under the
provisions of Sec. Sec. 890.1022--1029. Decisions regarding the length
of debarments are discretionary with the debarring official in every
case, and a
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provider's ability to contest the proposed length of his or her
debarment is not limited in any way by the aggravating and mitigating
factors listed in Sec. Sec. 890.1008 and 1016.
In regard to the treatment of restitution by these regulations, the
professional organization posed a hypothetical example involving
restitution of amounts received by a provider because of a ``billing
error.'' This example reflects an inaccurate premise. In fact, receipt
of an incorrect payment of FEHBP funds due to a bona fide billing error
is not a sanctionable violation, and these regulations would not apply
in such a situation. However, if a provider receives payments of FEHBP
funds because of false, fraudulent, deceptive, or otherwise wrongful
claims that form the basis for a debarment, Sec. Sec. 890.1008 and
1016 authorize the debarring official to consider the resultant
financial loss to the Government as an aggravating factor. Because the
actual amount of the improper payments reflects the seriousness of the
provider's violation, the regulations do not provide for crediting any
post-violation restitution in calculating the amount of the financial
loss. However, it is appropriate to recognize restitution made as part
of a provider's post-violation cooperation with law enforcement
authorities under the mitigating factors in Sec. Sec. 890.1008(b)(3)
and 1016(b)(1). To the extent that the proposed regulation may not have
clearly conveyed this meaning, we have reworded both Sec. Sec.
890.1008 and 1016 to reflect unambiguously that restitution is an
aspect of cooperation with law enforcement authorities that may be
considered mitigating for purposes of computing a proposed period of
debarment.
Length of Permissive Debarments
One of the professional organizations commented that the wording of
the proposed 890.1015 was inconsistent with the underlying statutory
provisions, to the extent that it could restrict the discretion of the
debarring official in setting the length of debarments under permissive
debarment authorities. In every case based on a permissive debarment
authority, Public Law 105-266 allows the debarring official full
discretion to debar or not debar, and, if he elects to debar, to set
the period of the debarment without limitations as to length.
While we did not intend the proposed Sec. 890.1015 to establish a
mandatory minimum debarment period for permissive debarments, nor to
limit the debarring official's discretion in any other way, we agree
with the commenter's observation that the proposed wording invited such
an interpretation. Accordingly, we have revised Sec. 890.1015 to
clarify that the debarring official possesses full discretionary
decisionmaking authority to establish the length of permissive
debarments in every case.
Matters To Be Treated as Prior Adjudications
The proposed Sec. 890.1025 sets forth the criteria which the
debarring official will use to determine if OPM must conduct a fact-
finding hearing to resolve a provider's administrative appeal of a
debarment. Public Law 105-266 requires that every material fact on
which a debarment is based be adjudicated in an appropriate
administrative proceeding. However, OPM will not readjudicate facts
determined in prior due process proceedings, such as criminal or civil
actions or professional licensure actions, or facts to which the
provider stipulated. Both professional associations objected to the
wording of the proposed Sec. 890.1025(a)(4), which would treat
settlement agreements entered into by a provider to resolve civil or
administrative actions as tantamount to adjudications, even if they
contain no factual stipulations or admissions. Although the commenters
did not so indicate, identical language also appeared in the proposed
Sec. 890.1037(a), regarding prior adjudications in the context of
administrative appeals of suspensions. We agree with the commenters
that these passages are inconsistent with the current state of the law.
Therefore, we have modified the final text of both Sec. Sec.
890.1025(a)(4) and 890.1037(a) to indicate that settlement agreements
may be deemed to be waivers of adjudication only if they contain
stipulations of facts establishing that a sanctionable violation
occurred.
Informing FEHBP Enrollees about Provider Debarments
The proposed Sec. 890.1045 required FEHBP carriers to notify their
enrollees who have previously obtained items or services from a
debarred provider of the provider's debarment, and specified certain
items of information that must be included in the notification. An
FEHBP carrier and the health insurance industry association both
suggested that this section be modified to require debarred providers
to notify the FEHBP enrollees with whom they deal of their debarment.
This would relieve the carriers of the effort and cost associated with
the notification responsibility.
OPM does not have statutory authority to directly regulate provider
conduct in this manner. In fact, the proposed Sec. 890.1045 was drawn
directly from 5 U.S.C. 8902a(j), which requires OPM to issue
regulations placing responsibility on the FEHBP carriers for informing
enrollees of provider debarments. Therefore, we are not adopting this
recommendation.
As an alternate suggestion, the health insurance industry
association recommended that, if carriers must inform enrollees of
provider debarments, the proposed Sec. 890.1045 be modified to permit
carriers to target their notifications in some manner. The literal
wording of Sec. 890.1045 would have required carriers to notify all
enrollees who had ever received items or services from a debarred
provider, but the commenter suggested that such a practice would
involve excessive time and expense. Instead, the industry association
suggested targeting notices to enrollees who have (1) incurred claims
with providers that OPM deemed to present a risk to FEHBP members or
(2) recently received services from debarred providers.
We believe this comment is well-founded. Our experience under the
common rule has revealed that early enrollee notification is absolutely
vital to carrying out the purpose of debarments. This is even more
clearly the case under these regulations, because 5 U.S.C. 8902a(j)
requires enrollee claims for items or services furnished by a debarred
provider to be paid by FEHBP carriers if the enrollee was unaware of
the provider's debarment. Since FEHBP enrollees generally need no prior
approval or clearance to obtain covered services from a health care
provider, they create an obligation on the part of their FEHBP carrier
to pay claims simply by receiving such services. Well-targeted notice
to potential patients regarding the debarment of a provider appears to
be the most efficient means of reducing the incidence of enrollee
contact with debarred providers.
Of the targeting criteria suggested by the industry association, we
do not believe that we would consistently have sufficient information
to reliably designate certain providers as ``high risk.'' Further, such
a practice could be perceived by providers as carrying a potentially
stigmatizing effect beyond the reasonable needs of the sanctions
process. In contrast, notifying enrollees who have recently obtained
items and services from debarred providers appears to offer a
reasonable approach to diminishing FEHBP payments to those providers,
without the risk of
[[Page 5474]]
prejudicially labeling them. Accordingly, we have accepted this aspect
of the industry association's suggestion--including the one year
recency criterion--and have reworded Sec. 890.1045 to require FEHBP
carriers to notify enrollees who have obtained items or services from a
debarred provider within one year prior to the provider's debarment.
The insurance industry association further suggested that we create
a website to provide FEHBP carriers and enrollees with up-to-date
information on provider debarments, and that we reflect this action in
the proposed Sec. 890.1044. For nearly 2 years, OPM's Office of the
Inspector General has used a secure Internet webpage to make debarment
data available to FEHBP carriers. We update the page regularly,
according to a schedule known to the carriers. Because of the extensive
amount of Privacy Act-protected information about providers that we
furnish to carriers, this webpage cannot be publicly accessible.
However, the function of making debarment information from all agencies
available to the public in an automated, searchable format is met by
the General Services Administration's Governmentwide debarment list
(``GSA List''), which is on the Internet at www.epls.com. There are
links directly to the GSA List from OPM's website (www.opm.gov). In its
present form, Sec. 890.1044 accurately reflects OPM's responsibilities
to make debarment-related information available both to carriers and to
the GSA List. Therefore, while we will not be adopting this suggestion,
information about OPM debarments is readily available online for both
FEHBP carriers and the public.
Authority to Issue Suspensions
One of the professional associations commented that Public Law 105-
266 did not appear to provide OPM the authority to suspend health care
providers. Therefore, the commenter recommended that all of the
proposed provisions regarding suspension (proposed Sec. Sec. 890.1030-
1041) be removed from the final rule.
While Public Law 105-266 does not contain the term ``suspension,''
it does provide authority for OPM to issue the type of sanctions that
are characterized as suspensions in the proposed 890.1030-1041. We
designated these actions ``suspensions'' because that terminology is
widely used among Federal agencies--including OPM under the common rule
authority--to connote sanctions with certain effects. As used in these
regulations, ``suspension'' connotes a short-term action with the force
of a debarment that is (1) effective immediately upon issuance of
notice by OPM, (2) predicated on one or more of the bases for debarment
identified in Public Law 105-266, and (3) necessitated by the existence
of a sufficiently serious risk to warrant removing a provider from
participating in FEHBP in the most expeditious manner possible. OPM's
ability to regulate in this area is based on 5 U.S.C. 8902a(g)(1)(A),
authorizing the agency to set reasonable conditions regarding notice to
providers and effective dates of debarments, and 5 U.S.C.
8902a(g)(1)(B), authorizing OPM to establish effective dates in advance
of process if warranted by the ``health or safety of individuals
receiving health care services.''
