TO:
Health and Human Services Commission Council
DATE:
September 13, 2012
FROM:
Karen Nelson, Deputy Inspector General
HHSC Office of Inspector General
SUBJECT: 6.c.2. Provider Screening and Disclosure Requirements
BACKGROUND: Federal Requirement
Legislative Requirement
Other
The Affordable Care Act (ACA) passed in 2010 and the regulations related to its new provider
screening provisions are codified in Title 42, Code of Federal Regulations, Ch. IV, Subpart EProvider Screening and Enrollment. The ACA includes new provider enrollment requirements
for Medicare, Medicaid, and the Children’s Health Insurance Program. New rules for provider
enrollment are necessary to bring Texas Medicaid into compliance with the new federal
requirements. The federal requirements became effective for states on March 26, 2011; however
the final federal guidance from the Centers for Medicare and Medicaid Services (CMS) was not
available at that time. The states continue to receive guidance from CMS for provider screening
and enrollment.
The existing rules in Chapter 371 include various provisions to ensure Medicaid and other HHS
program integrity by discovering, preventing, and correcting fraud, waste, and abuse.
The new rules in Chapter 371, Subchapter E, in part, are proposed in light of recent state and
federal legislation, including the federal Patient Protection and Affordable Care Act (ACA); the
Texas Human Resources Code §32.0322 and §32.047; and the Texas Health and Safety Code
§62.1561. Additionally, the new rules are being revised to delete unnecessary language, revise or
eliminate obsolete terminology, and to provide better and more helpful organization. Unless
otherwise indicated in this proposal, the new rules do not substantially change current HHSCOIG policy related to providers’ substantive rights or the procedural due process afforded them.
The repeals of §§371.1621, 371.1623, 371.1625, and 371.1627 are proposed to remove them
from Subchapter G and place them with other provider enrollment requirements in Subchapter E.
Concurrently with the Chapter 371 rule package, HHSC proposes to add new Provider
Enrollment Requirements under Title 1, Part 15, Chapter 352, related to provider enrollment.
The new federal provisions include:
 Requirements for providers to re-enroll in Medicare, Medicaid, and the Children’s Health
Insurance Program every 3-5 years. The time period between re-enrollment is determined by
the level of risk associated with the provider type assessed by federal or state agencies.
 Pre- and post-enrollment site visits conducted as part of provider enrollment in accordance
with the level of risk associated with that provider type.
 Stricter ownership and control interest guidelines for corporations and groups.
 Background check requirements and fingerprinting if required.
 Enhanced screening and verification requirements for high risk applicants.
Provider Screening and Disclosure - 1



Additional applicant disclosure requirements.
Collection of application fees from institutional providers as described in federal rule.
Sharing of collected information between the state programs and the federal government.
ISSUES AND ALTERNATIVES:
None.
STAKEHOLDER INVOLVEMENT:
The proposed rules were sent to external stakeholders for review. Comments received from
stakeholders were reviewed by HHSC staff and taken into consideration. External stakeholders
included:
Texas Hospital Association
Texas Association of Health Plans
Texas Medical Association
Texas Osteopathic Medical Association
Texas Ambulance Association
Texas Association of Community Health Centers
Texas Association of Rural Health Clinics
Texas Psychological Association
Texas Association of Psychological Associates
Texas Coalition of Nurses in Advanced Practice
Greater Texas Rehab Provider’s Council
Texas Nursing Association
Texas Occupational Therapy Association
Texas Physical Therapy Association
Texas Speech-Language-Hearing Association
Texas Pharmacy Association
Texas Dental Association
Texas Optometrist Association
Texas Chiropractic Association
Texas Association for Home Care and Hospice
Outpatient Independent Rehabilitation Centers
The proposed rules were presented to the Medical Care Advisory Committee (MCAC) on
August 9, 2012. Public testimony was taken, and the MCAC members voted to not recommend
the rules for publication.
FISCAL IMPACT:
Provider Screening and Disclosure - 2
The program integrity activities will increase workloads for the state's OIG Medicaid Provider
Integrity section (site visits) and Program Integrity Research section (screening). These are new
initiatives; therefore, there are insufficient data to support a cost estimate.
The new subchapter provides procedures for enhanced provider screening and site visits during
initial and periodic screening and during re-enrollment.
All HHS enterprise agencies will implement a new, consolidated screening process that will be
consolidated in the HHSC OIG. The consolidation of enrollment and screening activities at
HHSC is estimated to have no impact to state government, because it is expected that the costs
will net out across the enterprise. The Department of Aging and Disability Services, the
Department of Assistive and Rehabilitative Services, the Department of Family and Protective
Services, and the Department of State Health Services would continue to expend the same
method of finance to support these activities. HHSC would report interagency receipts for the
method of finance on enrollment and screening services performed for the other four HHS
agencies.
Some of the changes made to implement this rule will be technological enhancements and will
have the potential for a 90 percent federal match.
SERVICES IMPACT STATEMENT:
The rules do not directly impact HHSC client services.
RULE DEVELOPMENT SCHEDULE:
August 9, 2012
September 13, 2012
October 2012
December 2012
December 31, 2012
Present to the Medical Care Advisory Committee
Present to HHSC Council
Publish proposed rules in Texas Register
Publish adopted rules in Texas Register
Effective date
REQUESTED ACTION:
The Council recommends to the Executive Commissioner that the proposed rule be
published in the Texas Register and later adopted should there be no substantive
comment.
Provider Screening and Disclosure - 3
TITLE 1
PART 15
CHAPTER 371
ADMINISTRATION
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
MEDICAID AND OTHER HEALTH AND HUMAN SERVICES
FRAUD AND ABUSE PROGRAM INTEGRITY
SUBCHAPTER E
[BEGIN ADDITION] PROVIDER DISCLOSURE AND SCREENING
[END ADDITION] [BEGIN DELETION] OPERATING AGENCY RESPONSIBILITIES
RULE [END DELETION]
SUBCHAPTER G
LEGAL ACTION RELATING TO PROVIDERS OF MEDICAL
ASSISTANCE
PROPOSED PREAMBLE
The Texas Health and Human Services Commission (HHSC) proposes new §§371.1001,
371.1003, 371.1005, 371.1007, 371.1009, 371.1011, 371.1013, 371.1015, and 371.1017,
concerning provider disclosure and screening requirements for Medicaid and other health and
human services (HHS) programs in Texas. HHSC also proposes the repeal of §371.1000,
concerning Provider Re-Enrollment or Provider Contract Modification; §371.1621, concerning
Provider Enrollment; §371.1623, concerning Criminal History Checks; §371.1625, concerning
Use of Criminal History Information; and §371.1627, concerning Administrative Review of
Rejection of Provider Enrollment by Reason of Criminal History.
HHSC intends that any obligations or requirements that accrued under Chapter 371, Subchapter
E before the effective date of these rules will be governed by the prior rules in Subchapter E, and
that those rules continue in effect for this purpose. HHSC does not intend for the repeal or
enactment of the rules in Subchapter E to affect the prior operation of the rules; any prior actions
taken under the rules; any validation, cure, right, privilege, obligation, or liability previously
acquired, accrued, accorded, or incurred under the rules; any violation of the rules or any
penalty, forfeiture, or punishment incurred under the rules before their amendment or repeal; or
any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty,
forfeiture, or punishment. HHSC additionally intends that any investigation, proceeding, or
remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment
imposed, as if the rules had not been repealed or amended.
