[Federal Register: March 3, 2004 (Volume 69, Number 42)]
[Rules and Regulations]
[Page 9919-9924]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr04-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
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to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
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[[Page 9919]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 890
RIN 3206-AJ42
Eligibility of Suspended Health Care Providers To Receive Payment
of Federal Employees Health Benefits Program Funds; Financial Sanctions
of Health Care Providers Participating in the Federal Employees Health
Benefits Program
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is amending its
regulations regarding administrative sanctions of health care providers
participating in the Federal Employees Health Benefits Program (FEHBP).
This rule clarifies the circumstances under which payments may be made
from FEHBP funds to suspended providers and implements the financial
sanctions provisions of section 2 of the Federal Employees Health Care
Protection Act of 1998 (Pub. L. 105-266), 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 final regulations on debarment and suspension that
were issued on February 3, 2003 (68 FR 5470), the financial sanctions
provisions afford OPM a full range of administrative remedies to deter
and rectify provider misconduct within FEHBP. The regulatory framework
established by this issuance contains appropriate procedural safeguards
to assure that the amounts of financial sanctions are determined
through a consistent and equitable process, that the Government's
financial interests are fully protected, and that financial sanctions
are imposed only after an opportunity for an administrative hearing on
all facts material to the basis for the sanctions.
EFFECTIVE DATE: March 3, 2004.
FOR FURTHER INFORMATION CONTACT: David Cope, Debarring Official, Office
of the Inspector General, Office of Personnel Management, by telephone
at 202-606-2851, by fax at 202-606-2153, or by e-mail at debar@opm.gov.
SUPPLEMENTARY INFORMATION:
Background
OPM's final regulations on debarment and suspension of health care
providers were published in the Federal Register on February 3, 2003
(68 FR 5470). Subsequently, during the public comment period for OPM's
proposed regulations on financial sanctions of health care providers
(see the following section of this preamble titled ``Financial
Sanctions''), an FEHBP carrier commented to our office that the wording
of several sections of the debarment and suspension regulations was
ambiguous and potentially subject to misinterpretation in regard to the
circumstances under which payments could be made to suspended
providers.
The carrier's comments focused on Sec. Sec. 890.1046 through
890.1050 of the regulations, which speak to certain special situations
where payments to debarred providers may be permissible. Section
890.1048, regarding providers who are the sole source of health care
services in their communities and section 890.1050, authorizing special
exceptions to debarments for individual FEHBP enrollees, both contain
specific language prohibiting payments to suspended providers in these
circumstances. Sections 890.1046, 890.1047, and 890.1049, addressing
services provided in emergency situations, institutional health care
providers, and claims filed by enrollees who are unaware that their
provider has been sanctioned, respectively, are silent regarding the
permissibility of payments to suspended providers in those situations.
By not specifically identifying the treatment of suspended providers in
these three sections, we intended that they be governed by the overall
policy stated in Sec. 890.1030(c), that the effect of a suspension is
the same as the effect of a debarment. However, we agree with the
carrier's observation that the presence of language in Sec. Sec.
890.1048 and 890.1050 specifically excluding suspended providers from
payment under some ``special'' circumstances may have inadvertently
created confusion among both carriers and providers as to our actual
intent in situations where the regulatory wording did not specify the
rights of suspended providers. Therefore, to avoid possible
misinterpretations, we are revising Sec. Sec. 890.1046, 890.1047, and
890.1049 by adding appropriate language to indicate that suspended
providers are eligible to receive FEHBP payments in the special
situations addressed by those sections.
Financial Sanctions
The proposed financial sanctions regulations were issued in a
notice of proposed rulemaking in the February 10, 2003, Federal
Register (68 FR 6649). During the 60-day public comment period, OPM
received written comments from an industry association of health
insurance plans and oral comments from an FEHBP carrier and from
employees. This section of the regulatory preamble addresses all of the
comments and explains OPM's rationale for incorporating certain of them
in the final rule and declining to implement others.
Rewording of Redundant or Ambiguous Passages
Most commenters observed that some of the wording in the proposed
rule was ambiguous or redundant in addressing (1) the factors used to
determine the amounts of penalties and assessments and (2) the
procedures for contesting or settling proposed financial sanctions.
Upon review, we agree that several sections could be reworded to
clarify the intended meaning.
In particular, the proposed Sec. 890.1064(b) appeared to be
largely duplicated by Sec. 890.1064(c) and (d), and this redundancy
might have fostered some uncertainty as to the relationship between the
purposes of financial sanctions and the specific factors that may
determine the amount of a sanction against a given provider. In fact,
the purposes of financial sanctions are to (1) make OPM whole for any
monetary losses and damages associated with a provider's violations and
(2) deter future violations by the sanctioned provider and other
providers. The procedure for determining amounts in specific cases is
intended to effectuate those purposes. Therefore, we have consolidated
[[Page 9920]]
paragraphs (b), (c), and (d) of Sec. 890.1064 as they appeared in the
proposed rule into paragraph (b) as it appears in the final rule, thus
eliminating the redundancy and emphasizing the seamless connection
between overall regulatory purpose and the amounts of penalties in
individual cases. As the result of this consolidation, the proposed
paragraph (e) has been redesignated as Sec. 890.1064(c) in the final
rule.
Similarly, we have reworded the proposed Sec. 890.1067(c) to
clarify that (1) the debarring official may settle or compromise
proposed financial sanctions at any stage of the sanctions process
prior to issuance of a final decision and (2) such settlements or
compromises do not have to be predicated on a provider's filing a
contest of the proposed sanctions or making a formal settlement offer.
Several commenters noted that the phrase ``intention to contest''
in Sec. 890.1068(a) was ambiguous as to the nature of the contact from
a provider that would be sufficient to initiate OPM contest procedures.