In drafting the sections of these regulations implementing the
provider suspension authority, we attempted to incorporate existing
Governmentwide practices as extensively as possible. The two most
frequently used suspension models are represented by the Federal
Acquisition Regulation (FAR) and the common rule. However, the FAR
approach, providing for automatic and immediate suspension upon
issuance of every notice of proposed debarment, is clearly beyond the
scope of the authority granted by 5 U.S.C. 8902a. In contrast, the
common rule approach, selectively limiting suspension to situations
where there is a tangible need to protect a program or program
participants, closely tracks the provisions of the FEHBP sanctions
statute that authorize suspension. Therefore, Sec. Sec. 890.1030
through 1041 set forth procedures which generally mirror the
corresponding common rule practices for suspensions. The administrative
appeal provisions of Sec. Sec. 890.1035[n'dash]1041 offer greater
procedural protections to affected providers than those contained in
the common rule. Their purpose is to assure that all suspended
providers have the right to contest the suspension promptly, as
required by 5 U.S.C. 8902a(h)(1), including a personal appearance
before the suspending official and a separate hearing on any facts
material to the suspension that have not previously been adjudicated.
Based on the commenter's observations, we have also revised the
wording of Sec. 890.1031(c) to conform more closely to the terms of 5
U.S.C. 8902a(g)(1)(B), limiting suspensions to cases of risk to the
health or safety of FEHBP enrollees. However, we will construe such
risk to include not only physical harm resulting from a provider's
maltreatment or abuse, but also the more generalized risks inherent in
receiving health care from a provider who has committed any sort of
sanctionable violations that reflect on his or her trustworthiness.
Miscellaneous Provisions Addressed by Outside Commenters
The health care provider professional associations expressed
concerns that several provisions of the proposed regulations broadened
the reach of OPM's administrative sanctions authority in a manner that
was unfair to health care providers. The commenters suggested that
these provisions be deleted from the proposed regulations.
In fact, each of the proposed regulatory sections identified by the
commenters is based directly on a provision of the FEHBP sanctions
statute. Collectively, their placement in these regulations is
necessary to assure full implementation of the statute. Therefore, we
are retaining all of these sections in the final regulation. However,
our overall rewriting of the regulatory text has substantially altered
their wording and format. As they appeared in the proposed rule, each
of the regulatory sections cited by the commenters comprised a
restatement of a statutory provision. As rewritten in the final rule,
each section simply provides a citation to the corresponding section of
the statute. The regulatory provisions in question are as follows:
(1) Proposed Sec. 890.1003(e)(4), defining ``conviction'' to
include an individual's participation in first offender, pre-trial
diversion, or other programs under which a formal adjudication of an
offense is withheld. The commenters considered this definition to be
``overly broad,'' so as to include any infraction, including an
inadvertent billing error. As we have previously noted in this
preamble, we intended the regulatory definition of ``conviction'' to
correspond precisely to the statutory definition of that term set forth
in 5 U.S.C. 8902a(a)(1)(C). As now rewritten, the definition of
``conviction'' appearing in Sec. 890.1003 of the final rule simply
cites to 5 U.S.C. 8902a(a)(1)(C). The exact wording identified as
objectionable by the commenter is contained in 8902a(a)(1)(C)(iv).
Further, as we have stated elsewhere in this preamble, we do not
believe that a reasonable reading of the statutory definition of
``conviction,'' or indeed any other provision of the FEHBP sanctions
statute, would support the conclusion that a truly inadvertent provider
error could be the basis of a sanctions action.
(2) Proposed Sec. 890.1011(b)(1)(iii), authorizing permissive
debarment of an entity based on an ownership or control interest by a
provider who has been
[[Page 5475]]
assessed a civil monetary penalty under the FEHBP sanctions statute.
One commenter expressed the belief that this provision ``creates
serious opportunities for abuse.'' However, this proposed regulatory
section directly restated the provisions of 5 U.S.C. 8902a(c)(2). The
rewritten Sec. 890.1011(b) simply cites the statutory provisions
authorizing debarment based on ownership or control interests--5 U.S.C.
8902a(c)(2) and (3)--thus removing a substantial amount of unnecessary
text without altering the intent or effect of the provision.
(3) Proposed Sec. 890.1011(b)(2), authorizing permissive debarment
of an individual provider who holds an ownership or control interest in
an entity that has been debarred, convicted of a sanctionable offense,
or assessed a civil monetary penalty under the FEHBP provider sanctions
statute, if the individual knew or should have known of the entity's
violations. One commenter characterized this provision as ``even more
offensive'' than the proposed Sec. 890.1011(b)(1). In fact, this
regulatory provision directly restates the provisions of 5 U.S.C.
8902a(c)(3). As noted in the preceding paragraph, we have revised the
proposed Sec. 890.1011(b) to consist simply of a reference to the
statutory provisions authorizing debarment based on ownership and
control interests, without restating the rather lengthy statutory text.
(4) Proposed Sec. 890.1011(c), authorizing permissive debarment
for certain enumerated claims-related violations. One commenter
suggested that this provision would permit debarment based on ``a
single billing error.'' In the proposed rule, Sec. 890.1011(c)
restated the statutory wording of the seven bases for permissive
debarment established by 5 U.S.C. 8902a(c)(4) and (5) and (d)(1) and
(2). As reworded in the final rule, Sec. 890.1011(c) consists simply
of a citation to those sections of the statute. Once again, we would
note that a careful reading of these regulations and FEHBP sanctions
law does not support the conclusion that a good faith error could be
the basis for a sanctions action.
(5) Proposed Sec. 890.1011(d), authorizing permissive debarment
for a provider's failure to furnish claims-related information
requested by OPM or an FEHBP carrier. While the commenter did not
indicate the precise nature of its objection to this provision, in fact
the cited passage in the proposed rule directly restated 5 U.S.C.
8902a(d)(3). As it appears in the final rule, Sec. 890.1011(d)
consists only of a citation to that statutory provision.
Miscellaneous Revisions Identified by OPM Comments
As the result of comments from OPM sources, we have slightly
modified the following sections of the regulatory package.
(1) The proposed Sec. Sec. 890.1005 and 1012 address
implementation of the 6-year statutory limitations period for mandatory
and permissive debarments, respectively. In each section, we have
replaced every instance of the phrase ``issue * * * a notice of
proposed debarment'' with ``send * * * a notice of proposed
debarment.'' The term ``send'' is used uniformly in proposed Sec.
890.1006 to denote transmission of official notice, and its
corresponding use in Sec. Sec. 890.1005 and 1012 clarifies that the
limitations period is tolled when OPM places a notice of proposed
debarment into the transmission channels authorized by Sec. 890.1006.
(2) The proposed Sec. 890.1028(d) describes the manner in which
OPM will create an official record of fact-finding hearings associated
with permissive debarments. In preparing the regulatory text for the
proposed rule, we inadvertently omitted from this section a phrase
requiring OPM to furnish the provider with a free copy of an audio
recording of the hearing. We have restored that intended wording in the
final rule. Further, we have changed the final sentence of Sec.
890.1028(d) to indicate that OPM will arrange for transcription of the
recording if the provider requests it, but that the provider must pay
the cost of the transcription.
(3) The proposed Sec. 890.1052(a) addressed the procedures for
reinstating providers whose debarments were based on convictions that
have been reversed on appeal. An OPM reviewer noted that the proposed
wording of this section did not account for the full statutory
definition of ``conviction'' in 5 U.S.C. 8902a(a)(1)(C), which
indicates that a provider is considered to have been convicted
``without regard to the pendency or outcome of any appeal.'' Upon a
literal reading, this passage would seem to support the interpretation
that a provider remains convicted--and thus debarred--even if an
appeals court reverses or vacates the conviction on which the debarment
is based. However, such an interpretation would clearly produce
anomalous results.
The actual intent of the statutory wording is to permit a mandatory
debarment to remain in effect until the appeals process, including
possible retrials, has concluded. This avoids the possibility of
sequential retractions and reinstatements of debarments which could
result from differing appeals court rulings as a case progresses
through the appeals process. Therefore, as noted elsewhere in this
preamble, we have expanded the wording of Sec. 890.1052(a) to reflect
that OPM will reinstate a provider on the basis of a reversed
conviction only if a final appeals ruling has been issued and there is
no further possibility of a retrial or if an appeals court enters a
judgment of acquittal based on the provider's innocence.
(4) We added a definition of ``days'' in Sec. 890.1003 to support
the distinction between the ``calendar day'' timeframes applied to most
deadlines established by the regulation and the ``business day''
timeframe associated with presumed receipt of notices of proposed
sanctions under Sec. 890.1006(e)(2).
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities, because it affects
only health care providers' transactions with the Federal Employees
Health Benefits Program.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Part 890
Administrative practice and procedure, Government employees, Health
facilities, Health insurance, Health professions, Hostages, Iraq,
Kuwait, Lebanon.
Office of Personnel Management.
Kay Coles James,
Director.
Accordingly, OPM is amending part 890 of title 5, Code of Federal
Regulations as follows:
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
1. The authority citation for part 890 is revised to read as
follows:
Authority: 5 U.S.C. 8913; Sec. 890.803 also issued under 50
U.S.C. 403(p), 22 U.S.C. 4069c and 4069c-1; subpart L also issued
under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended;
Sec. 890.102 also issued under sections 11202(f), 11232(e),
11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721
of Pub. L. 105-261, 112 Stat. 2061, unless otherwise noted.
2. Subpart J of part 890 is revised to read as follows:
[[Page 5476]]
Subpart J--Administrative Sanctions Imposed Against Health Care
Providers
Sec.