HHSC intends that should any sentence, paragraph, subdivision, clause, phrase, or section of the
amended or new rules in Subchapter E be determined, adjudged, or held to be unconstitutional,
illegal or invalid, the same shall not affect the validity of the subchapter as a whole, or any part
or provision hereof other than the part so declared to be unconstitutional, illegal, or invalid, and
shall not affect the validity of the subchapter as a whole.
Background and Justification
The existing rules in Chapter 371 include various provisions to ensure Medicaid and other HHS
program integrity by discovering, preventing, and correcting fraud, waste, and abuse.
Provider Screening and Disclosure - 4
The new rules in Chapter 371, Subchapter E, in part, are proposed in light of recent state and
federal legislation, including the federal Patient Protection and Affordable Care Act (ACA); the
Texas Human Resources Code §32.0322 and §32.047; and the Texas Health and Safety Code
§62.1561.
The new federal provisions include:
- Requirements for providers to re-enroll in Medicare, Medicaid, and the Children’s Health
Insurance Program every 3-5 years. The time period between re-enrollment is determined by the
level of risk associated with the provider type assessed by federal or state agencies.
- Pre- and post-enrollment site visits conducted as part of provider enrollment in accordance
with the level of risk associated with that provider type.
- Stricter ownership and control interest guidelines for corporations and groups.
- Background check requirements and fingerprinting if required.
- Enhanced screening and verification requirements for high risk applicants.
- Additional applicant disclosure requirements.
- Collection of application fees from institutional providers as described in federal rule.
- Sharing of collected information between state programs and the federal government.
Additionally, the new rules are being revised to delete unnecessary language, revise or eliminate
obsolete terminology, and to provide better and more helpful organization. The repeals of
§§371.1621, 371.1623, 371.1625, and 371.1627 are proposed to remove them from Subchapter
G and place them with other provider enrollment requirements in Subchapter E.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (the
Administrative Procedure Act). HHSC has reviewed all sections in Chapter 371, Subchapter E,
and has determined that, although the reasons for adopting rules governing Medicaid program
integrity continue to exist, some provisions of Subchapter E are obsolete or unnecessary and
need updating..
Section-by-Section Summary
Subchapter E changing from Operating Agency Responsibilities to Provider Disclosure and
Screening.
Proposed new §371.1001 sets out the applicability of the rules in Subchapter E.
Proposed new §371.1003 includes definitions that apply to the requirements of Subchapter E.
Proposed new §371.1005 prescribes the requirements for disclosure as part of the provider
screening and enrollment process.
Proposed new §371.1007 describes the screening levels that may apply to provider applicants
and provides that applicants with certain histories may be categorized as a higher risk for
screening purposes.
Provider Screening and Disclosure - 5
Proposed new §371.1009 identifies the level of screening efforts that will apply to each
screening level.
Proposed new §371.1011 identifies the grounds that may render an applicant ineligible to
participate as a provider in a Medicaid program or constitute a basis for denying the application.
It further provides that HHSC may conduct a case-by-case eligibility determination despite a
disqualifying condition and identifies the factors that will be considered in that determination.
Proposed new §371.1013 provides that the HHSC Office of Inspector General will make an
enrollment recommendation to HHSC, which HHSC will use in arriving at a final enrollment
determination. It describes the types of recommendations, the factors that may be considered in
making the recommendation, and grants an informal desk review to any applicant whose
application has been denied or abated.
Proposed new §371.1015 governs the types of provider enrollment recommendations.
Proposed new §371.1017 incorporates the new requirement that providers of other health and
human services programs reapply, be rescreened, and re-enroll at least every five years.
Fiscal Note
Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that there
is insufficient data to calculate the fiscal impact to state government. The new rules provide
procedures for enforcement of several new program integrity initiatives enacted in the Patient
Protection and Affordable Care Act and ensuing state legislation. These activities will increase
workloads and litigation for the State’s OIG Medicaid Provider Integrity and Provider Integrity
Research sections. These are new initiatives and there is no data to provide a related cost
estimate.
It is assumed that the cost of enrollment and screening will be offset at least in part by the
collection of the provider application fee required in law. Costs in excess of fees collected
would be matched at the regular Medicaid rates for administration. Upon prior approval, CMS
pays a match rate of 90% for implementation of MMIS systems to support the new ACA
provider screening and enrollment provisions. For ongoing operational staff performing
Medicaid functions, the match rates will be 75%Federal:25%State for staff who are licensed
medical professionals and 50%Federal:50%State for staff who are not. Any collections in
excess of related costs must be returned to the federal government.
The proposed rule will not result in any fiscal implications for local health and human services
agencies. Local governments will not incur additional costs.
Small Business and Micro-business Impact Analysis
Ms. Rymal has also determined that there could be an effect on small businesses or micro
businesses to comply with the proposed/repealed rules, as they could be required to pay an
enrollment fee even though they are providers for a state-only program.
Provider Screening and Disclosure - 6
HHSC and its designee must collect the applicable application fee prior to executing a provider
agreement from a prospective or re-enrolling provider. Certain providers enrolled as
“organizations” and recognized as small or micro-businesses, such as durable medical
equipment, or Non-emergency Medical Transportation Program providers, will be required to
pay the application fee unless they have paid a fee to Medicare, another state’s Medicaid agency,
or CHIP. The estimated total number of providers who are subjected to application fee
requirement is 13,775. If the State demonstrates that the imposition of fee would impede
beneficiary access to care, CMS may grant a hardship exception on a broader or categorical basis
for certain Medicaid provider types or geographical areas.
Cost to Persons and Effect on Local Economies
HHSC anticipates that there may be economic costs to persons required to comply with this
proposal. Those costs could include increased photocopying, information resources, human
resources and possible application fees, if not already paid to another state or to the federal
government. These rules will not have an impact on local employment.
Public Benefit
Karen Nelson, Chief Counsel for the Office of Inspector General, determined that for the first
five years the proposal is in effect, the public benefit expected as a result of enforcing the
proposal is that enhanced program integrity measures that occur prior to admission could result
in fewer instances of provider fraud, waste, or abuse in the future, thus providing better oversight
of the public's tax dollars.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by
§2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a
rule the specific intent of which is to protect the environment or reduce risks to human health
from environmental exposure and that may adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the environment, or the public health and
safety of a state or a sector of the state. This proposal is not specifically intended to protect the
environment or reduce risks to human health from environmental exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her
private real property that would otherwise exist in the absence of government action and,
therefore, does not constitute a taking under §2007.043 of the Texas Government Code.
Public Comment
Written comments on the proposal may be submitted to Casandra Carreno, Texas Health and
Human Services Commission, P.O. Box 85200, MC H-400, Austin, Texas 78708-5200; by fax to
Provider Screening and Disclosure - 7
(512) 833-6484; or by e-mail to Cassandra.Carreno@hhsc.state.tx.us within 30 days of
publication in the Texas Register.
