[Federal Register: February 10, 2003 (Volume 68, Number 27)]
[Proposed Rules]
[Page 6649-6653]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe03-23]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 6649]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 890
RIN 3206-AJ42
Financial Sanctions of Health Care Providers Participating in the
Federal Employees Health Benefits Program
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing to amend
its regulations on administrative sanctions of health care providers
participating in the Federal Employees Health Benefits Program (FEHBP).
This proposed rule addresses the financial sanctions provisions of
Section 2 of Public Law 105-266, the Federal Employees Health Care
Protection Act of 1998, which authorize OPM to impose civil monetary
penalties and financial assessments against health care providers who
commit certain types of violations against the FEHBP. In concert with
the previously-issued regulations on debarment and suspension
authorities, this proposed rule will afford OPM a full range of
administrative remedies to deter and rectify provider misconduct within
FEHBP. The regulatory framework established by this issuance provides
appropriate due process protections to assure that the amounts of
financial sanctions are assessed through a consistent and equitable
process, the Government's financial interests are fully protected, and
financial sanctions are imposed only after an opportunity for an
administrative hearing on all facts material to the basis for the
sanctions.
DATES: Submit comments on or before April 11, 2003.
ADDRESSES: Send or deliver written comments to David Cope, U.S. Office
of Personnel Management, 1900 E Street NW., Room 6400, Washington, DC
20415, or submit comments electronically to debar@opm.gov.
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
Section 2 of the Federal Employees Health Care Protection Act of
1998 (Pub. L. 105-266), enacted a comprehensive set of administrative
sanctions authorities for OPM to use in combating health care provider
fraud within the FEHBP. These authorities fall into two broad
categories--exclusion, comprising suspension and debarment from
participation in FEHBP, and financial sanctions, comprising civil
monetary penalties and financial assessments.
On December 12, 2001, OPM published proposed regulations at 66 FR
64160 to implement the exclusion-based authorities. The current
issuance contains proposed regulations for the financial sanctions
authorities. When issued as final rules, the two regulatory packages
shall fully implement all of the administrative sanctions enacted by
Pub. L. 105-266.
Administrative sanctions enable an agency to protect its financial
and program interests against individuals or entities that have
committed certain types of actionable violations specified by statute.
In addition, health care provider sanctions also protect the health
care interests of persons covered through the FEHBP. Both of these
interests are specifically recognized by the proposed regulations as
principal objectives of sanctions activities.
Exclusion-related sanctions recognize past misconduct and protect
against future violations by removing the subject of the sanction from
further participation in FEHBP. (In the context of the FEHBP sanctions
statute, ``participation'' means receiving funds. Thus, an excluded
provider may treat FEHBP covered persons, but may not be paid FEHBP
funds for any items or services provided after the effective date of
the exclusion.)
Financial sanctions have similar ``look back'' and ``look forward''
purposes. Pub. L. 105-266 established two categories of financial
sanctions--assessments and civil monetary penalties. As stated in Sec.
890.1060(b) of the proposed rule, assessments are intended to recognize
all of the losses, costs, and damages OPM incurred as the result of a
provider's wrongful conduct, although the amount assessed is not
limited by the dollar value of those items. Civil monetary penalties
are lump-sum amounts that, while computed by reference to improper
claims, are intended principally to deter future violations.
Section 890.1060(e) states that financial sanctions may be imposed
in addition to all other criminal, civil, and administrative remedies
that any state or Federal agency may apply to the same conduct by a
provider.
Bases for Financial Sanctions
Pub. L. 105-266 sets forth three bases for imposing financial
sanctions. All relate in some degree either to claims actually filed
with FEHBP carriers or to conduct associated with claims, even if no
claim was filed. In contrast to exclusion-based sanctions, where the
underlying violations need not have affected FEHBP, financial sanctions
may be imposed only for violations that directly involve FEHBP
enrollees, carriers, or funds.