General Provisions and Definitions
890.1001 Scope and purpose.
890.1002 Use of terminology.
890.1003 Definitions.
Mandatory Debarments
890.1004 Bases for mandatory debarments.
890.1005 Time limits for OPM to initiate mandatory debarments.
890.1006 Notice of proposed mandatory debarment.
890.1007 Minimum length of mandatory debarments.
890.1008 Mandatory debarment for longer than the minimum length.
890.1009 Contesting proposed mandatory debarments.
890.1010 Debarring official's decision of contest.
Permissive Debarments
890.1011 Bases for permissive debarments.
890.1012 Time limits for OPM to initiate permissive debarments.
890.1013 Deciding whether to propose a permissive debarment.
890.1014 Notice of proposed permissive debarment.
890.1015 Minimum and maximum length of permissive debarments.
890.1016 Aggravating and mitigating factors used to determine the
length of permissive debarments.
890.1017 Determining length of debarment based on revocation or
suspension of a provider's professional licensure.
890.1018 Determining length of debarment for an entity owned or
controlled by a sanctioned provider.
890.1019 Determining length of debarment based on ownership or
control of a sanctioned entity.
890.1020 Determining length of debarment based on false, wrongful,
or deceptive claims.
890.1021 Determining length of debarment based on failure to furnish
information needed to resolve claims.
890.1022 Contesting proposed permissive debarments.
890.1023 Information considered in deciding a contest.
890.1024 Standard and burden of proof for deciding contests.
890.1025 Cases where additional fact-finding is not required.
890.1026 Procedures if a fact-finding proceeding is not required.
890.1027 Cases where an additional fact-finding proceeding is
required.
890.1028 Conducting a fact-finding proceeding.
890.1029 Deciding a contest after a fact-finding proceeding.
Suspension
890.1030 Effect of a suspension.
890.1031 Grounds for suspension.
890.1032 Length of suspension.
890.1033 Notice of suspension.
890.1034 Counting a period of suspension as part of a subsequent
debarment.
890.1035 Provider contests of suspensions.
890.1036 Information considered in deciding a contest.
890.1037 Cases where additional fact-finding is not required.
890.1038 Deciding a contest without additional fact-finding.
890.1039 Cases where additional fact-finding is required.
890.1040 Conducting a fact-finding proceeding.
890.1041 Deciding a contest after a fact-finding proceeding.
Effect of Debarment
890.1042 Effective dates of debarments.
890.1043 Effect of debarment on a provider.
Notifying Outside Parties about Debarment and Suspension Actions
890.1044 Entities notified of OPM-issued debarments and suspensions.
890.1045 Informing persons covered by FEHBP about debarment or
suspension of their provider.
Exceptions to the Effect of Debarments
890.1046 Effect of debarment on payments for services furnished in
emergency situations.
890.1047 Special rules for institutional providers.
890.1048 Waiver of debarment for a provider that is the sole source
of health care services in a community.
Special Exceptions to Protect Covered Persons
890.1049 Claims for non-emergency items or services furnished by a
debarred provider.
890.1050 Exception to a provider's debarment for an individual
enrollee.
Reinstatement
890.1051 Applying for reinstatement when period of debarment
expires.
890.1052 Reinstatements without application.
890.1053 Table of procedures and effective dates for reinstatements.
890.1054 Agencies and entities to be notified of reinstatements.
890.1055 Contesting a denial of reinstatement.
Civil Monetary Penalties and Financial Assessments
[Reserved]
Subpart J--Administrative Sanctions Imposed Against Health Care
Providers
Authority: 5 U.S.C. 8902a.
General Provisions and Definitions
Sec. 890.1001 Scope and purpose.
(a) Scope. This subpart implements 5 U.S.C. 8902a, as amended by
Public Law 105-266 (October 19, 1998). It establishes a system of
administrative sanctions that OPM may, or in some cases, must apply to
health care providers who have committed certain violations. The
sanctions include debarment, suspension, civil monetary penalties, and
financial assessments.
(b) Purpose. OPM uses the authorities in this subpart to protect
the health and safety of the persons who obtain their health insurance
coverage through the FEHBP and to assure the financial and programmatic
integrity of FEHBP transactions.
Sec. 890.1002 Use of terminology.
Unless otherwise indicated, within this subpart the words ``health
care provider,'' ``provider,'' and ``he'' mean a health care
provider(s) of either gender or as a business entity, in either the
singular or plural. The acronym ``OPM'' and the pronoun ``it'' connote
the U.S. Office of Personnel Management.
Sec. 890.1003 Definitions.
In this subpart:
Carrier means an entity responsible for operating a health benefits
plan described by 5 U.S.C. 8903 or 8903a.
Community means a geographically-defined area in which a provider
furnishes health care services or supplies and for which he may request
a limited waiver of debarment in accordance with this subpart. Defined
service area has the same meaning as community.
Contest means a health care provider's request for the debarring or
suspending official to reconsider a proposed sanction or the length or
amount of a proposed sanction.
Control interest means that a health care provider:
(1) Has a direct and/or indirect ownership interest of 5 percent or
more in an entity;
(2) Owns a whole or part interest in a mortgage, deed of trust,
note, or other obligation secured by the entity or the entity's
property or assets, equating to a direct interest of 5 percent or more
of the total property or assets of the entity;
(3) Serves as an officer or director of the entity, if the entity
is organized as a corporation;
(4) Is a partner in the entity, if the entity is organized as a
partnership;
(5) Serves as a managing employee of the entity, including but not
limited to employment as a general manager, business manager,
administrator, or other position exercising, either directly or through
other employees, operational or managerial control over the activities
of the entity or any portion of the entity;
(6) Exercises substantive control over an entity or a critical
influence over the activities of the entity or some portion of thereof,
whether or not employed by the entity; or
[[Page 5477]]
(7) Acts as an agent of the entity.
Conviction or convicted has the meaning set forth in 5 U.S.C.
8902a(a)(1)(C).
Covered individual means an employee, annuitant, family member, or
former spouse covered by a health benefits plan described by 5 U.S.C.
8903 or 8903a or an individual eligible to be covered by such a plan
under 5 U.S.C. 8905(d).
Days means calendar days, unless specifically indicated otherwise.
Debarment means a decision by OPM's debarring official to prohibit
payment of FEHBP funds to a health care provider, based on 5 U.S.C.
8902a (b), (c), or (d) and this subpart.
Debarring official means an OPM employee authorized to issue
debarments and financial sanctions under this subpart.
FEHBP means the Federal Employees Health Benefits Program.
Health care services or supplies means health care or services and
supplies such as diagnosis and treatment; drugs and biologicals;
supplies, appliances and equipment; and hospitals, clinics, or other
institutional entities that furnish supplies and services.
Incarceration means imprisonment, or any type of confinement with
or without supervised release, including but not limited to home
detention, community confinement, house arrest, or similar
arrangements.
Limited waiver means an approval by the debarring official of a
health care provider's request to receive payments of FEHBP funds for
items or services rendered in a defined geographical area,
notwithstanding debarment, because the provider is the sole community
provider or sole source of essential specialized services in a
community.
Mandatory debarment means a debarment based on 5 U.S.C. 8902a(b).
Office or OPM means the United States Office of Personnel
Management or the component thereof responsible for conducting the
administrative sanctions program described by this subpart.
Permissive debarment means a debarment based on 5 U.S.C. 8902a(c)
or (d).
Provider or provider of health care services or supplies means a
physician, hospital, clinic, or other individual or entity that,
directly or indirectly, furnishes health care services or supplies.
Reinstatement means a decision by OPM to terminate a health care
provider's debarment and to restore his eligibility to receive payment
of FEHBP funds.
Sanction or administrative sanction means any administrative action
authorized by 5 U.S.C. 8902a or this subpart, including debarment,
suspension, civil monetary penalties, and financial assessments.
Should know or should have known has the meaning set forth in 5
U.S.C. 8902a(a)(1)(D).
Sole community provider means a provider who is the only source of
primary medical care within a defined service area.
Sole source of essential specialized services in a community means
a health care provider who is the only source of specialized health
care items or services in a defined service area and that items or
services furnished by a non-specialist cannot be substituted without
jeopardizing the health or safety of covered individuals.
Suspending official means an OPM employee authorized to issue
suspensions under 5 U.S.C. 8902a and this subpart.
Mandatory Debarments
Sec. 890.1004 Bases for mandatory debarments.
(a) Debarment required. OPM shall debar a provider who is described
by any category of offense set forth in 5 U.S.C. 8902a(b).
(b) Direct involvement with an OPM program unnecessary. The conduct
underlying the basis for a provider's mandatory debarment need not have
involved an FEHBP covered individual or transaction, or any other OPM
program.
Sec. 890.1005 Time limits for OPM to initiate mandatory debarments.
OPM shall send a provider a written notice of a proposed mandatory
debarment within 6 years of the event that forms the basis for the
debarment. If the basis for the proposed debarment is a conviction, the
notice shall be sent within 6 years of the date of the conviction. If
the basis is another agency's suspension, debarment, or exclusion, the
OPM notice shall be sent within 6 years of the effective date of the
other agency's action.
Sec. 890.1006 Notice of proposed mandatory debarment.