Legal Authority
The new sections and repeals are proposed under Texas Government Code §531.033, which
provides the Executive Commissioner of HHSC with broad rulemaking authority; Human
Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with
the authority to administer the federal medical assistance (Medicaid) program in Texas, to
administer Medicaid funds, and to adopt rules necessary for the proper and efficient operation of
the Medicaid program; and Texas Human Resources Code §32.0322, which directs HHSC to
establish certain provider screening, disclosure, and verification criteria by rule.
The new sections and repeals affect Texas Government Code, Chapter 531, and Human
Resources Code, Chapter 32. No other statutes, articles or codes are affected by the proposal.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to
be within the agency's legal authority to adopt.
Provider Screening and Disclosure - 8
Legend:
[begin addition] Single Underline [end addition] = Proposed new language
[begin deletion] Strikethrough and brackets [end deletion] = Current language proposed for
deletion
Regular print = Current language
(No change.) = No changes are being considered for the designated subdivision.
TITLE 1
PART 15
CHAPTER 371
ADMINISTRATION
TEXAS HEALTH AND HUMAN SERVICESCOMMISSION
MEDICAID AND OTHER HEALTH AND HUMAN SERVICES
PROGRAM FRAUD AND ABUSE PROGRAM INTEGRITY
SUBCHAPTER E
[begin addition] PROVIDER DISCLOSURE AND SCREENING [end
addition] [begin deletion] OPERATING AGENCY RESPONSIBILITIES RULE [end deletion]
RULES
§371.1001. Applicability
§371.1003. Definitions
§371.1005. Disclosure Requirements
§371.1007. Screening Levels
§371.1009. Verifications Required for Each Screening Level
§371.1011. Recommendation Criteria
§371.1013. Provider Enrollment Recommendations
§371.1015. Types of Provider Enrollment Recommendations
§371.1017. Provider Re-enrollment for Other Health and Human Services
Programs
[begin addition] §371.1001. Applicability.
(a) This subchapter describes the disclosure requirements for applications and screening
criteria used by HHSC in making an enrollment determination.
(b) This subchapter applies to all applicants for enrollment as a provider in:
(1) Medicaid:
(2) the Children’s Health Insurance Program; or
(3) any other health and human services program that processes enrollment applications
through HHSC or its designee or that must meet all Medicaid standards as a condition of
enrollment.
§371.1003. Definitions.
The following words and terms, when used in this subchapter, have the following meanings,
unless the context clearly indicates otherwise:
Provider Screening and Disclosure - 9
(1) Agent--Any person, company, firm, corporation, employee, independent contractor, or
other entity or association legally acting for or in the place of another person or entity.
(2) Applicant--An individual or an entity that has filed an enrollment application to become a
provider, re-enroll as a provider, or enroll a new practice location in Medicaid or other health and
human services programs.
(3) Children's Health Insurance Program (CHIP)--The Texas State Children's Health
Insurance Program established under Title XXI of the federal Social Security Act (42 U.S.C.
§§1397aa, et seq.) and Chapter 62 of the Health and Safety Code.
(4) Creditor--A person with a five percent or more ownership of a mortgage, deed of trust,
note, or other obligation (debt) of the provider or applicant that is secured by five percent or
more of the value of the property (assets) of the provider or applicant.
(5) Enrollment application--A form prescribed by the Texas Health and Human Services
Commission (HHSC) that a provider or applicant submits to HHSC or its designee to enroll or
re-enroll as a provider.
(6) Health and human services agency--A state agency identified in §531.001(4) of the
Government Code.
(7) HHSC--The Texas Health and Human Services Commission.
(8) Indirect ownership--An ownership interest as defined in 42 C.F.R. §455.101 and
determined according to the methodology provided in 42 C.F.R. §455.102.
(9) Manager; managing employee--An individual who exercises operational or managerial
control over an institution, organization, or agency, or who directly or indirectly conducts the
day-to-day operations of the entity.
(10) Medicaid--The medical assistance program authorized under Chapter 32 of the Human
Resources Code.
(11) Medicaid and other health and human services programs--State and federal programs,
including the medical assistance program, CHIP, and any programs administered by HHSC or a
health and human services agency, that pay for certain medical and health care costs for people
who qualify.
(12) Medical assistance--A medical or health care related service, item, benefit, or supply.
(13) Overpayment--A payment made to a provider in excess of the amount that is allowable
for the service provided, plus any accrued interest.
Provider Screening and Disclosure - 10
(14) Person with an ownership or control interest--Every person that is a manager, creditor,
agent, or subcontractor of the provider or applicant, as defined in §371.1005 of this subchapter
(relating to Disclosure Requirements), that:
(A) has a direct ownership interest of five percent or more in the provider or applicant;
(B) has an indirect ownership interest of five percent or more in the provider or applicant;
(C) has a combination of direct and indirect ownership interests equal to five percent or
more in the provider or applicant;
(D) owns an interest of five percent or more in any mortgage, deed of trust, note, or other
obligation secured by the provider or applicant if that interest equals at least five percent of the
value of the property or assets of the provider or applicant;
(E) is an officer or director of a provider or applicant that is organized as a corporate
entity; or
(F) is a partner in a provider or applicant that is organized as a partnership.
(15) Provider--An applicant that successfully completes the enrollment process outlined in
this chapter, Chapter 352 of this title (relating to Medicaid and Children's Health Insurance
Program Provider Enrollment), if applicable, or another health and human services program.
(16) Provider agreement--An agreement between HHSC and a provider wherein the provider
agrees to certain contract provisions as a condition of participation.
(17) Re-enrollment--Includes application, screening, revalidation, rescreening, updating, and
any other applicable requirements for continuing or renewing a provider's contractual
relationship with Medicaid or other health and human services programs.
(18) Screening level--A category of “Limited,” “Moderate,” or “High” assigned to an
applicant or provider based on criteria in §352.9 of this title (relating to Screening Levels), if
applicable, or §371.1007 of this subchapter (relating to Screening Levels), if applicable. The
screening level determines the type of verifications required for an applicant or provider.
(19) Subcontractor--A person:
(A) to which a provider or applicant has contracted or delegated some of its management
functions or responsibilities of providing medical assistance, or any responsibility of providing
medical assistance; or
(B) with which a fiscal agent has entered into a contract, agreement, purchase order, or
lease to obtain space, supplies, equipment, or services provided under the provider agreement.
(20) Terminated--Means:
Provider Screening and Disclosure - 11
(A) with respect to a Medicaid or CHIP provider, an action taken by a state Medicaid
program or CHIP to revoke the provider's billing privileges, and the provider has exhausted all
applicable appeal rights or the timeline for appeal has expired; and
(B) with respect to a Medicare or other HHS program provider, supplier, or eligible
professional, the revocation by Medicare or other HHS program of the provider's or supplier's
billing privileges, and the provider has exhausted all applicable appeal rights or the timeline for
appeal has expired.
(21) Terminated for cause--Termination based on allegations related to fraud, program
violations, integrity, or improper quality of care.
§371.1005. Disclosure Requirements.