As outlined in Sec. 890.1061 of the proposed rule, the bases for
financial sanctions are (1) fraudulent or improper claims; (2) false or
misleading statements in or about claims; and (3) failure to provide
claims-related information that is required by law to be disclosed.
Imposing Financial Sanctions
While some exclusion-based sanctions are mandatory (i.e., OPM must
debar a provider who commits certain types of violations), imposition
of any financial sanction is always permissive with the debarring
official. Sections 890.1062(b) through (d) identify the factors that
the debarring official must consider in deciding whether to impose
financial sanctions in a given case. Most of these factors are
identified specifically by Pub. L. 105-266. We have added Sec.
890.1062(d) to reflect the particular importance OPM attaches to
protecting FEHBP covered persons from untrustworthy providers.
Amounts of Financial Sanctions
Section 890.1063 reflects the statutory limits on amounts of
financial sanctions. Assessments may not exceed twice the amount
claimed for each item or service ``involved'' in the claims on which
the assessment is based. Civil monetary penalties may not exceed
[[Page 6650]]
$10,000 for each ``involved'' item or service. As the statute makes
clear, penalties and assessments may be imposed concurrently for the
same violations.
Setting the Amount of Financial Sanctions Within Statutory Limits
Federal courts have regularly upheld the use of financial sanctions
authority in health care claims cases to produce a total of assessments
and penalties that substantially exceeds the amount of Federal funds
that had been paid improperly. Thus, the debarring official has
authority to set sanctions amounts across very wide permissible limits,
and decisions regarding the amounts may carry significant financial
consequences for providers. Section 890.1064 is intended to provide the
guidance necessary for the debarring official to exercise this
authority in an equitable and consistent manner. Section 890.1064(b)
sets the overall policy context for determining amounts of financial
sanctions, including recovery of all damages, losses, and costs
incurred by OPM as a result of sanctionable violations, and imposition
of an additional penalty amount to deter future violations. Section
890.1064(c) emphasizes that ``damages, losses, and costs'' are to be
given the broadest possible interpretation. Section 890.1064(d)
summarizes the factors that the debarring official must consider in
determining the amount of financial sanctions. These consist of (1) the
factors identified in Sec. 890.1062 as material to determining whether
to impose financial sanctions; (2) the level of aggravation or
mitigation reflected in the circumstances of the case; (3) the need to
deter future misconduct; and (4) the provider's financial situation.
This latter factor is not referred to in Pub. L. 105-266, but the
concept appears in several other agencies' financial sanctions
regulations, including the Department of Health and Human Services'
Medicare provider sanctions authorities. Section 890.1064(e) addresses
aggravating and mitigating factors as a series of benchmarks,
describing the types of violations that would warrant assessments and
penalties at the higher and lower ends of the statutory range.
Procedures
The procedures for proposing and imposing financial sanctions
generally mirror those used for permissive debarments. OPM initiates a
financial sanction action by sending written notice of the proposed
sanction. As is the case with exclusion-based sanctions, there is a 6-
year limitation period for proposed financial sanctions. Section
890.1066 explains the limitation period and specifies the contents and
methods of delivery of the notice. Section 890.1067 sets out the
options available to providers upon receiving a notice of proposed
sanctions. In brief, the provider may either formally contest the
sanctions or seek to settle or compromise them through negotiation with
the debarring official. As indicated in Sec. 890.1068, if the subject
of the proposed sanction takes no action during the 30-day notice
period, OPM may immediately finalize the sanction, without further
right of appeal or recourse by the provider.
Contesting Proposed Financial Sanctions
Sections 890.1069 through 1071 address contests of proposed
financial sanctions. They incorporate by reference most of the
provisions of Sec. Sec. 890.1022 through 1029, regarding contests of
proposed permissive debarments.