(a) Written notice. OPM shall inform a provider of his proposed
debarment by written notice sent not less than 30 days prior to the
proposed effective date.
(b) Contents of the notice. The notice shall contain information
indicating the:
(1) Effective date of the debarment;
(2) Minimum length of the debarment;
(3) Basis for the debarment;
(4) Provisions of law and regulation authorizing the debarment;
(5) Effect of the debarment;
(6) Provider's right to contest the debarment to the debarring
official;
(7) Provider's right to request OPM to reduce the length of
debarment, if it exceeds the minimum period required by law or this
subpart; and
(8) Procedures the provider shall be required to follow to apply
for reinstatement at the end of his period of debarment, and to seek a
waiver of the debarment on the basis that he is the sole health care
provider or the sole source of essential specialized services in a
community.
(c) Methods of sending notice. OPM shall send the notice of
proposed debarment and the final decision notice (if a contest is
filed) to the provider's last known address by first class mail, or, at
OPM's option, by express delivery service.
(d) Delivery to attorney, agent, or representatives. (1) If OPM
proposes to debar an individual health care provider, it may send the
notice of proposed debarment directly to the provider or to any other
person designated by the provider to act as a representative in
debarment proceedings.
(2) In the case of a health care provider that is an entity, OPM
shall deem notice sent to any owner, partner, director, officer,
registered agent for service of process, attorney, or managing employee
as constituting notice to the entity.
(e) Presumed timeframes for receipt of notice. OPM computes
timeframes associated with the delivery notices described in paragraph
(c) of this section so that:
(1) When OPM sends notice by a method that provides a confirmation
of receipt, OPM deems that the provider received the notice at the time
indicated in the confirmation; and
(2) When OPM sends notice by a method that does not provide a
confirmation of receipt, OPM deems that the provider received the
notice 5 business days after it was sent.
(f) Procedures if notice cannot be delivered. (1) If OPM learns
that a notice was undeliverable as addressed or routed, OPM shall make
reasonable efforts to obtain a current and accurate address, and to
resend the notice to that address, or it shall use alternative methods
of sending the notice, in accordance with paragraph (c) of this
section.
(2) If a notice cannot be delivered after reasonable followup
efforts as described in paragraph (f)(1) of this section, OPM shall
presume that the provider received notice 5 days after the latest date
on which a notice was sent.
[[Page 5478]]
(g) Use of electronic means to transmit notice. [Reserved]
Sec. 890.1007 Minimum length of mandatory debarments.
(a) Debarment based on a conviction. The statutory minimum period
of debarment for a mandatory debarment based on a conviction is 3
years.
(b) Debarment based on another agency's action. A debarment based
on another Federal agency's debarment, suspension, or exclusion remains
in effect until the originating agency terminates its sanction.
Sec. 890.1008 Mandatory debarment for longer than the minimum length.
(a) Aggravating factors. OPM may debar a provider for longer than
the 3-year minimum period for mandatory debarments if aggravating
factors are associated with the basis for the debarment. The factors
OPM considers to be aggravating are:
(1) Whether the FEHBP incurred a financial loss as the result of
the acts underlying the conviction, or similar acts that were not
adjudicated, and the level of such loss. In determining the amount of
financial loss, OPM shall not consider any amounts of restitution that
a provider may have paid;
(2) Whether the sentence imposed by the court included
incarceration;
(3) Whether the underlying offense(s), or similar acts not
adjudicated, occurred repeatedly over a period of time, and whether
there is evidence that the offense(s) was planned in advance;
(4) Whether the provider has a prior record of criminal, civil, or
administrative adjudication of related offenses or similar acts; or
(5) Whether the actions underlying the conviction, or similar acts
that were not adjudicated, adversely affected the physical, mental, or
financial well-being of one or more covered individuals or other
persons.
(b) Mitigating factors. If the aggravating factors justify a
debarment longer than the 3 year minimum period for mandatory
debarments, OPM shall also consider whether mitigating factors may
justify reducing the debarment period to not less than 3 years. The
factors that OPM considers to be mitigating are:
(1) Whether the conviction(s) on which the debarment is based
consist entirely or primarily of misdemeanor offenses;
(2) Whether court records, including associated sentencing reports,
contain an official determination that the provider had a physical,
mental, or emotional condition before or during the commission of the
offenses underlying the conviction that reduced his level of
culpability; or
(3) Whether the provider's cooperation with Federal and/or State
investigative officials resulted in criminal convictions, civil
recoveries, or administrative actions against other individuals, or
served as the basis for identifying program weaknesses. Restitution
made by the provider for funds wrongfully, improperly, or illegally
received from Federal or State programs may also be considered as a
mitigating circumstance.
(c) Maximum period of debarment. There is no limit on the maximum
period of a mandatory debarment based on a conviction.
Sec. 890.1009 Contesting proposed mandatory debarments.
(a) Contesting the debarment. Within 30 days after receiving OPM's
notice of proposed mandatory debarment, a provider may submit
information, documents, and written arguments in opposition to the
proposed debarment. OPM's notice shall contain specific information
about where and how to submit this material. If a timely contest is not
filed, the proposed debarment shall become effective as stated in the
notice, without further action by OPM.
(b) Requesting a reduction of the debarment period. If OPM proposes
a mandatory debarment for a period longer than the 3-year minimum
required by 5 U.S.C. 8902a(g)(3), the provider may request a reduction
of the debarment period to not less than 3 years, without contesting
the debarment itself.
(c) Personal appearance before the debarring official. In addition
to providing written material, the provider may appear before the
debarring official personally or through a representative to present
oral arguments in support of his contest. OPM's notice shall contain
specific information about arranging an in-person presentation.
Sec. 890.1010 Debarring official's decision of contest.
(a) Prior adjudication is dispositive. Evidence indicating that a
provider was formally adjudicated for a violation of any type set forth
in 5 U.S.C. 8902a(b) fully satisfies the standard of proof for a
mandatory debarment.
(b) Debarring official's decision. The debarring official shall
issue a written decision, based on the entire administrative record,
within 30 days after the record closes to receipt of information. The
debarring official may extend this decision period for good cause.
(c) No further administrative proceedings. The debarring official's
decisions regarding mandatory debarment and the period of debarment are
final and are not subject to further administrative review.
Permissive Debarments
Sec. 890.1011 Bases for permissive debarments.
(a) Licensure actions. OPM may debar a health care provider to whom
the provisions of 5 U.S.C. 8902a(c)(1) apply. OPM may take this action
even if the provider retains current and valid professional licensure
in another State(s).
(b) Ownership or control interests. OPM may debar a health care
provider based on ownership or control of or by a debarred provider, as
set forth in 5 U.S.C. 8902a(c)(2) and (3).
(c) False, deceptive, or wrongful claims practices. OPM may debar a
provider who commits claims-related violations as set forth in 5 U.S.C.
8902a(c)(4) and (5) and 5 U.S.C. 8902a(d)(1) and (2).
(d) Failure to furnish required information. OPM may debar a
provider who knowingly fails to provide information requested by an
FEHBP carrier or OPM, as set forth in 5 U.S.C. 8902a(d)(3).
Sec. 890.1012 Time limits for OPM to initiate permissive debarments.
(a) Licensure cases. If the basis for the proposed debarment is a
licensure action, OPM shall send the provider a notice of proposed
debarment within 6 years of the effective date of the State licensing
authority's revocation, suspension, restriction, or nonrenewal action,
or the date on which the provider surrendered his license to the State
authority.
(b) Ownership or control. If the basis for the proposed debarment
is ownership or control of an entity by a sanctioned person, or
ownership or control of a sanctioned entity by a person who knew or
should have known of the basis for the entity's sanction, OPM shall
send a notice of proposed debarment within 6 years of the effective
date of the sanction on which the proposed debarment is based.
(c) False, deceptive, or wrongful claims practices. If the basis
for the proposed debarment involves a claim filed with a FEHBP carrier,
OPM shall send the provider a notice of proposed debarment within 6
years of the date he presented the claim for payment to the covered
person's FEHBP carrier.
(d) Failure to furnish requested information. If the basis for the
proposed debarment involves a provider's failure to furnish information
requested by OPM or an FEHBP carrier,
[[Page 5479]]
OPM shall send the notice of proposed debarment within 6 years of the
date on which the carrier or OPM requested the provider to furnish the
information in question.
Sec. 890.1013 Deciding whether to propose a permissive debarment.
(a) Review factors. The factors OPM shall consider in deciding
whether to propose a provider's debarment under a permissive debarment
authority are:
(1) The nature of any claims involved in the basis for the proposed
debarment and the circumstances under which they were presented to
FEHBP carriers;
(2) The improper conduct involved in the basis for the proposed
debarment, and the provider's degree of culpability and history of
prior offenses;
(3) The extent to which the provider poses or may pose a risk to
the health and safety of FEHBP-covered individuals or to the integrity
of FEHBP transactions; and
(4) Other factors specifically relevant to the provider's debarment
that shall be considered in the interests of fairness.
(b) Absence of a factor. The absence of a factor shall be
considered neutral, and shall have no effect on OPM's decision.