(a) Ownership or control. An applicant must disclose in its enrollment application the identity
of any person or entity as requested by HHSC. The applicant's disclosures must include every
person with an ownership or control interest in the applicant or provider, as follows:
(1) Owners. A person with direct or indirect ownership of five percent or more of the
capital, the stock, the assets, or the profits of the applicant or provider.
(2) Subcontractors. A person that is a subcontractor of the applicant:
(A) if the applicant holds a direct or indirect ownership interest of five percent or
more of the capital, the stock, the assets or the profits of the subcontractor; or
(B) if requested by HHSC, has had business transactions with the provider or
applicant totaling more than $25,000 during the 12-month period before the date of the
enrollment application.
(3) Creditors. A person with a five percent or more ownership interest in a mortgage,
deed of trust, note, or other obligation or debt of the applicant if the debt is secured by five
percent or more of the applicant's property or other assets.
(4) Managers. A person who exercises operational or managerial control over the
applicant or provider, and every person who directly or indirectly conducts the day-to-day
operations of the applicant or provider at any location.
(5) Agents. A person with the direct, delegated, or apparent authority to bind, obligate, or
act on behalf of the applicant or provider.
(b) Former ownership or control. An applicant must disclose in its enrollment application
every person that previously had an ownership or control interest in the applicant as specified in
subsection (a) of this section, but whose interest was transferred to another person, if:
Provider Screening and Disclosure - 12
(1) the person's former interest was transferred to an immediate family member or to a
member of the person's household; and
(2) the person's former interest was transferred within one year before or at any time after
receiving notice of any of the following potential adverse actions against the person or against a
provider for which the person has or had an ownership or control interest:
(A) the assessment of a civil monetary penalty;
(B) the imposition of an exclusion;
(C) an indictment or conviction for a criminal offense as described in §1128(a) or
§1128(b)(1), (2), or (3) of the Social Security Act (42 U.S.C. 1320a--7(a) or 42 U.S.C. 1320a-7(b)(1), (2), or (3));
(D) the imposition of an administrative sanction for a violation of Medicaid or other
health and human services programs;
(E) the loss, revocation, or suspension of a professional license, or the voluntary
surrender of a professional license in lieu of or to avoid loss, revocation, suspension, or other
disciplinary board action; or
(F) notice that a state or federal agency has opened an investigation into allegations
that could warrant any of the adverse actions identified in this paragraph.
(c) Information subject to disclosure. An applicant must disclose in the enrollment
application all information required by state or federal law, and all other information requested
by HHSC, in its discretion, during the provider screening and enrollment process. The applicant's
disclosure of a person described in subsections (a) and (b) of this section must include:
(1) For every person who is an individual:
(A) the individual's full name;
(B) every alias or other name the individual has ever used (including maiden name);
(C) the individual's social security number;
(D) the individual's date of birth;
(E) the individual's driver's license number, expiration date, and issuing state (or, as
applicable, the individual's other state-issued identification number, expiration date, and issuing
state);
Provider Screening and Disclosure - 13
(F) the individual's relationship to each other individual with a current or former
ownership or control interest in the applicant or provider, as described in subsection (a) and (b)
of this section, if the relationship is that of:
(i) a husband or wife; or
(ii) a natural or adoptive parent, child, or sibling;
(G) the following about each other provider or former provider in which the
individual has or previously had an ownership or control interest:
(i) the name of the provider;
(ii) the provider's federal tax identification number;
(iii) the provider's national provider identifier;
(iv) the individual's relationship to the other provider;
(v) every pending or former sanction or adverse action regarding the provider
relating to its participation in Medicaid and other health and human services programs; and
(vi) whether the provider has failed to repay an overpayment;
(H) every criminal conviction of the individual as defined in 42 C.F.R. §1001.2;
(I) every arrest for a criminal offense or criminal charge against the individual for
which the disposition is pending;
(J) whether the individual has received notification of an intent to exclude the
individual from participation in Medicaid or other health and human services programs for which
the disposition is pending;
(K) every current or former exclusion of the individual from participation in Medicaid
and other health and human services programs;
(L) whether the individual has received notification of an intent to impose a sanction
or other adverse action against the individual relating to participation in Medicaid and other
health and human services programs;
(M) every current or former sanction or other adverse action imposed against the
individual relating to participation in Medicaid and other health and human services programs;
(N) every board action, disciplinary action, or adverse action relating to the
individual's professional license, certification, or accreditation;
Provider Screening and Disclosure - 14
(O) whether the individual has failed to repay an overpayment as specified in
§371.1011 of this subchapter (relating to Recommendation Criteria);
(P) whether the individual currently has or formerly had an ownership or control
interest in a provider that has failed to repay an overpayment as specified in §371.1011 of this
subchapter; and
(Q) whether the individual is currently subject to court-ordered child support
payments and, if so, whether the person is in arrears on any court-ordered child support
payments for 30 days or longer.
(2) For every person that is a legal entity:
(A) the legal name of the entity;
(B) every name under which the entity conducts business or its activities, or formerly
conducted business or its activities;
(C) the federal tax identification number of the entity;
(D) the entity's primary business address as well as every business location and
mailing address;
(E) the following about each other provider or former provider in which the entity has
or previously had an ownership or control interest:
(i) the name of the provider;
(ii) the provider's federal tax identification number;
(iii) the provider's national provider identifier;
(iv) the entity's relationship to the other provider;
(v) every pending or former sanction or adverse action regarding the provider
relating to its participation in Medicaid and other health and human services programs; and
(vi) whether the provider has failed to repay an overpayment;
(F) every criminal conviction of the entity;
(G) every arrest for a criminal offense or criminal charge against the entity for which
the disposition is pending;
Provider Screening and Disclosure - 15
(H) whether the entity has received notification of an intent to exclude the entity from
participation in Medicaid or other health and human services programs for which the disposition
is pending;
(I) every current or former exclusion of the entity from participation in Medicaid and
other health and human services programs;
(J) whether the entity has received notification of an intent to impose a sanction or
other adverse action against the entity relating to participation in Medicaid and other health and
human services programs;
(K) every current or former sanction or other adverse action imposed against the
entity relating to participation in Medicaid and other health and human services programs;
(L) every board action, disciplinary action, or adverse action relating to the entity's
license, certification, or accreditation;
(M) whether the entity has failed to repay an overpayment as specified in §371.1011
of this subchapter; and
(N) whether the entity currently has or formerly had an ownership or control interest
in a provider that has failed to repay an overpayment as specified in §371.1011 of this
subchapter.
(d) Continuing duty to disclose. If any information required to be disclosed under this section
changes during the processing of an enrollment application, the applicant or provider must:
(1) update the enrollment application on or before the deadline imposed by the provider
agreement; and
(2) ensure that the final version of the enrollment application contains updated and
accurate information.
(e) A failure by an applicant, provider, or person to meet any of the disclosure requirements
specified in this section constitutes a material non-disclosure of relevant information.
(f) A health and human services agency may submit to HHSC any information held by that
agency that relates to information required to be disclosed. HHSC may use such information in
lieu of requiring another submission of the same information by the applicant.
§371.1007. Screening Levels.
