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    Maryland Register
    Issue Date:  April 28, 2017
    Volume 44 • Issue 9 • Pages 441—442
    Title 10
    10.66.01 Civil Money Remedy
    Authority: Health-General Article, §2-504.1, Annotated Code of Maryland
    Notice of Proposed Action
    The Secretary of Health and Mental Hygiene proposes to adopt new Regulations .01.04 under a new chapter, COMAR 10.66.01 Civil Money Remedy, under a new subtitle, Subtitle 66 Office of the Inspector General.
    Statement of Purpose
    The purpose of this action is to create the procedure for implementing a civil money remedy as required by Health General Article, §2-504.1, Annotated Code of Maryland (Ch. 136, Acts of 2016). The remedy permits the State to recoup an amount which is less than the full amount of an improper claim payment in certain instances.
    Comparison to Federal Standards
    There is no corresponding federal standard to this proposed action.
    Estimate of Economic Impact
    I. Summary of Economic Impact. This proposal will have a minimal fiscal impact on the Medicaid Program and Healthcare providers. Currently, if a healthcare provider provides a Medicaid reimbursed service, but bills incorrectly or incorrectly documents the service, the State is required to seek full reimbursement of the claim. This regulation, based upon a recently enacted statute, permits the Department to recover less than the full amount of the claim paid. The State is required to reimburse the federal government for its federal financial participation (FFP) of the improper claim. FFP is usually 50 percent of the claim.
    Revenue (R+/R-)
    II. Types of Economic Impact.

    A. On issuing agency:
    B. On other State agencies:
    C. On local governments:
    Benefit (+)
    Cost (-)

    D. On regulated industries or trade groups:
    E. On other industries or trade groups:
    F. Direct and indirect effects on public:
    III. Assumptions. (Identified by Impact Letter and Number from Section II.)
    A. and D. The Medicaid program has a budget of approximately of $8 billion. The recoveries that would be applicable under this proposal is very small. The OIG estimates an average annual recovery of $100,000 or less. Therefore, the effect on the healthcare provider community will minimal.
    C. Local government would only be affected if the local health department was a Medicaid provider and repayment of reimbursement was required.
    Economic Impact on Small Businesses
    The proposed action has minimal or no economic impact on small businesses.
    Impact on Individuals with Disabilities
    The proposed action has no impact on individuals with disabilities.
    Opportunity for Public Comment
    Comments may be sent to Michele Phinney, Director, Office of Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to dhmh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through May 30, 2017. A public hearing has not been scheduled.
    .01 Scope.
    This chapter establishes standards for civil money remedies against any provider of health care services or health care supplies or equipment if the Office of the Inspector General finds there are grounds under Health General Article, §2-504.1, Annotated Code of Maryland, to impose a civil money remedy.
    .02 Definitions.
    A. The following terms have the meaning indicated.
    B. Terms Defined.
    (1) “Civil money remedy” means a monetary remedy authorized by Health-General Article, §2-504.1, Annotated Code of Maryland, and imposed for a violation of statute or regulation governing the conditions of payment for any service or item for which the provider submitted a claim for payment and received payment.
    (2) “Department” means the Department of Health and Mental Hygiene.
    (3) “Hearing” means a contested case hearing as defined by the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
    (4) “Identified recovery” means the total dollar amount of claims identified by the OIG as paid to the provider for a service or item not provided in accordance with applicable statute and regulations.
    (5) 'Inspector General” means the Inspector General, or the designated Assistant Inspector General, within the Department of Health and Mental Hygiene.
    (6) “Office of Administrative Hearings (OAH)” means the independent unit in the Executive Branch of State government authorized to conduct hearings in contested cases, pursuant to the Administrative Procedure Act and this chapter.
    (7) “OIG” means the Office of the Inspector General within the Department of Health and Mental Hygiene.
    (8) “Violation” means the provision of a service that does not comply with applicable statutes or regulations or both.
    .03 Civil Money Remedy — Imposition.
    A. A civil money remedy may be imposed against a provider for violation of a State or federal law governing the conditions of payment for any service or item for which the provider submitted a claim for payment and received payment.
    B. It is within the sole discretion of the Inspector General as to whether a civil money remedy is imposed.
    C. A civil money remedy may not be imposed if otherwise prohibited by State or federal law.
    D. A civil money remedy imposed under this chapter:
    (1) Is in lieu of full payment or full adjustment of the paid claim and not in addition to repayment of the claim;
    (2) May not be less than the federal financial participation share of the identified improper claim amount;
    (3) May not exceed the amount of reimbursement that the provider received for the paid claim;
    (4) Is only available if the provider has not been subjected to a:
    (a) Repayment penalty or fine;
    (b) Criminal action; or
    (c) Civil false claims action under either federal or State law for the same claim; and
    (5) May not be imposed if the claim was included in the universe of claims under an extrapolation calculation.
    E. A claim may be made on the basis of more than one violation, but there shall be only one civil money remedy per claim, regardless of the number of violations on which the claim is based.
    F. In determining whether a civil money remedy is to be imposed and in setting the amount of the civil money remedy, the Inspector General shall consider:
    (1) The number, nature, and seriousness of the violation or violations;
    (2) The provider’s history of compliance;
    (3) The efforts made by the provider to correct the violations and any continuation of conduct after notification of possible violations;
    (4) The provider’s level of cooperation with the Department or Inspector General as it relates to the review of the claim;
    (5) The degree of risk to the health, life, or safety of consumers as a result of the violations; and
    (6) Any other reasonable factors as fairness may require.
    G. The Inspector General shall give special consideration to the extent to which the provider’s size, operations, or financial condition:
    (1) May have contributed to the violations; and
    (2) May affect the provider’s ability to provide care and continue operations after payment of a civil money remedy.
    H. If the civil money remedy is imposed under this chapter, the Inspector General shall issue a written notice and order to the provider that:
    (1) States the total amount of the civil money remedies being imposed; and
    (2) Includes the following information:
    (a) The basis on which the order is made;
    (b) Each regulation or statute violated;
    (c) The amount of each civil money remedy imposed for each claim;
    (d) The number of claims and total value of the claims identified with errors;
    (e) The manner in which the amount of the civil money remedy was calculated; and
    (f) The provider’s appeal rights.
    I. The notice and order shall be sent to the provider by certified mail.
    .04 Civil Money Remedy — Appeal.
    A. A provider aggrieved by the imposition of a civil money remedy may appeal the action by filing a request for a hearing in accordance with State Government Article, Title 10, Subtitle2, Annotated Code of Maryland.
    B. The Inspector General has the burden of proof with respect to the basis for the imposition of the civil money remedy.
    C. The Office of Administrative Hearings shall render a final decision within 30 days of the hearing.
    D. An order that imposes a civil money remedy is final when the provider has exhausted all opportunities to contest the civil money remedy in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
    E. After exhaustion of all appeals, a provider shall pay a civil money remedy to the Department within 10 days after the provider receives a final order that affirms the imposition of the civil money remedy unless the Inspector General negotiates and approves a repayment schedule.
    F. If a provider does not pay the civil money remedy to the Department after receiving the final order or according to a negotiated repayment schedule, the State may deduct the amount of the civil money remedy from any sum that is then or later owed by the State to the provider, pursuant to State Finance and Procurement Article, §7-222, Annotated Code of Maryland.
    Secretary of Health and Mental Hygiene