(c) Specialized review in certain cases. In determining whether to
propose debarment under 5 U.S.C 8902a(c)(4) for providing items or
services substantially in excess of the needs of a covered individual
or for providing items or services that fail to meet professionally-
recognized quality standards, OPM shall obtain the input of trained
reviewers, based on written medical protocols developed by physicians.
If OPM cannot reach a decision on this basis, it shall consult with a
physician in an appropriate specialty area.
Sec. 890.1014 Notice of proposed permissive debarment.
Notice of a proposed permissive debarment shall contain the
information set forth in Sec. 890.1006.
Sec. 890.1015 Minimum and maximum length of permissive debarments.
(a) No mandatory minimum or upper limit on length of permissive
debarment. There is neither a mandatory minimum debarment period nor a
limitation on the maximum length of a debarment under any permissive
debarment authority.
(b) Debarring official's process in setting period of permissive
debarment. The debarring official shall set the period of each
debarment issued under a permissive debarment authority after
considering the factors set forth in Sec. 890.1016 and the factors set
forth in the applicable section from among Sec. Sec. 890.1017 through
890.1021.
Sec. 890.1016 Aggravating and mitigating factors used to determine
the length of permissive debarments.
(a) Aggravating factors. The presence of aggravating circumstances
may support an OPM determination to increase the length of a debarment
beyond the nominal periods set forth in Sec. Sec. 890.1017 through
890.1021. The factors that OPM considers as aggravating are:
(1) Whether the provider's actions underlying the basis for the
debarment, or similar acts, had an adverse impact on the physical or
mental health or well-being of one or more FEHBP-covered individuals or
other persons.
(2) Whether the provider has a documented history of prior criminal
wrongdoing; civil violations related to health care items or services;
improper conduct; or administrative violations addressed by a Federal
or State agency. OPM may consider matters involving violence, patient
abuse, drug abuse, or controlled substances convictions or violations
to be particularly serious.
(3) Whether the provider's actions underlying the basis for the
debarment, or similar acts, resulted in financial loss to the FEHBP,
FEHBP-covered individuals, or other persons. In determining whether, or
to what extent, a financial loss occurred, OPM shall not consider any
amounts of restitution that the provider may have paid.
(4) Whether the provider's false, wrongful, or improper claims to
FEHBP carriers were numerous, submitted over a prolonged period of
time, or part of an on-going pattern of wrongful acts.
(5) Whether the provider was specifically aware of or directly
responsible for the acts constituting the basis for the debarment.
(6) Whether the provider attempted to obstruct, hinder, or impede
official inquiries into the wrongful conduct underlying the debarment.
(b) Mitigating factors. The presence of mitigating circumstances
may support an OPM determination to shorten the length of a debarment
below the nominal periods set forth in Sec. Sec. 890.1017 through
890.1021, respectively. The factors that OPM considers as mitigating
are:
(1) Whether the provider's cooperation with Federal, State, or
local authorities resulted in criminal convictions, civil recoveries,
or administrative actions against other violators, or served as the
basis for official determinations of program weaknesses or
vulnerabilities. Restitution that the provider made for funds
wrongfully, improperly, or illegally received from Federal or State
programs may also be considered as a mitigating factor.
(2) Whether official records of judicial proceedings or the
proceedings of State licensing authorities contain a formal
determination that the provider had a physical, mental, or emotional
condition that reduced his level of culpability before or during the
period in which he committed the violations in question.
(c) Absence of factors. The absence of aggravating or mitigating
factors shall have no effect to either increase or lower the nominal
period of debarment.
Sec. 890.1017 Determining length of debarment based on revocation or
suspension of a provider's professional licensure.
(a) Indefinite term of debarment. Subject to the exceptions set
forth in paragraph (b) of this section, debarment under 5 U.S.C.
8902a(c)(1) shall be for an indefinite period coinciding with the
period during which the provider's license is revoked, suspended,
restricted, surrendered, or otherwise not in effect in the State whose
action formed the basis for OPM's debarment.
(b) Aggravating circumstances. If any of the aggravating
circumstances set forth in Sec. 890.1016 apply, OPM may debar the
provider for an additional period beyond the duration of the licensure
revocation or suspension.
Sec. 890.1018 Determining length of debarment for an entity owned or
controlled by a sanctioned provider.
OPM shall determine the length of debarments of entities under 5
U.S.C. 8902a(c)(2) based on the type of violation committed by the
person with an ownership or control interest. The types of violations
actionable under this provision are:
(a) Owner/controller's debarment. The debarment of an entity based
on debarment of an individual with an ownership or control interest
shall be for a period concurrent with the individual's debarment. If
any aggravating or mitigating circumstances set forth in Sec. 890.1016
apply solely to the entity and were not considered in setting the
period of the individual's debarment, OPM may debar the entity for a
period longer or shorter than the individual's debarment.
(b) Owner/controller's conviction. The debarment of an entity based
on the criminal conviction of a person with an ownership or control
interest for an offense listed in 5 U.S.C. 8902a(b)(1)-(4) shall be for
a period of not less than 3 years, subject to adjustment for any
aggravating or mitigating circumstances
[[Page 5480]]
set forth in Sec. 890.1016 applying solely to the entity.
(c) Owner/controller's civil monetary penalty. The debarment of an
entity based on a civil monetary penalty imposed on a person with an
ownership or control interest, shall be for a period of not less than 3
years, subject to adjustment for any aggravating or mitigating
circumstances set forth in Sec. 890.1016 applying solely to the
entity.
Sec. 890.1019 Determining length of debarment based on ownership or
control of a sanctioned entity.
OPM shall determine the length of debarments of individual
providers under 5 U.S.C. 8902a(c)(3) based on the type of violation
committed by the sanctioned entity owned or controlled by the person
with an ownership or control interest. The types of violations
actionable under this provision are:
(a) Entity's debarment. If a provider's debarment is based on his
ownership or control of a debarred entity, the debarment shall be
concurrent with the entity's debarment. If any of the aggravating or
mitigating circumstances identified in Sec. 890.1016 applies directly
to the provider that owns or controls the debarred entity and was not
considered in setting the period of the entity's debarment, OPM may
debar the provider for a period longer or shorter, respectively, than
the entity's debarment.
(b) Entity's conviction. If a provider's debarment is based on the
criminal conviction of an entity he owns or controls for an offense
listed in 5 U.S.C. 8902a(b)(1)-(4), OPM shall debar the provider for a
period of no less than 3 years, subject to adjustment for any
aggravating or mitigating circumstances identified in Sec. 890.1016
that apply to the provider as an individual.
(c) Entity's civil monetary penalty. If a provider's debarment is
based on a civil monetary penalty imposed on an entity he owns or
controls, OPM shall debar him for 3 years, subject to adjustment on the
basis of the aggravating and mitigating circumstances listed in Sec.
890.1016 that apply to the provider as an individual.
Sec. 890.1020 Determining length of debarment based on false,
wrongful, or deceptive claims.
Debarments under 5 U.S.C. 8902a(c)(4) and (5) and 5 U.S.C.
8902a(d)(1) and (2) shall be for a period of 3 years, subject to
adjustment based on the aggravating and mitigating factors listed in
Sec. 890.1016.
Sec. 890.1021 Determining length of debarment based on failure to
furnish information needed to resolve claims.
Debarments under 5 U.S.C. 8902a(d)(3) shall be for a period of 3
years, subject to adjustment based on the aggravating and mitigating
factors listed in Sec. 890.1016.
Sec. 890.1022 Contesting proposed permissive debarments.
(a) Right to contest a proposed debarment. A provider proposed for
debarment under a permissive debarment authority may challenge the
debarment by filing a written contest with the debarring official
during the 30-day notice period indicated in the notice of proposed
debarment. In the absence of a timely contest, the debarment shall
become effective as stated in the notice, without further action by
OPM.
(b) Challenging the length of a proposed debarment. A provider may
contest the length of the proposed debarment, while not challenging the
debarment itself, or may contest both the length of a debarment and the
debarment itself in the same contest.
Sec. 890.1023 Information considered in deciding a contest.
(a) Documents and oral and written arguments. A provider may submit
documents and written arguments in opposition to the proposed debarment
and/or the length of the proposed debarment, and may appear personally
or through a representative before the debarring official to provide
other relevant information.
(b) Specific factual basis for contesting the proposed debarment. A
provider's oral and written arguments shall identify the specific facts
that contradict the basis for the proposed debarment as stated in the
notice of proposed debarment. A general or unsupported denial of the
basis for debarment does not raise a genuine dispute over facts
material to the debarment, and the debarring official shall not give
such a denial any probative weight.
(c) Mandatory disclosures. Regardless of the basis for the contest,
providers are required to disclose certain types of background
information, in addition to any other information submitted during the
contest. Failure to provide such information completely and accurately
may be a basis for OPM to initiate further legal or administrative
action against the provider. The specific items of information that
shall be furnished to OPM are:
(1) Any existing, proposed, or prior exclusion, debarment, penalty,
or other sanction imposed on the provider by a Federal, State, or local
government agency, including any administrative agreement that purports
to affect only a single agency;
(2) Any criminal or civil legal proceeding not referenced in the
notice of proposed debarment that arose from facts relevant to the
basis for debarment stated in the notice; and
(3) Any entity in which the provider has a control interest, as
that term is defined in Sec. 890.1003.