(a) Assignment of screening level. HHSC or the HHSC Office of Inspector General assigns
applicants a screening level of “Limited,” “Moderate,” or “High” risk in accordance with §352.9
of this title (relating to Screening Levels), if applicable, or the criteria in subsection (b) of this
section. HHSC Office of Inspector General uses an applicant's screening level to determine the
Provider Screening and Disclosure - 16
verifications and further screening required under §371.1009 of this subchapter (relating to
Verifications Required for Each Screening Level) or §352.9 of this title (relating to Screening
Levels), if applicable, if applicable. A screening level assigned under this subsection is within
the sole discretion of HHSC and is not subject to administrative review.
(b) Case-by-case determination of screening levels. For any enrollment application of a
health and human services program other than Medicaid or CHIP, HHSC Office of Inspector
General may, in its sole discretion and on a case-by-case basis, assign a higher or lower
screening level if any of the following situations have applied to the applicant or to any person
required to be disclosed in the enrollment application in accordance with §371.1005 of this
subchapter (relating to Disclosure Requirements) during the three years before the date of the
enrollment application or at any time thereafter, except as described in paragraph (7) of this
subsection:
(1) the person is or was subject to a sanction action, as defined in Subchapter G of this
chapter (relating to Administrative Actions and Sanctions);
(2) the person is or was subject to an administrative action;
(3) the person is or was under investigation or subject to audit findings by the HHSC
Office of Inspector General (OIG), the Texas Office of Attorney General's Medicaid Fraud
Control Unit or Civil Medicaid Fraud Division, or any other federal or state investigative,
regulatory, or auditing authority relating to the person's participation in a Medicaid or other
health and human services program;
(4) the person is or was subject to an order or other adverse action, including the person's
voluntary surrender in lieu of adverse action, imposed by the person's licensing, certification, or
credentialing authority;
(5) the person is or was under a corporate integrity agreement or corporate compliance
agreement related to fraud or abuse in Medicaid or other health and human services programs;
(6) the person is or was subject to the terms of a settlement agreement with HHSC, the
Texas Office of Attorney General's Medicaid Fraud Control Unit or Civil Medicaid Fraud
Division, or any other federal or state investigative, regulatory, or auditing authority relating to
the person's participation in Medicaid or other health and human services programs; or
(7) the person is or was listed in any of the following databases during the ten years
before the date of the enrollment application or at any time thereafter:
(A) the federal List of Excluded Individuals/Entities (LEIE);
(B) the federal Excluded Parties List System (EPLS);
(C) the HHSC OIG List of Excluded Individuals/Entities;
Provider Screening and Disclosure - 17
(D) the Texas Comptroller database of debarred persons; or
(E) any other Medicaid or other health and human services program's database or list
of individuals or entities or persons terminated, terminated for cause, or otherwise prohibited
from participating in a state or federally funded contract;
(8) the existence of any relevant mitigating factors; or
(9) other evidence of fitness that may be relevant.
(c) Assignment of a "High" screening level. Notwithstanding any other determination under
this section, HHSC will apply a "High" screening level in any of the following situations:
(1) The applicant or any person required to be disclosed in the enrollment application is
under a payment suspension based on a credible allegation of fraud.
(2) The applicant or any person required to be disclosed in the enrollment application has
failed to repay any overpayments incurred under Medicaid and other health and human services
programs.
(3) The applicant or any person required to be disclosed in the enrollment application was
excluded from participation in Medicaid or other health and human services program during the
ten years before the date of the enrollment application.
(4) The applicant is seeking enrollment as a provider type that was subject to a state or
federal temporary moratorium, if the moratorium was lifted within six months before the date of
the enrollment application.
§371.1009. Verifications Required for Each Screening Level.
(a) For an applicant or provider assigned a screening level of “Limited,” the Texas Health
and Human Services Commission (HHSC) verifies the following items in addition to the items
set forth in §352.9 of this title (relating to Screening Levels), if applicable:
(1) the accuracy and completeness of the information in or related to the enrollment
application;
(2) the validity and status of the professional licensure, certification, or accreditation in
Texas and in each other state of the applicant, its employees and contractors, and any person
required to be disclosed in accordance with §371.1005 of this subchapter (relating to Disclosure
Requirements), past or current adverse actions by any licensing, certification, or accreditation
authority, and representations made by the applicant to the licensing, certification, or
accreditation authority by the applicant or person required to be disclosed;
(3) whether the applicant and any person required to be disclosed in accordance with
§371.1005 of this subchapter are ineligible to participate due to an exclusion, termination,
Provider Screening and Disclosure - 18
termination for cause, or other prohibition from participation in a health or human service
program;
(4) that the applicant meets any specific enrollment requirements for that provider type
under any health and human services program policy;
(5) the social security number, the national provider identifier, employer identification
number, tax delinquency, and death of any individual practitioner, owner, authorized official,
delegated official, or supervising physician; and
(6) whether the applicant or any person required to be disclosed in accordance with
§371.1005 of this subchapter has been arrested for or charged with a crime or has a criminal
conviction, other than a class C misdemeanor traffic violation.
(b) For an applicant assigned a screening level of “Moderate,” HHSC:
(1) verifies all items described in subsection (a) of this section; and
(2) performs at least one unscheduled and unannounced pre- and post-enrollment site
visits, as described in subsection (d) of this section and in accordance with §352.9 of this title
(relating to Screening Levels), if applicable.
(c) For an applicant or provider assigned a screening level of “High,” HHSC performs:
(1) all the verifications described in subsections (a) and (b) of this section; and
(2) a fingerprint-based criminal history check , in the form and manner prescribed by
state or federal law, of each person that is an individual and has an ownership or control interest
as defined in §371.1005 of this subchapter in the applicant.
(d) An unscheduled and unannounced pre- or post-enrollment site visit conducted in
accordance with subsections (b) and (c) of this section verifies compliance with state and federal
law, rule, and policy governing Medicaid and other health and human services programs.
Documents compiled or maintained by the HHSC Office of Inspector General in connection with
a site visit are confidential pursuant to Texas Government Code §531.1021(g) and (h).
(e) Except as provided in subsection (f) of this section, as a condition of the applicant's
eligibility to enroll as a provider, each individual described in subsection (c)(2) of this section
must:
(1) consent to a criminal history background check; and
(2) if required by law and requested by HHSC, submit a set of fingerprints in the form
and manner requested, for use in conducting a criminal background check, within 30 days of
receiving the request.
Provider Screening and Disclosure - 19
(f) HHSC, in its sole discretion, may accept previously submitted fingerprints if an individual
has been subjected to a fingerprint-based criminal history check by a licensing or regulatory
authority or by another state's medical assistance program and the results are made available to
HHSC.
§371.1011. Recommendation Criteria.