As indicated by Sec. 890.1069, the subject of the proposed
sanction may contest it simply by submitting documents to the debarring
official, or, at the provider's option, may also make a personal
appearance, with or without counsel, to present testimony and oral
arguments.
Section 890.1070(a) states that (as is the case in contests of
proposed debarments), facts previously adjudicated in due process
proceedings (e.g., criminal or civil proceedings, administrative
hearings, or actions that constitute waiver of the right to a due
process proceeding) are binding on the debarring official in deciding
the contest.
Section 890.1070(b) sets ``preponderance of the evidence'' as the
standard of proof for decisions on contests.
Section 890.1070(c) states that the amounts of penalties and
assessments proposed in OPM's notice to the provider effectively
establish a ceiling on the size of financial sanctions that may
ultimately be imposed. The debarring official cannot increase the
proposed amount under any circumstances, and has the discretion to
impose a lower amount if evidence in the administrative record so
warrants.
Section 890.1071 applies to contests of financial sanctions the
same decisionmaking methodologies established for contests of proposed
debarments in Sec. Sec. 890.1026 through 1029. The debarring official
shall decide the contest without a further proceeding if there are no
disputed material facts. If material facts are in dispute, the
debarring official must refer them to a hearing officer who has had no
prior involvement in the case, to conduct a due process hearing. The
hearing process under Sec. 890.1071(c) tracks that used to resolve
disputed material facts in contests of proposed debarments. The hearing
officer reports the facts found to the debarring official, who must
accept and apply these findings in reaching a final decision on the
contest.
Appeals of Final Decisions
Section 890.1072 states the right of judicial appeal provided in
the FEHBP sanctions statute. Any provider on whom a final decision of
the debarring official imposes any financial sanction may appeal to the
appropriate U.S. district court, unless the provider's ability to
appeal has been foreclosed by their failure to administratively contest
a proposed sanction in a timely manner.
Collecting Payment of Financial Sanctions
Section 890.1073 outlines the methods OPM shall use to collect
financial sanctions. These include a mutually agreed payment schedule
and other administrative debt collection procedures, including offset
against monies owed by other Federal agencies. If administrative
efforts do not resolve the debt, 5 U.S.C. 8902a(i) authorizes the
Department of Justice to file a civil lawsuit in the appropriate U.S.
district court to enforce payment. As stated in 890.1073(e), the
statute further specifies that monies collected in respect of financial
sanctions are to be paid to the Employees Health Benefits Fund.
Regulatory Flexibility Act
I certify that this proposed regulation will not have a significant
economic impact on a substantial number of small entities, because the
financial sanctions are limited to the portion of health care
providers' activities involving 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, Military personnel, Reporting and recordkeeping
requirements, Retirement.
[[Page 6651]]
Office of Personnel Management,
Kay Coles James,
Director.
Accordingly, OPM proposes to amend 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 continues 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.
2. In Subpart J, Sec. Sec. 890.1060 through 1073 are added to read
as follows:
Subpart J--Administrative Sanctions Imposed Against Health Care
Providers
Sec.
Civil Monetary Penalties and Financial Assessments
890.1060 Purpose and scope of civil monetary penalties and
assessments.
890.1061 Bases for penalties and assessments.
890.1062 Deciding whether to impose penalties and assessments.
890.1063 Maximum amounts of penalties and assessments.
890.1064 Determining the amounts of penalties and assessments to be
imposed on a provider.
890.1065 Deciding whether to suspend or debar a provider in a case
that also involves penalties and assessments.
890.1066 Notice of proposed penalties and assessments.
890.1067 Provider contests of proposed penalties and assessments.
890.1068 Effect of not contesting proposed penalties and
assessments.
890.1069 Information the debarring official shall consider in
deciding a provider's contest of proposed penalties and assessments.
890.1070 Burdens of proof and standards of evidence in contests of
proposed penalties and assessments.
890.1071 Deciding contests of proposed penalties and assessments.
890.1072 Further appeal rights after final decision on penalties and
assessments.