Sec. 890.1024 Standard and burden of proof for deciding contests.
OPM shall demonstrate, by a preponderance of the evidence in the
administrative record as a whole, that a provider has committed a
sanctionable violation.
Sec. 890.1025 Cases where additional fact-finding is not required.
In each contest, the debarring official shall determine whether a
further fact-finding proceeding is required in addition to presentation
of arguments, documents, and information. An additional fact-finding
proceeding is not required when:
(a) Prior adjudication. The proposed debarment is based on facts
determined in a prior due process adjudication. Examples of prior due
process proceedings include, but are not limited to, the adjudication
procedures associated with:
(1) Licensure revocation, suspension, restriction, or nonrenewal by
a State licensing authority;
(2) Debarment, exclusion, suspension, civil monetary penalties, or
similar legal or administrative adjudications by Federal, State, or
local agencies;
(3) A criminal conviction or civil judgment; or
(4) An action by a provider that constitutes a waiver of his right
to a due process adjudication, such as surrender of professional
license during the pendency of a disciplinary hearing, entering a
guilty plea or confession of judgment in a judicial proceeding, or
signing a settlement agreement stipulating facts that constitute a
sanctionable violation.
(b) Material facts not in dispute. The provider's contest does not
identify a bona fide dispute concerning facts material to the basis for
the proposed debarment.
Sec. 890.1026 Procedures if a fact-finding proceeding is not
required.
(a) Debarring official's procedures. If a fact-finding proceeding
is not required, the debarring official shall issue a final decision of
a provider's contest within 30 days after the record
[[Page 5481]]
closes for submitting evidence, arguments, and information as part of
the contest. The debarring official may extend this timeframe for good
cause.
(b) No further administrative review available. There are no
further OPM administrative proceedings after the presiding official's
final decision. A provider adversely affected by the decision may
appeal under 5 U.S.C. 8902a(h)(2) to the appropriate U.S. district
court.
Sec. 890.1027 Cases where an additional fact-finding proceeding is
required.
(a) Criteria for holding fact-finding proceeding. The debarring
official shall request another OPM official (``presiding official'') to
hold an additional fact-finding proceeding if:
(1) Facts material to the proposed debarment have not been
adjudicated in a prior due process proceeding; and
(2) These facts are genuinely in dispute, based on the entire
administrative record available to the debarring official.
(b) Qualification to serve as presiding official. The presiding
official is designated by the OPM Director or another OPM official
authorized by the Director to make such designations. The presiding
official shall be a senior official who is qualified to conduct
informal adjudicative proceedings and who has had no previous contact
with the proposed debarment or the contest.
(c) Effect on contest. The debarring official shall defer a final
decision on the contest pending the results of the fact-finding
proceeding.
Sec. 890.1028 Conducting a fact-finding proceeding.
(a) Informal proceeding. The presiding official may conduct the
fact-finding proceedings as informally as practicable, consistent with
principles of fundamental fairness. Formal rules of evidence or
procedure do not apply to these proceedings.
(b) Proceeding limited to disputed material facts. The presiding
official shall consider only the genuinely disputed facts identified by
the debarring official as material to the basis for the debarment.
Matters that have been previously adjudicated or that are not in bona
fide dispute within the administrative record shall not be considered
by presiding official.
(c) Provider's right to present information, evidence, and
arguments. A provider may appear before the presiding official with
counsel, submit oral and written arguments and documentary evidence,
present witnesses on his own behalf, question any witnesses testifying
in support of the debarment, and challenge the accuracy of any other
evidence that the agency offers as a basis for the debarment.
(d) Record of proceedings. The presiding official shall make an
audio recording of the proceedings and shall provide a copy to the
provider at no charge. If the provider wishes to have a transcribed
record, OPM shall arrange for production of one which may be purchased
at cost.
(e) Presiding official's findings. The presiding official shall
resolve all of the disputed facts identified by the debarring official,
on the basis of a preponderance of the evidence contained within the
entire administrative record. The presiding official shall issue a
written report of all findings of fact to the debarring official within
30 days after the record of the fact-finding proceeding closes.
Sec. 890.1029 Deciding a contest after a fact-finding proceeding.
(a) Findings shall be accepted. The debarring official shall accept
the presiding official's findings of fact, unless they are arbitrary,
capricious, or clearly erroneous. If the debarring official concludes
that the factual findings are not acceptable, they may be remanded to
the presiding official for additional proceedings in accordance with
Sec. 890.1028.
(b) Timeframe for final decision. The debarring official shall
issue a final written decision on a contest within 30 days after
receiving the presiding official's findings. The debarring official may
extend this decision period for good cause.
(c) Debarring official's final decision. (1)The debarring official
shall observe the evidentiary standards and burdens of proof stated in
Sec. 890.1024 in reaching a final decision.
(2) In any case where a final decision is made to debar a provider,
the debarring official has the discretion to set the period of
debarment, subject to the factors identified in Sec. Sec. 890.1016
through 1021.
(3) The debarring official has the discretion to decide not to
impose debarment in any case involving a permissive debarment
authority.
(d) No further administrative proceedings. No further
administrative proceedings shall be conducted after the debarring
official's final decision in a contest involving an additional fact-
finding hearing. A provider adversely affected by the debarring
official's final decision in a contested case may appeal under 5 U.S.C.
8902a(h)(2) to the appropriate U. S. district court.
Suspension
Sec. 890.1030 Effect of a suspension.
(a) Temporary action pending formal proceedings. Suspension is a
temporary action pending completion of an investigation or ensuing
criminal, civil, or administrative proceedings.
(b) Immediate effect. Suspension is effective immediately upon the
suspending official's decision, without prior notice to the provider.
(c) Effect equivalent to debarment. The effect of a suspension is
the same as the effect of a debarment. A suspended provider may not
receive payment from FEHBP funds for items or services furnished to
FEHBP-covered persons while suspended.
Sec. 890.1031 Grounds for suspension.
(a) Basis for suspension. OPM may suspend a provider if:
(1) OPM obtains reliable evidence indicating that one of the
grounds for suspension listed in paragraph (b) of this section applies
to the provider; and
(2) The suspending official determines under paragraph (c) of this
section that immediate action to suspend the provider is necessary to
protect the health and safety of persons covered by FEHBP.
(b) Grounds for suspension. Evidence constituting grounds for a
suspension may include, but is not limited to:
(1) Indictment or conviction of a provider for a criminal offense
that is a basis for mandatory debarment under this subpart;
(2) Indictment or conviction of a provider for a criminal offense
that reflects a risk to the health, safety, or well-being of FEHBP-
covered individuals;
(3) Other credible evidence indicating, in the judgment of the
suspending official, that a provider has committed a violation that
would warrant debarment under this subpart. This may include, but is
not limited to:
(i) Civil judgments;
(ii) Notice that a Federal, State, or local government agency has
debarred, suspended, or excluded a provider from participating in a
program or revoked or declined to renew a professional license; or
(iii) Other official findings by Federal, State, or local bodies
that determine factual or legal matters.
(c) Determining need for immediate action. Suspension is intended
to protect the public interest, including the health and safety of
covered individuals or the integrity of FEHBP funds. The suspending
official has wide discretion to decide whether to suspend a provider. A
specific finding of
[[Page 5482]]
immediacy or necessity is not required to issue a suspension. The
suspending official may draw reasonable inferences from the nature of
the alleged misconduct and from a provider's actual or potential
transactions with the FEHBP.
Sec. 890.1032 Length of suspension.
(a) Initial period. The initial term of all suspensions shall be an
indefinite period not to exceed 12 months.
(b) Formal legal proceedings not initiated. If formal legal or
administrative proceedings have not begun against a provider within 12
months after the effective date of his suspension, the suspending
official may:
(1) Terminate the suspension; or
(2) If requested by the Department of Justice, the cognizant United
States Attorney's Office, or other responsible Federal, State, or local
prosecuting official, extend the suspension for an additional period,
not to exceed 6 months.
(c) Formal proceedings initiated. If formal criminal, civil, or
administrative proceedings are initiated against a suspended provider,
the suspension may continue indefinitely, pending the outcome of those
proceedings.
(d) Terminating the suspension. The suspending official may
terminate a suspension at any time, and shall terminate it after 18
months, unless formal proceedings have begun within that period.
Sec. 890.1033 Notice of suspension.
(a) Written notice. OPM shall send written notice of suspension
according to the procedures and methods described in Sec. 890.1006(c)-
(f).
(b) Contents of notice. The suspension notice shall contain
information indicating that:
(1) The provider has been suspended, effective on the date of the
notice;
(2) The initial period of the suspension;
(3) The basis for the suspension;
(4) The provisions of law and regulation authorizing the
suspension;
(5) The effect of the suspension; and
(6) The provider's rights to contest the suspension.
Sec. 890.1034 Counting a period of suspension as part of a subsequent
debarment.
The debarring official may consider the provider's contiguous
period of suspension when determining the length of a debarment.
Sec. 890.1035 Provider contests of suspensions.