(a) Except as provided by subsection (b) of this section, HHSC Office of Inspector General
may recommend denial of an enrollment application if the applicant or a person required to be
disclosed in accordance with §371.1005 of this subchapter (relating to Disclosure Requirements)
has been convicted, as defined in 42 C.F.R. §1001.2, for any of the following:
(1) an offense under the Texas Penal Code;
(2) any conviction under federal law or the law of another state that prohibits the conduct
described in the Texas Penal Code;
(3) any conviction for a federal offense under the Racketeer Influenced and Corrupt
Organizations Act, the federal False Claims Act, or any other federal criminal violation related to
fraud, deception, obstruction, or tampering with a government document;
(4) any conviction for a state criminal offense related to fraud, deception, obstruction, or
tampering with a government document;
(5) any other conviction under federal law or the law of any state resulting from
participation in a health and human services program or any program under Titles V, XVIII,
XIX, and XX of the Social Security Act;
(6) any conviction under federal law or the law of any state relating to dangerous drugs,
controlled substances, or any other drug-related offense, including the unlawful manufacture,
distribution, prescription, dispensing, or possession of a controlled substance; or
(7) any conviction for aiding and abetting any of the offenses listed in paragraphs (1) - (6)
of this subsection, or for conspiracy to commit any of these offenses.
(b) On a case-by-case basis, the HHSC Office of Inspector General may recommend
approval of an enrollment application despite the existence of one or more otherwise
disqualifying conditions as described in subsection (a) of this section. The case-by-case
recommendation for approval will be made by considering the following circumstances:
(1) the number of criminal convictions;
(2) the nature and seriousness of the crime;
(3) whether the individual or entity has completed the sentence, punishment, or other
requirements that were imposed for the crime and, if so, the length of time since completion;
Provider Screening and Disclosure - 20
(4) in the case of an individual, the age of the individual at the time the crime was
committed;
(5) whether the crime was committed in connection with the individual's or entity's
participation in Medicaid or other health and human services programs;
(6) the extent of the individual's or entity's rehabilitation efforts and outcome;
(7) the conduct of the individual or entity, and the work history of the individual, both
before and after the crime;
(8) the relationship of the crime to the individual or entity's fitness or capacity to remain a
provider or become a provider;
(9) whether approving the individual or entity would offer the individual or entity the
opportunity to engage in further criminal activity;
(10) the extent to which the individual or entity provides relevant information or
otherwise demonstrates that approval should be granted; and
(11) any other circumstances that HHSC determines are relevant to the individual or
entity's eligibility.
(c) In making a case-by-case recommendation, an applicant is presumed to be ineligible if the
applicant or person required to be disclosed has been convicted as defined in 42 C.F.R. §1001.2
of certain offenses. The applicant must submit affirmative evidence of the mitigating factors in
subsection (b) to rebut the presumption if the conviction was for:
(1) Chapter 19 (criminal homicide);
(2) Chapter 20 (kidnapping and false imprisonment);
(3) Chapter 21 (sexual offenses);
(4) Chapter 20A (trafficking of persons);
(5) Chapter 22 (assaultive offenses);
(6) Chapter 25 (offenses against the family);
(7) Chapter 28 (arson);
(8) Chapter 29 (robbery);
(9) Chapter 30 (burglary and criminal trespass);
Provider Screening and Disclosure - 21
(10) Chapter 31 (theft);
(11) Chapter 32 (fraud);
(12) Chapter 33 (computer crimes);
(13) Chapter 34 (money laundering);
(14) Chapter 35 (insurance fraud);
(15) Chapter 35A (Medicaid fraud);
(16) Chapter 36 (bribery and corrupt influence);
(17) Chapter 37 (perjury and other falsifications);
(18) Sections 43.05 and 43.23 - 43.26 (obscenity offenses related to children);
(19) Chapter 46 (weapons);
(20) Section 48.02 (purchase or sale of human organs);
(21) Sections 49.04 - 49.09 (certain intoxication offenses);
(22) Section 71.02 (engaging in organized criminal activity);
(23) any conviction under federal law or the law of another state that prohibits the
conduct described in paragraphs (1) - (22) of this subsection; or
(24) any offense listed in subsection (a)(3) - (7) of this section.
(d) Notwithstanding subsections (b) and (c) of this section, an enrollment application for
other health and human services programs will be permanently denied if:
(1) the applicant, provider, or a person required to be disclosed has been convicted of an
offense arising from a fraudulent act under Medicaid or other health and human services
programs; and
(2) that fraudulent act resulted in injury to an elderly person, a person with a disability, or
a person younger than 18 years of age.
(e) HHSC Office of Inspector General will recommend denial of an enrollment application if:
(1) the applicant or a person required to be disclosed with a five percent or greater direct
or indirect ownership interest in the provider did not submit timely and accurate information and
failed to cooperate with any provider screening methods;
Provider Screening and Disclosure - 22
(2) the applicant or a person required to be disclosed failed to submit timely and accurate
information on the enrollment application, unless HHSC determines that denial is not in the best
interests of Medicaid or other health and human services programs and documents that
determination in writing;
(3) the applicant or a person required to be disclosed refuses to permit access for a site
visit, unless HHSC determines that denial is not in the best interests of Medicaid or other health
and human services programs and documents that determination in writing;
(4) the applicant or a person required to be disclosed fails to submit a set of fingerprints
within 30 days after receiving a request from HHSC, unless HHSC determines that denial is not
in the best interests of the Texas health and human service program and documents its
determination in writing;
(5) HHSC determines that the applicant or a person required to be disclosed has been
convicted of any criminal offense related to that person's involvement with the Medicare,
Medicaid, or Title XXI program in the past ten years, unless HHSC determines that denial is not
in the best interests of Medicaid or other health and human programs and documents that
determination in writing;
(6) the applicant or a person required to be disclosed has failed to repay overpayments to
Medicaid or other health or human services programs; or
(7) the applicant, provider, a person required to be disclosed, or a person who owns,
controls, manages, or is otherwise affiliated with and has financial, managerial, or administrative
influence over a provider has been suspended or prohibited from participating, excluded,
terminated, or debarred from participating in any state Medicaid or other health and human
services programs.
(f) An enrollment application may be denied if the applicant, provider, or a person required
to be disclosed has participated in Medicaid or other health and human services programs and
failed to bill for medical assistance or refer clients for medical assistance within the 12-month
period prior to submission of the enrollment application.
(g) An enrollment application may be denied on the basis of information revealed through a
criminal history check on the applicant, provider, or a person required to be disclosed.
(h) An enrollment application may be denied if the applicant, provider, or a person required
to be disclosed has falsified any information on the enrollment application.
(i) An enrollment application may be denied if HHSC is unable to verify the identity of the
applicant, provider, or a person required to be disclosed.
§371.1013. Provider Enrollment Recommendations.
Provider Screening and Disclosure - 23
(a) HHSC Office of Inspector General (HHSC-OIG) makes a recommendation on each
enrollment application filed in accordance with the requirements of this subchapter, Chapter 352
of this title (relating to Medicaid and Children’s Health Insurance Program Provider Enrollment),
or other rule, as applicable.
(1) HHSC-OIG's recommendation is based on the criteria set out in subsection (b) of this
section.
(2) The recommendation is at the sole discretion of HHSC-OIG, and is not subject to
administrative review or reconsideration.