890.1073 Collecting penalties and assessments.
Civil Monetary Penalties and Financial Assessments
Sec. 890.1060 Purpose and scope of civil monetary penalties and
assessments.
(a) Civil monetary penalty. A civil monetary penalty is an amount
that OPM may impose on a health care provider who commits one of the
violations listed in Sec. 890.1061. Penalties are intended to protect
the integrity of FEHBP by deterring repeat violations by the same
provider and by reducing the likelihood of future violations by other
providers.
(b) Assessment. An assessment is an amount that OPM may impose on a
provider, calculated by reference to the claims involved in the
underlying violations. Assessments are intended to recognize monetary
losses, costs, and damages sustained by OPM as the result of a
provider's violations.
(c) Use of terminology. In Sec. Sec. 890.1060 through 1072
Penalty means ``civil monetary penalty;'' and
Penalties and assessments may connote the singular or plural forms
of either of those terms, and may represent them in either the
conjunctive or disjunctive sense.
(d) Relationship to debarment and suspension. In addition to
imposing penalties and assessments, OPM may concurrently debar or
suspend a provider from participating in FEHBP on the basis of the same
violations.
(e) Relationship to other penalties provided by law. The penalties,
assessments, debarment, and suspension imposed by OPM are in addition
to any other penalties that may be prescribed by law or regulation
administered by an agency of the Federal Government or any State.
Sec. 890.1061 Bases for penalties and assessments.
(a) Improper claims. OPM may impose penalties and assessments on a
provider if a claim presented by that provider for payment from FEHBP
funds meets the criteria set forth in 5 U.S.C. 8902a(d)(1).
(b) False or misleading statements. OPM may impose penalties and
assessments on a provider who makes a false statement or
misrepresentation as set forth in 5 U.S.C. 8902a(d)(2).
(c) Failing to provide claims-related information. OPM may impose
penalties and assessments on a provider who knowingly fails to provide
claims-related information as otherwise required by law.
Sec. 890.1062 Deciding whether to impose penalties and assessments.
(a) Authority of debarring official. The debarring official has
discretionary authority to impose penalties and assessments in
accordance with 5 U.S.C. 8902a and this subpart.
(b) Factors to be considered. In deciding whether to impose
penalties and assessments against a provider that has committed one of
the violations identified in Sec. 890.1061, OPM shall consider:
(1) The number and frequency of the provider's violations;
(2) The period of time over which the violations were committed;
(3) The provider's culpability for the specific conduct underlying
the violations;
(4) The nature of any claims involved in the violations and the
circumstances under which the claims were presented to FEHBP carriers;
(5) The provider's history of prior offenses or improper conduct,
including any actions that could have constituted a basis for a
suspension, debarment, penalty, or assessment by any Federal or State
agency, whether or not any sanction was actually imposed;
(6) Any monetary damages, losses, and costs, as described in Sec.
890.1064(c), attributable to the provider's violations; and
(7) Such other factors as justice may require.
(c) Additional factors when penalty or assessment is based on Sec.
890.1061(b) or (c). In the case of violations involving false or
misleading statements or the failure to provide claims-related
information, OPM shall also consider:
(1) The nature and circumstances of the provider's failure to
properly report information; and
(2) The materiality and significance of the false statements or
misrepresentations the provider made or caused to be made, or the
information that the provider knowingly did not report.
Sec. 890.1063 Maximum amounts of penalties and assessments.
OPM may impose penalties and assessments in amounts not to exceed
those set forth in 5 U.S.C. 8902a(d).
Sec. 890.1064 Determining the amounts of penalties and assessments to
be imposed on a provider.
(a) Authority of debarring official. The debarring official has
discretionary authority to set the amounts of penalties and assessments
in accordance with law and this subpart.