(a) Filing a contest of the suspension. A provider may challenge a
suspension by filing a contest, in writing, with the suspending
official not later than 30 days after receiving notice of suspension.
The suspension shall remain in effect during the contest, unless
rescinded by the suspending official.
(b) Informal proceeding. The suspending official shall use
informal, flexible procedures to conduct the contest. Formal rules of
evidence and procedure do not apply to this proceeding.
Sec. 890.1036 Information considered in deciding a contest.
(a) Presenting information and arguments to the suspending
official. A provider may submit documents and written arguments in
opposition to the suspension, and may appear personally, or through a
representative, before the suspending official to provide any other
relevant information.
(b) Specific factual basis for contesting the suspension. The
provider shall identify specific facts that contradict the basis for
the suspension as stated in the suspension notice. A general denial of
the basis for suspension does not raise a genuine dispute over facts
material to the suspension, and the suspending official shall not give
such a denial any probative weight.
(c) Mandatory disclosures. Any provider contesting a suspension
shall disclose the items of information set forth in Sec. 890.1023(c).
Failure to provide such information completely and accurately may be a
basis for OPM to initiate further legal or administrative action
against the provider.
Sec. 890.1037 Cases where additional fact-finding is not required.
The suspending official may decide a contest without an additional
fact-finding process if:
(a) Previously adjudicated facts. The suspension is based on an
indictment or on facts determined by a prior adjudication in which the
provider was afforded due process rights. Examples of due process
proceedings include, but are not limited to, the adjudication
procedures associated with licensure revocation, suspension,
restriction, or nonrenewal by a State licensing authority; similar
administrative adjudications by Federal, State, or local agencies; a
criminal conviction or civil judgment; or an action by the provider
that constitutes a waiver of his right to a due process adjudication,
such as surrender of professional licensure during the pendency of a
disciplinary hearing, entering a guilty plea or confession of judgment
in a judicial proceeding, or signing a settlement agreement stipulating
facts that constitute a sanctionable violation. Neither the existence
of the prior adjudication nor any of the underlying circumstances are
considered to be subject to genuine factual dispute as part of the
suspension proceeding.
(b) Advisory by law enforcement officials. OPM is advised by the
Department of Justice, the appropriate U.S. Attorney's Office, a State
attorney general's office, or a State or local prosecutor's office that
proceedings before a presiding official would prejudice the substantial
interests of the Government in pending or contemplated legal
proceedings based on the same facts as the suspension.
(c) No bona fide dispute of material facts. The information,
arguments, and documents submitted to the suspending official do not
establish that there is a bona fide factual dispute regarding facts
material to the suspension.
Sec. 890.1038 Deciding a contest without additional fact-finding.
(a) Written decision. The suspending official shall issue a written
decision on the contest within 30 days after the record closes for
submitting evidence, arguments, and information. The suspending
official may extend this timeframe for good cause.
(b) No further administrative review available. The suspending
official's decision is final and is not subject to further
administrative review.
Sec. 890.1039 Cases where additional fact-finding is required.
(a) Criteria for holding fact-finding proceeding. The debarring
official shall request another OPM official (``presiding official'') to
hold an additional fact-finding proceeding if:
(1) Facts material to the suspension have not been adjudicated in a
prior due process proceeding; and
(2) These facts are genuinely in dispute, based on the entire
administrative record available to the debarring official.
(b) Qualification to serve as presiding official. The presiding
official is designated by the OPM Director or another OPM official
authorized by the Director to make such designations. The presiding
official shall be a senior official who is qualified to conduct
informal adjudicative proceedings and who has had no previous contact
with the suspension or the contest.
(c) Effect on contest. The suspending official shall defer a final
decision on the contest pending the results of the fact-finding
proceeding.
[[Page 5483]]
Sec. 890.1040 Conducting a fact-finding proceeding.
(a) Informal proceeding. The presiding official may conduct the
fact-finding proceedings as informally as practicable, consistent with
principles of fundamental fairness. Specific rules of evidence or
procedure do not apply to these proceedings.
(b) Proceeding limited to disputed material facts. The presiding
official shall consider only the genuinely disputed facts identified by
the suspending official as relevant to the basis for the suspension.
Matters that have been previously adjudicated or which are not in bona
fide dispute within the record shall not be considered by the presiding
official.
(c) Right to present information, evidence, and arguments. A
provider may appear before the presiding official with counsel, submit
oral and written arguments and documentary evidence, present witnesses,
question any witnesses testifying in support of the suspension, and
challenge the accuracy of any other evidence that the agency offers as
a basis for the suspension.
(d) Record of proceedings. The presiding official shall make an
audio recording of the proceedings and shall provide a copy to the
provider at no charge. If the provider wishes to have a transcribed
record, OPM shall arrange for production of one which may be purchased
at cost.
(e) Presiding official's findings. The presiding official shall
resolve all of the disputed facts identified by the suspending
official, on the basis of a preponderance of the evidence in the entire
administrative record. Within 30 days after the record of the
proceeding closes, the presiding official shall issue a written report
of all findings of fact to the suspending official.
Sec. 890.1041 Deciding a contest after a fact-finding proceeding.
(a) Presiding official's findings shall be accepted. The suspending
official shall accept the presiding official's findings, unless they
are arbitrary, capricious, or clearly erroneous.
(b) Suspending official's decision. Within 30 days after receiving
the presiding official's report, the suspending official shall issue a
final written decision that either sustains, modifies, or terminates
the suspension. The suspending official may extend this period for good
cause.
(c) Effect on subsequent debarment or suspension proceedings. A
decision by the suspending official to modify or terminate a suspension
shall not prevent OPM from subsequently debarring the same provider, or
any other Federal agency from either suspending or debarring the
provider, based on the same facts.
Effect of Debarment
Sec. 890.1042 Effective dates of debarments.
(a) Minimum notice period. A debarment shall take effect not sooner
than 30 days after the date of OPM's notice of proposed debarment,
unless the debarring official specifically determines that the health
or safety of covered individuals or the integrity of the FEHBP warrants
an earlier effective date. In such a situation, the notice shall
specifically inform the provider that the debarring official decided to
shorten or eliminate the 30-day notice period.
(b) Uncontested debarments. If a provider does not file a contest
within the 30-day notice period, the proposed debarment shall take
effect on the date stated in the notice of proposed debarment, without
further procedures, actions, or notice by OPM.
(c) Contested debarments and requests for reducing the period of
debarment. If a provider files a contest within the 30-day notice
period, the proposed debarment shall not go into effect until the
debarring official issues a final written decision, unless the health
or safety of covered individuals or the integrity of the FEHBP requires
the debarment to be effective while the contest is pending.
Sec. 890.1043 Effect of debarment on a provider.
(a) FEHBP payments prohibited. A debarred provider is not eligible
to receive payment, directly or indirectly, from FEHBP funds for items
or services furnished to a covered individual on or after the effective
date of the debarment. Also, a provider shall not accept an assignment
of a claim for items or services furnished to a covered individual
during the period of debarment. These restrictions shall remain in
effect until the provider is reinstated by OPM.
(b) Governmentwide effect. Debarment precludes a provider from
participating in all other Federal agencies' procurement and
nonprocurement programs and activities, as required by section 2455 of
the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103--355).
Other agencies may grant a waiver or exception under their own
regulations, to permit a provider to participate in their programs,
notwithstanding the OPM debarment.
(c) Civil or criminal liability. A provider may be subject to civil
monetary penalties under this subpart or criminal liability under other
Federal statutes for knowingly filing claims, causing claims to be
filed, or accepting payment from FEHBP carriers for items or services
furnished to a covered individual during a period of debarment .
Notifying Outside Parties About Debarment and Suspension Actions
Sec. 890.1044 Entities notified of OPM-issued debarments and
suspensions.
When OPM debars or suspends a provider under this subpart, OPM
shall notify:
(a) All FEHBP carriers;
(b) The General Services Administration, for publication in the
comprehensive Governmentwide list of Federal agency exclusions;
(c) Other Federal agencies that administer health care or health
benefits programs; and
(d) State and local agencies, authorities, boards, or other
organizations with health care licensing or certification
responsibilities.
Sec. 890.1045 Informing persons covered by FEHBP about debarment or
suspension of their provider.
FEHBP carriers are required to notify covered individuals who have
obtained items or services from a debarred or suspended provider within
one year of the date of the debarment or suspension of:
(a) The existence of the provider's debarment or suspension;
(b) The minimum period remaining in the provider's period of
debarment; and
(c) The requirement that OPM terminate the debarment or suspension
before FEHBP funds can be paid for items or services the provider
furnishes to covered individuals.
Exceptions to the Effect of Debarments
Sec. 890.1046 Effect of debarment on payments for services furnished
in emergency situations.
A debarred health care provider may receive FEHBP funds paid for
items or services furnished on an emergency basis if the FEHBP carrier
serving the covered individual determines that:
(a) The provider's treatment was essential to the health and safety
of the covered individual; and
(b) No other source of equivalent treatment was reasonably
available.
Sec. 890.1047 Special rules for institutional providers.
(a) Covered individual admitted before debarment. If a covered
person is admitted as an impatient before the effective date of an
institutional provider's debarment, that provider may continue to
receive payment of FEHBP funds for inpatient institutional services
[[Page 5484]]
until the covered person is released or transferred, unless the
debarring official terminates payments under paragraph (b) of this
section.