(b) In making its enrollment recommendation, HHSC-OIG may consider any relevant factor
as it applies to the applicant, provider, or any person required to be disclosed in the enrollment
application in accordance with §371.1005 of this subchapter (relating to Disclosure
Requirements) and Chapter 352 of this title (relating to Medicaid and Children’s Health
Insurance Program Provider Enrollment), if applicable, including:
(1) access to medical assistance for program recipients;
(2) whether the applicant complied with the requirements of this subchapter;
(3) other criteria, including:
(A) the applicability of any temporary moratoria;
(B) the enrollment prerequisites as specified in rule or policy;
(C) compliance with the disclosure requirements;
(D) the results of the screening and verifications;
(E) criteria in §371.1011 of this subchapter (relating to Recommendation Criteria);
and
(F) criteria relating to out-of-state applicants;
(4) the applicant or disclosed person's current or previous conduct, including such
conduct in relation to the applicant's participation in Medicaid or other health and human
services programs;
(5) the investigative findings in any current or previous investigation of the applicant,
provider, or of any person required to be disclosed;
(6) licensure, certification, or accreditation related actions against the applicant, provider,
or any person required to be disclosed;
Provider Screening and Disclosure - 24
(7) any relevant information provided by Medicaid or other health and human services
program; and
(8) any other criteria for participation as a provider as specified in Medicaid or other
HHS program policy.
§371.1015. Types of Provider Enrollment Recommendations.
(a) Upon making a recommendation on an enrollment application, HHSC Office of Inspector
General informs HHSC or other health and human service program of its recommendation.
HHSC or other health and human service program makes the final enrollment decision after
considering:
(1) HHSC Office of Inspector General's recommendation;
(2) any conditions for approval recommended by HHSC Office of Inspector General;
(3) the availability of access to care; and
(4) any other relevant facts or circumstances
(b) HHSC Office of Inspector General may make the following types of recommendations
regarding an enrollment application:
(1) Approval. If an enrollment application is approved, the approval is for a time-limited
period of participation as specified in the provider agreement or notification of the enrollment
decision. The prospective provider must complete and submit the provider agreement before
enrollment is granted.
(2) Conditional approval. An enrollment application may be approved with conditions as
specified in the notification of the enrollment decision. The conditions may consist of the
imposition of any one or more administrative actions or sanctions as specified in Subchapter G
of this chapter (relating to Administrative Actions and Sanctions) or in other Medicaid or other
health and human services program policy or rule.
(3) Abatement. An enrollment application may be abated and the decision delayed for up
to six months from the date of submission of the completed enrollment application. A health and
human service program, in its discretion, may renew the abatement decision in additional sixmonth increments until any pending investigations, charges, or other legal proceedings are
finally resolved. If the decision in response to an enrollment application is abatement, the health
and human service program will send a written notice of the decision to the address of record on
the enrollment application.
(4) Denial. If an enrollment application is denied, HHSC or other human service program
will send a written notice of the decision by certified mail to the address of record on the
enrollment application. The reason or reasons for denial are as specified in the written notice. If
Provider Screening and Disclosure - 25
the denial is based upon a pending investigation, charge, or other legal proceeding, the applicant
or provider will be ineligible to reapply until such investigation or proceeding is finally resolved.
(c) If an enrollment application is abated or denied based upon HHSC Office of Inspector
General's recommendation, an applicant may request an informal desk review within 20 calendar
days from the date of the notice as follows.
(1) The request for an informal desk review must be made in writing and must be
submitted in accordance with the instructions in the notice.
(2) The request should state the basis for disagreement with the enrollment
recommendation, include any documentary evidence, and describe any mitigating circumstances
that would support a reconsideration of the initial enrollment recommendation.
(3) Upon conclusion of the resulting informal desk review, HHSC Office of Inspector
General will notify HHSC or the health and human service program of its final recommendation.
HHSC or the health and human service program will send a written notice of the final enrollment
decision to the address of record on the enrollment application.
(4) The final enrollment recommendation and decision are not subject to administrative
review or reconsideration.
§371.1017. Provider Re-enrollment for Other Health and Human Services Programs.
(a) A health and human services program provider must apply for re-enrollment at least every
five years. At the discretion of HHSC or other health and human service program, any provider
type may be required to reapply for reenrollment more frequently.
(b) A health and human services program provider whose provider number or contract has
been terminated, terminated for cause, or otherwise prohibited from participation in a health and
human service program may be required to re-enroll before HHSC will reactivate the provider's
enrollment number or contract. [end addition]
[begin addition] Rules to be repealed [end addition]
TITLE 1
PART 15
CHAPTER 371
SUBCHAPTER E
RULES
ADMINISTRATION
TEXAS HEALTH AND HUMAN SERVICESCOMMISSION
MEDICAID AND OTHER HEALTH AND HUMAN SERVICES
PROGRAM FRAUD AND ABUSE PROGRAM INTEGRITY
OPERATING AGENCY RESPONSIBILITIES RULE
§371.1000. Applicability
§371.1000. Provider Re-enrollment or Provider Contract Modification.
Provider Screening and Disclosure - 26
[begin deletion] By December 31, 2000, each agency operating part of the Medicaid program
must, at the agency's discretion, either re-enroll each provider in the Medicaid program under a
new contract approved by the Health and Human Services Commission or modify each existing
provider contract using language approved by the Health and Human Services Commission. [end
deletion]
TITLE 1
PART 15
CHAPTER 371
SUBCHAPTER G
DIVISION 1
RULES
ADMINISTRATION
TEXAS HEALTH AND HUMAN SERVICESCOMMISSION
MEDICAID AND OTHER HEALTH AND HUMAN SERVICES
PROGRAM FRAUD AND ABUSE PROGRAM INTEGRITY
ADMINISTRATIVE ACTIONS AND SANCTIONS
General Provisions
§§371.1621,371.1623, 371.1625, 371.1627
§371.1621. Provider Enrollment.
[begin deletion]
numbers.
(a) Basis for initial provider enrollment or request for additional provider
(1) The Commission, HHS agencies, and their contractors determine the need for and
approve individual provider participation through initial provider enrollment and enrollment for
additional provider number(s), including MCOs and their subcontractors
(2) The Commission (through OIG) as specified in this subchapter, HHS agencies, or
their contractors may abate, deny, or postpone a provider’s request for initial provider enrollment
and enrollment for additional provider numbers. In making the enrollment determination, the
following will be considered:
(A) accessibility of other health care to the recipient population;
(B) the provider's current or previous conduct, including conduct during participation
in the Titles XVIII, XIX, XX, and V, CHIP, and any HHS programs in any state, or any conduct
or action for which a sanction could have been taken, as described in this subchapter;
(C) the investigative findings in any current or previous investigation of the provider
or person or their affiliates;
(D) licensure or certification actions against the provider or person or any provider or
person with which they are affiliated, as described in this subchapter;
(E) criminal history background check; and
(F) consideration of subparagraphs (A) - (E) of this paragraph, in relation to the
provider's or person's family member and member of household, as specified in this subchapter.
Provider Screening and Disclosure - 27
(b) Providers, persons, principals, or affiliates of providers or persons under investigation,
who have sanctions pending, or have been sanctioned previously, by OIG or any HHS program,
may have any application for enrollment or new provider number decisions abated until all
investigations, sanctions, and legal proceedings are finally resolved, as specified in this
subchapter.]