(b) Objectives of penalties and assessments. In setting the amounts
of penalties and assessments to be imposed on a provider, the debarring
official shall be guided by the overall objectives of:
(1) Assuring that the United States is fully compensated for all
damages, losses, and costs associated with a provider's violations; and
(2) Deterring future violations by the provider on whom the
penalties and
[[Page 6652]]
assessments were imposed, and other health care providers.
(c) Determining damages, losses, and costs. In determining the
appropriate amount of compensation due to the United States, OPM shall
include, at the minimum:
(1) Amounts wrongfully paid from FEHBP funds as the result of a
provider's violations and interest on those amounts, at rates
determined by the Department of the Treasury;
(2) All costs incurred by OPM and FEHBP carriers in investigating a
provider's sanctionable misconduct; and
(3) All costs associated with administrative review of a case,
including every phase of the administrative sanctions process described
by this subpart.
(d) Factors considered in determining amounts of penalties and
assessments. In determining the amounts of penalties and assessments to
impose on a provider OPM shall consider:
(1) All of the factors set forth in Sec. 890.1062(b) through (d);
(2) The provider's personal financial situation, or, in the case of
violations committed by an entity, the entity's financial situation;
(3) The Government's interests in deterring future misconduct by
providers; and
(4) The presence of aggravating or less serious circumstances, as
described in paragraphs (e)(1) through (e)(7) of this section.
(e) Aggravated and less serious circumstances. The presence of
aggravating circumstances may cause OPM to impose penalties and
assessments at a higher level within the authorized range, while less
serious violations may warrant sanctions of relatively lower amounts.
Paragraphs (e)(1) through (e)(7) of this section provide examples of
aggravated and less serious violations. These examples are illustrative
only, and are not intended to represent an exhaustive list of all
possible types of violations.
(1) The existence of many separate violations, or of violations
committed over an extended period of time, constitutes an aggravating
circumstance. OPM may consider conduct involving a small number of
violations, committed either infrequently or within a brief period of
time, to be less serious.
(2) Violations for which a provider had direct knowledge of the
material facts (for example, submitting claims that the provider knew
to contain false, inaccurate, or misleading information), or for which
the provider did not cooperate with OPM's or an FEHBP carrier's
investigations, constitute aggravating circumstances. OPM may consider
violations where the provider did not have direct knowledge of the
material facts, or in which the provider cooperated with post-violation
investigative efforts, to be less serious.
(3) Violations resulting in substantial damages, losses, and costs
to OPM, the FEHBP, or FEHBP covered persons constitute aggravating
circumstances. Violations producing a small or negligible overall
financial impact may be considered to be less serious.
(4) A pattern of conduct reflecting numerous improper claims, high-
dollar false claims, or improper claims involving several types of
items or services constitutes aggravating circumstances. OPM may
consider a small number of improper claims for relatively low dollar
amounts to be less serious.
(5) Every violation involving any harm, or the risk of harm, to the
health and safety of an FEHBP enrollee, shall be considered an
aggravating circumstance.
(6) Any prior violation described in Sec. 890.1062(b)(5)
constitutes an aggravating circumstance. OPM may consider repeated or
multiple prior violations to represent an especially serious form of
aggravating circumstances.
(7) OPM may consider other circumstances or actions to be
aggravating or less serious within the context of an individual case,
as the interests of justice require.
Sec. 890.1065 Deciding whether to suspend or debar a provider in a
case that also involves penalties and assessments.
In a case where both penalties and assessments and debarment are
proposed concurrently, OPM shall decide the proposed debarment under
the same criteria and procedures as if it had been proposed separately
from penalties and assessments.
Sec. 890.1066 Notice of proposed penalties and assessments.
(a) Written notice. OPM shall inform a provider of proposed
penalties and assessments by written notice, sent via certified mail
with return receipt requested to the provider's last known street or
post office address. OPM may, at its discretion, use an express service
that furnishes a verification of delivery instead of postal mail.