(b) Health and safety of covered individuals. If the debarring
official determines that the health and safety of covered persons would
be at risk if they remain in a debarred institution, OPM may terminate
FEHBP payments at any time.
(c) Notice of payment limitations. If OPM limits any payment under
paragraph (b) of this section, it shall immediately send written notice
of its action to the institutional provider.
(d) Finality of debarring official's decision. The debarring
official's decision to limit or deny payments under paragraph (b) of
this section is not subject to further administrative review or
reconsideration.
Sec. 890.1048 Waiver of debarment for a provider that is the sole
source of health care services in a community.
(a) Application required. A provider may apply for a limited waiver
of debarment at any time after receiving OPM's notice of proposed
debarment. Suspended providers are not eligible to request a waiver of
suspension.
(b) Criteria for granting waiver. To receive a waiver, a provider
shall clearly demonstrate that:
(1) The provider is the sole community provider or the sole source
of essential specialized services in a community;
(2) A limited waiver of debarment would be in the best interests of
covered individuals in the defined service area;
(3) There are reasonable assurances that the actions which formed
the basis for the debarment shall not recur; and
(4) There is no basis under this subpart for continuing the
debarment.
(c) Waiver applies only in the defined service area. A limited
waiver applies only to items or services provided within the defined
service area where a provider is the sole community provider or sole
source of essential specialized services.
(d) Governmentwide effect continues. A limited waiver applies only
to a provider's FEHBP transactions. Even if OPM waives a debarment for
FEHBP purposes, the governmentwide effect under section 2455 of the
Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355)
continues for all other Federal agencies' procurement and
nonprocurement programs and activities.
(e) Waiver rescinded if circumstances change. OPM shall rescind the
limited waiver when any of its underlying bases no longer apply. If OPM
rescinds the limited waiver, the provider's debarment shall resume full
effect for all FEHBP transactions. Events warranting rescission
include, but are not limited to:
(1) The provider ceases to furnish items or services in the defined
service area;
(2) Another provider begins to furnish equivalent items or services
in the defined service area, so that the provider who received a waiver
is no longer the sole provider or sole source; or
(3) The actions that formed the basis for the provider's debarment,
or similar acts, recur.
(f) Effect on period of debarment. The minimum period of debarment
is established when the debarment is initially imposed. A subsequent
decision to grant, deny, or rescind a limited waiver shall not change
that period.
(g) Application is necessary for reinstatement. A provider who has
received a limited waiver shall apply for reinstatement at the end of
the debarment period, even if a limited waiver is in effect when the
debarment expires.
(h) Finality of debarring official's decision. The debarring
official's decision to grant or deny a limited waiver is final and not
subject to further administrative review or reconsideration.
Special Exceptions to Protect Covered Persons
Sec. 890.1049 Claims for non-emergency items or services furnished by
a debarred provider.
(a) Covered individual unaware of debarment. FEHBP funds may be
paid for items and services furnished by a debarred provider if, at the
time the items or services were furnished, the covered individual did
not know, and could not reasonably be expected to know, that the
provider was debarred. This provision is intended solely to protect the
interests of FEHBP covered persons who obtain services from a debarred
or suspended provider in good faith and without knowledge that the
provider has been sanctioned. It does not authorize debarred or
suspended providers to submit claims for payment to FEHBP carriers.
(b) Notice sent by carrier. When paying a claim under the authority
of paragraph (a) of this section, an FEHBP carrier shall send a written
notice to the covered individual, stating that:
(1) The provider is debarred and prohibited from receiving payment
of FEHBP funds for items or services furnished after the debarment
date;
(2) Claims shall not be paid for items or services furnished by the
debarred provider after the covered individual receives notice of the
debarment;
(3) The current claim is being paid as a legally-authorized
exception to the effect of the debarment in order to protect covered
individuals who obtain items or services without knowledge of the
provider's debarment;
(4) FEHBP carriers are required to deny payment of any claim for
items or services rendered by a debarred provider 15 days or longer
after the date of the notice described in paragraph (b) of this
section, unless the covered individual had no knowledge of the
provider's debarment when the items or services were rendered;
(5) The minimum period remaining in the provider's debarment; and
(6) FEHBP funds cannot be paid to the provider until OPM terminates
the debarment.
Sec. 890.1050 Exception to a provider's debarment for an individual
enrollee.
(a) Request by a covered individual. Any individual enrolled in
FEHBP may submit a request through their FEHBP carrier for continued
payment of items or services furnished by a debarred provider to any
person covered under the enrollment. Requests shall not be accepted for
continued payments to suspended providers.
(b) OPM action on the request. OPM shall consider the
recommendation of the FEHBP carrier before acting on the request. To be
approved, the request shall demonstrate that:
(1) Interrupting an existing, ongoing course of treatment by the
provider would have a detrimental effect on the covered individual's
health or safety; or
(2) The covered individual does not have access to an alternative
source of the same or equivalent health care items or services within a
reasonably accessible service area.
(c) Scope of the exception. An approved exception applies only to
the covered individual(s) who requested it, or on whose behalf it was
requested. The governmentwide effect of the provider's debarment under
section 2455 of the Federal Acquisition Streamlining Act (Pub. L. 103-
355) is not altered by an exception.
(d) Provider requests not allowed. OPM shall not consider an
exception request submitted by a provider on behalf of a covered
individual.
(e) Debarring official's decision is final. The debarring
official's decision on an exception request is not subject to further
administrative review or reconsideration.
[[Page 5485]]
Reinstatement
Sec. 890.1051 Applying for reinstatement when period of debarment
expires.
(a) Application required. Reinstatement is not automatic when the
minimum period of a provider's debarment expires. The provider shall
apply in writing to OPM, supplying specific information about the
reinstatement criteria outlined in paragraph (c) of this section.
(b) Reinstatement date. A debarred provider may submit a
reinstatement application not earlier than 60 days before the nominal
expiration date of the debarment. However, in no case shall OPM
reinstate a provider before the minimum period of debarment expires.
(c) Reinstatement criteria. To be approved, the provider's
reinstatement application shall clearly demonstrate that:
(1) There are reasonable assurances that the actions resulting in
the provider's debarment have not recurred and will not recur;
(2) There is no basis under this subpart for continuing the
provider's debarment; and
(3) There is no pending criminal, civil, or administrative action
that would subject the provider to debarment by OPM.
(d) Written notice of OPM action. OPM shall inform the provider in
writing of its decision regarding the reinstatement application.
(e) Limitation on reapplication. If OPM denies a provider's
reinstatement application, the provider is not eligible to reapply for
1 year after the date of the denial.
Sec. 890.1052 Reinstatements without application.
OPM shall reinstate a provider without a reinstatement application
if:
(a) Conviction reversed. The conviction on which the provider's
debarment was based is reversed or vacated by a final decision of the
highest appeals court with jurisdiction over the case; and the
prosecutorial authority with jurisdiction over the case has declined to
retry it, or the deadline for retrial has expired without action by the
prosecutor.
(b) Sanction terminated. A sanction imposed by another Federal
agency, on which the debarment was based, is terminated by that agency.
(c) Court order. A Federal court orders OPM to stay, rescind, or
terminate a provider's debarment.
(d) Written notice. When reinstating a provider without an
application, OPM shall send the provider written notice of the basis
and effective date of his reinstatement.
Sec. 890.1053 Table of procedures and effective dates for
reinstatements.
The procedures and effective dates for reinstatements under this
subpart are:
------------------------------------------------------------------------
Application
Basis for debarment required? Effective date
------------------------------------------------------------------------
Period of debarment expires. Yes................. After debarment
expires.
Conviction reversed on final No.................. Retroactive (start
appeal/no retrial possible. of debarment).
Other agency sanction ends.. No.................. Ending date of
sanction.
Court orders reinstatement.. No.................. Retroactive (start
of debarment).
------------------------------------------------------------------------
Sec. 890.1054 Agencies and entities to be notified of reinstatements.
OPM shall inform the FEHBP carriers, Government agencies and other
organizations that were originally notified of a provider's debarment
when a provider is reinstated under Sec. 890.1051 or Sec. 890.1052.
Sec. 890.1055 Contesting a denial of reinstatement.
(a) Obtaining reconsideration of the initial decision. A provider
may contest OPM's decision to deny a reinstatement application by
submitting documents and written arguments to the debarring official
within 30 days of receiving the notice described in Sec. 890.1051(d).
In addition, the provider may request to appear in person to present
oral arguments to the debarring official. The provider may be
accompanied by counsel when making a personal appearance.
(b) Debarring official's final decision on reinstatement. The
debarring official shall issue a final written decision, based on the
entire administrative record, within 30 days after the record closes to
receipt of information. The debarring official may extend the decision
period for good cause.
(c) Finality of debarring official's decision. The debarring
official's final decision regarding a provider's reinstatement is not
subject to further administrative review or reconsideration.
Civil Monetary Penalties and Financial Assessments [Reserved]
[FR Doc. 03-2398 Filed 1-31-03; 8:45 am]
BILLING CODE 6325-52-U