§371.1623. Criminal History Checks.
[ (a) The Commission and OIG may conduct a criminal history check on any Medicaid
program provider or on any person or business entity who meets the definition of "indirect
ownership interest" as defined in §371.1607 of this division (relating to Definitions) and:
(1) that are applying to become a Medicaid provider; or
(2) that are applying to obtain a new provider number or performing provider number.
(b) The Commission and OIG may require the provider or applicant to provide a report from
the Texas Department of Public Safety or other appropriate law enforcement agency of the
criminal history of the provider or applicant in such form as the Commission or OIG may
require.
(1) If the Medicaid program provider or applicant is a corporation, this requirement may
be extended to officers and directors of the corporation, or to shareholders of 5% or more of the
outstanding shares of such corporation, or who are required to disclose their ownership interest
pursuant to federal law or regulation.
(2) If the Medicaid program provider or applicant is a partnership, whether general or
limited, this requirement extends to all persons or corporations owning a beneficial interest in the
partnership.
(3) If the Medicaid program provider or applicant is an individual or an unincorporated
association of individuals the requirement extends to all persons and members of the association
or who are applicants or providers.
(4) Medicaid program providers and applicants must disclose and provide complete
information regarding all misdemeanor and felony convictions of offenses on the Medicaid
program provider application form. Failure to make full and accurate disclosure will be grounds
for immediate denial of an application or termination of a contract with a provider in the
Medicaid program.
(5) The Commission and OIG may exempt from this requirement any person or entity
that is licensed under the laws of Texas and whose licensure requires a criminal history check.
[end deletion]
§371.1625. Use of Criminal History Record Information.
Provider Screening and Disclosure - 28
[begin deletion] (a) If the Commission or Inspector General determines, based on a criminal
history check taken from the application for provider or performing provider status, that the
provider or applicant has been convicted of one of the following crimes, the provider or applicant
will not be eligible to participate in the Medicaid program, and, if enrolled, the Commission or
Inspector General will terminate the provider's contract, or deny the application.
(1) An offense under chapter 19, Texas Penal Code (criminal homicide);
(2) An offense under chapter 20, Texas Penal Code (kidnapping and false imprisonment);
(3) An offense under section 21.11, Texas Penal Code (indecency with a child);
(4) An offense under section 22.011, Texas Penal Code (sexual assault);
(5) An offense under section 22.021, Texas Penal Code (aggravated sexual assault);
(6) An offense under section 22.02, Texas Penal Code (aggravated assault);
(7) An offense under section 22.04, Texas Penal Code (injury to a child, elderly
individual, or disabled individual);
(8) An offense under section 22.041, Texas Penal Code (abandoning or endangering a
child);
(9) An offense under section 22.08, Texas Penal Code (aiding suicide);
(10) An offense under section 25.031, Texas Penal Code (agreement to abduct from
custody);
(11) An offense under section 25.08, Texas Penal Code (sale or purchase of a child);
(12) An offense under section 28.02, Texas Penal Code (arson);
(13) An offense under section 29.02, Texas Penal Code (robbery);
(14) An offense under section 29.03, Texas Penal Code (aggravated robbery);
(15) An offense under chapter 31, Texas Penal Code (theft);
(16) An offense under chapter 32, Texas Penal Code (fraud);
(17) An offense under chapter 34, Texas Penal Code (money laundering);
(18) An offense under chapter 35, Texas Penal Code (insurance fraud);
(19) An offense under chapter 36, Texas Penal Code (bribery and corrupt influence);
Provider Screening and Disclosure - 29
(20) An offense under chapter 37, Texas Penal Code (perjury and other falsifications);
(21) An offense under chapter 71.02, Texas Penal Code (engaging in organized criminal
activity); or
(22) A federal offense under the Racketeer Influenced and Corrupt Organizations Act,
mail fraud, wire fraud, insurance fraud, Medicare Fraud, Medicaid Fraud, tampering with a
government document, and/or violation of Federal False Claims Act.
(b) The prohibition also includes:
(1) convictions for aiding and abetting any of the offenses listed in subsection (a) of this
section;
(2) convictions for conspiracies to commit any of the offenses listed in subsection (a) of
this section; and
(3) any conviction under the laws of another state that prohibit the conduct described in
the offenses listed in subsection (a) of this section.
(c) An agency operating part of the Medicaid program under Chapter 32, Human Resources
Code, is entitled to obtain from the Commission or Inspector General the criminal history record
information maintained by the Commission or Inspector General that relates to a provider under
the Medicaid program or a person applying to enroll as a provider under the Medicaid program.
(d) Criminal history record information obtained by the Commission or Inspector General
under §371.1623 of this division (relating to Criminal History Checks), or obtained by an agency
under subsection (c) of this subsection, may not be released or disclosed to any person except in
a criminal proceeding, in an administrative proceeding, on court order, or with the consent of the
provider or applicant. [end deletion]
§371.1627. Administrative Review of Rejection of Provider Enrollment by Reason of
Criminal History.
[begin deletion] (a) If the Commission or OIG determines from information furnished by the
applicant or Medicaid program provider, or from an independent criminal history check, that the
Medicaid program provider or applicant has been convicted of an offense described in this
division, the Commission or OIG will send a notice of denial of the application or cancellation of
the Medicaid program provider enrollment to the Medicaid program provider or applicant. The
notice states the action taken and the basis for the action, including the conviction, the
jurisdiction reporting the conviction, and the source of the information.
(b) The applicant or Medicaid program provider, upon receipt of the notice of denial or
cancellation, may determine that the action is based on a mistake in identity. If so, the applicant
or Medicaid program provider has 30 calendar days from the date of receipt of the notice to
Provider Screening and Disclosure - 30
provide the Commission or OIG with documentation from the reporting agency correcting the
mistake in identification.
(c) If the applicant or Medicaid program provider, upon receipt of the notice of denial or
cancellation, determines that, although the information is correct, there exist factors, that should
be considered in mitigation of the prohibition, the applicant or Medicaid program provider may
request an informal desk review within 20 calendar days from the receipt of the notice. The
request for an informal desk review should be made in writing and addressed as directed to the
OIG and should set out the reasons, which the applicant or Medicaid provider believes are
relevant to the issue of mitigation.
(d) The following factors may be considered in the informal desk review:
(1) the nature and seriousness of the crime;
(2) the relationship of the crime to the purposes of providing medical services, supplies,
or equipment;
(3) the extent to which approving an application or retaining a provider in the Medicaid
program would offer the applicant or provider the opportunity to engage in further criminal
activity;
(4) the relationship of the crime to the ability, capacity, or fitness required of the provider
or provider applicant to perform the duties and discharge the responsibilities of a provider in the
Medicaid program;
(5) the age of the provider or applicant at the time each crime was committed;
(6) the conduct and work history of the applicant or provider before and after the criminal
conviction(s);
(7) evidence of the applicant's or provider's rehabilitation efforts and outcome;
(8) the number and nature of the criminal conviction(s);
(9) the length of time since the end of the sentence imposed for the conviction; and
(10) other evidence of fitness that may be relevant. [end deletion]
Provider Screening and Disclosure - 31