(b) Statutory limitations period. OPM shall send the notice to the
provider within 6 years of the date on which the claim underlying the
proposed penalties and assessments was presented to an FEHBP carrier.
If the proposed penalties and assessments do not involve a claim
presented for payment, OPM shall send the notice within 6 years of the
date of the actions on which the proposed penalties and assessments are
based.
(c) Contents of the notice. OPM's notice shall contain, at a
minimum:
(1) The statement that OPM proposes to impose penalties and/or
assessments against the provider;
(2) Identification of the actions, conduct, and claims that
comprise the basis for the proposed penalties and assessments;
(3) The amount of the proposed penalties and assessments, and an
explanation of how OPM determined those amounts;
(4) The statutory and regulatory bases for the proposed penalties
and assessments; and
(5) Instructions for responding to the notice, including specific
explanations regarding:
(i) the provider's right to contest the imposition and/or amounts
of penalties and assessments before they are formally imposed; and
(ii) OPM's right, if the provider does not contest the proposed
penalties and assessments within 30 days of the date he receives the
notice, to implement them immediately without further administrative
appeal or recourse.
(d) Proposing debarment in the same notice. OPM may propose a
provider's debarment in the same notice that also proposes penalties
and assessments. In this case, the notice shall also provide the
elements of information required to appear in a notice of proposed
debarment under Sec. 890.1006(b).
(e) Procedures if the notice cannot be delivered. OPM shall apply
the provisions of Sec. 890.1006(f) if the notice of proposed penalties
and assessments cannot be delivered as originally addressed.
(f) Sending notice by electronic means. [Reserved]
Sec. 890.1067 Provider contests of proposed penalties and
assessments.
(a) Contesting proposed sanctions. A provider may formally contest
the proposed penalties and assessments by sending a written notice to
the debarring official within 30-days after receiving the notice
described in Sec. 890.1066. The debarring official shall apply the
administrative procedures set forth in Sec. Sec. 890.1069 through 1071
to decide the contest.
(b) Contesting debarments and financial sanctions concurrently. If
OPM proposes debarment and penalties and assessments in the same
notice, the provider may contest both the debarment and the financial
sanctions in the same proceeding. If the provider pursues a combined
contest, the
[[Page 6653]]
requirements set forth in Sec. Sec. 890.1022 through 1024, as well as
this section, apply.
(c) Settling or compromising proposed sanctions. As part of or in
lieu of a contest, a provider may offer to settle the proposed
penalties and assessments. The debarring official has authority to
settle or compromise proposed sanctions at any time before issuing a
final decision under Sec. 890.1071.
Sec. 890.1068 Effect of not contesting proposed penalties and
assessments.
(a) Proposed sanctions may be implemented immediately. If a
provider does not inform the debarring official of his intention to
contest proposed penalties and assessments within the 30-day period set
forth by Sec. 890.1067(a), OPM may implement the proposed sanctions
immediately, without further procedures.
(b) Debarring official sends notice after implementing sanctions.
The debarring official shall send the provider written notice, via
certified return receipt mail or express delivery service, stating:
(1) The amount of penalties and assessments imposed;
(2) The date on which they were imposed; and
(3) The means by which the provider may pay the penalties and
assessments.
(c) No appeal rights. A provider may not pursue a further
administrative or judicial appeal of the debarring official's final
decision implementing any sanctions unless a timely contest was filed
in response to OPM's notice under Sec. 890.1066.
Sec. 890.1069 Information the debarring official shall consider in
deciding a provider's contest of proposed penalties and assessments.
(a) Documentary material and written arguments. As part of the
contest, a provider shall furnish a written statement of reasons why
the proposed penalties and assessments should not be imposed and/or why
the amounts proposed are excessive.
(b) Mandatory disclosures. In addition to any other information
submitted during the contest, the provider shall inform the debarring
official in writing of:
(1) Any existing, proposed, or prior exclusion, debarment, penalty,
assessment, or other sanction that was imposed by a Federal, State, or
local government agency, including any administrative agreement that
purports to affect only a single agency; and
(2) Any current or prior criminal or civil legal proceeding that
was based on the same facts as the penalties and assessments proposed
by OPM.
(c) In-person appearance. A provider may request a personal
appearance (in person, by telephone conference, or through a
representative) to provide testimony and oral arguments to the
debarring official.
Sec. 890.1070 Burdens of proof and standards of evidence in contests
of proposed penalties and assessments.
(a) Previously determined facts. Any facts relating to the basis
for the proposed penalties and assessments that were determined in a
prior due process proceeding are binding on the debarring official in
deciding the contest. Prior due process proceedings are those set forth
in Sec. 890.1025(a)(1) through (4).
(b) Preponderance of the evidence. To impose penalties and
assessments, the debarring official must find that the preponderance of
the evidence in the entire official record demonstrates that the
provider committed a sanctionable violation described in Sec.
890.1061.
(c) Final decision regarding the amount of penalties and
assessments. If the preponderance of the evidence establishes that a
provider committed a sanctionable violation for which penalties and
assessments may be imposed, the debarring official may impose financial
sanctions in amounts not exceeding those proposed in the notice issued
to the provider under Sec. 890.1066.
Sec. 890.1071 Deciding contests of proposed penalties and
assessments.
(a) Debarring official reviews entire official record. After the
provider submits the information and evidence authorized or required by
Sec. 890.1069, the debarring official shall review the entire official
record to determine if the contest can be decided without additional
administrative proceedings, or if an evidentiary hearing is required to
resolve disputed material facts.
(b) Deciding the contest without further proceedings. To decide the
contest without further administrative proceedings, the debarring
official must determine that the evidentiary record contains no bona
fide dispute as to material facts. A ``material fact'' is a fact
essential to determining whether a provider committed a sanctionable
violation for which penalties and assessments may be imposed. If there
are no bona fide disputed material facts, the debarring official shall
apply the provisions of Sec. 890.1070 to reach a final decision of the
contest.
(c) Bona fide dispute about material facts. If the debarring
official determines that the official record contains a bona fide
dispute about any fact material to the basis for the proposed penalties
and assessments, a fact-finding hearing shall be held to resolve the
disputed facts. The provisions of Sec. Sec. 890.1027(b) and (c), 1028,
and 1029(a) and (b) govern such hearings.
(d) Debarring official's decision after fact-finding hearing. After
receiving the results of the fact-finding hearing, the debarring
official shall apply the provisions of Sec. 890.1070 to reach a final
decision of the contest.
Sec. 890.1072 Further appeal rights after final decision to impose
penalties and assessments.
If the debarring official's final decision imposes any penalties
and assessments, the affected provider may appeal it to the appropriate
United States district court under the provisions of 5 U.S.C.
8902a(h)(2).
Sec. 890.1073 Collecting penalties and assessments.
(a) Agreed-upon payment schedule. At the time OPM imposes penalties
and assessments, or the amounts are settled or compromised, the
provider shall be afforded the opportunity to arrange an agreed-upon
payment schedule.
(b) No agreement on payment schedule. In the absence of an agreed-
upon payment schedule, OPM shall collect penalties and assessments
under its regular procedures for resolving debts owed to the Employees
Health Benefits Fund.
(c) Offsets. As part of its debt collection efforts, OPM may
request other Federal agencies to offset the penalties and assessments
against amounts that the agencies may owe to the provider, including
Federal income tax refunds.
(d) Civil lawsuit. If necessary to obtain payment of penalties and
assessments, the United States may file a civil lawsuit as set forth in
5 U.S.C. 8902(i).
(e) Crediting payments. OPM shall deposit payments of penalties and
assessments into the Employees Health Benefits Fund.
[FR Doc. 03-3125 Filed 2-7-03; 8:45 am]
BILLING CODE 6325-52-P