We have rewritten this section in the final rule to make it clear that,
in filing a contest, the provider must adhere to the instructions given
by the notice of proposed sanctions issued by OPM. If a provider does
not file a contest within the timeframe stated in the notice, in a
manner that complies with the procedures specified by the notice, OPM
may implement the proposed sanctions immediately and without further
procedures. However, OPM does not intend to use this provision to deny
the opportunity to contest on the grounds of minor ``technical''
deviations from the instructions in the notice of proposed sanctions.
Providers will receive the benefit of any reasonable doubt regarding
their adherence to the requirements for filing a contest.
Some commenters also observed that the proposed Sec. Sec. 890.1070
and 890.1071 were partially redundant and unclear regarding OPM's
procedures for conducting and deciding contests. Upon review, we agree
that a revision of these sections is warranted. Accordingly, we have
consolidated the proposed Sec. Sec. 890.1070 and 890.1071 into a
single Sec. 890.1070 in the final rule. This section sets forth in
sequential order the process that the debarring official must apply to
deciding contests of proposed financial sanctions and identifies the
critical decision points at each stage of this process. To account for
the consolidation, we have renumbered proposed Sec. Sec. 890.1072 and
890.1073 as Sec. Sec. 890.1071 and 890.1072, respectively, in the
final rule.
Impact of Financial Sanctions on FEHBP Carriers
The association of insurance carriers suggested that the scope of
the proposed rule be expanded to provide a mechanism for crediting
collected amounts of financial sanctions, deposited in the Employees
Health Benefits Fund, to reimburse FEHBP plans for any losses and costs
they incur as a result of the provider misconduct on which the
financial sanctions are based. In support of this suggestion, the
association noted that FEHBP plans may expend substantial amounts when
investigating provider violations, and that there is no formula for
``compensating plans for [such] losses.'' However, FEHBP carriers are
reimbursed from the Employees Health Benefits Fund for allowable costs
incurred in administering their responsibilities under their FEHBP
contracts. The nature and extent of such reimbursement is addressed
within the regulatory framework of the Federal Employees Health
Benefits Acquisition Regulations, and is subject to annual negotiation
between OPM and the carrier. In contrast, the FEHBP sanctions statute
is designed solely as an enforcement measure aimed at untrustworthy
health care providers, and offers no basis or authority for regulating
costs and/or reimbursement policies. Therefore, we have not accepted
the carrier association's suggestions.
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.
Office of Personnel Management.
Kay Coles James,
Director.
0
Accordingly, OPM is amending part 890 of title 5, Code of Federal
Regulations as follows:
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
0
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.
0
2. In subpart J, Sec. 890.1046 is revised to read as follows:
Sec. 890.1046 Effect of debarment or suspension on payments for
services furnished in emergency situations.
A debarred or suspended health care provider may receive FEHBP
funds paid for items or services furnished on an emergency basis if the
FEHBP carrier serving the covered individual determines that:
(a) The provider's treatment was essential to the health and safety
of the covered individual; and
(b) No other source of equivalent treatment was reasonably
available.
0
3. In subpart J, Sec. 890.1047 is revised to read as follows:
Sec. 890.1047 Special rules for institutional providers.
(a) Covered individual admitted before debarment or suspension. If
a covered person is admitted as an inpatient before the effective date
of an institutional provider's debarment or suspension, that provider
may continue to receive payment of FEHBP funds for inpatient
institutional services until the covered person is released or
transferred, unless the debarring or suspending official terminates
payments under paragraph (b) of this section.
(b) Health and safety of covered individuals. If the debarring or
suspending official determines that the health and safety of covered
persons would be at risk if they remain in a debarred or suspended
institution, OPM may terminate FEHBP payments at any time.
(c) Notice of payment limitations. If OPM limits any payment under
paragraph (b) of this section, it must immediately send written notice
of its action to the institutional provider.
(d) Finality of debarring or suspending official's decision. The
debarring or suspending official's decision to limit or deny payments
under paragraph (b) of this section is not subject to administrative
review or reconsideration.
0
4. In subpart J, Sec. 890.1049 is revised to read as follows:
[[Page 9921]]
Sec. 890.1049 Claims for non-emergency items or services furnished by
a debarred or suspended provider.
(a) Covered individual unaware of debarment or suspension. FEHBP
funds may be paid for items or services furnished by a debarred or
suspended provider if, at the time the items or services were
furnished, the covered individual did not know, and could not
reasonably be expected to have known, that the provider was debarred or
suspended. This provision is intended solely to protect the interests
of FEHBP-covered persons who obtain services from a debarred or
suspended provider in good faith and without knowledge that the
provider has been sanctioned. It does not authorize debarred or
suspended providers to submit claims for payment to FEHBP carriers.
(b) Notice sent by carrier. When paying a claim under the authority
of paragraph (a) of this section, an FEHBP carrier must send a written
notice to the covered individual, stating:
(1) That the provider is debarred or suspended and is prohibited
from receiving payment of FEHBP funds for items or services furnished
after the effective date of the debarment or suspension;
(2) That claims may not be paid for items or services furnished by
the debarred or suspended provider after the covered individual is
informed of the debarment or suspension;
(3) That the current claim is being paid as a legally-authorized
exception to the effect of the debarment or suspension in order to
protect covered individuals who obtain items or services without
knowledge of their provider's debarment or suspension;
(4) That FEHBP carriers are required to deny payment of any claim
for items or services rendered by a debarred or suspended provider 15
days or longer after the date of the notice described in paragraph (b)
of this section, unless the covered individual had no knowledge of the
provider's debarment or suspension when the items or services were
rendered;
(5) The minimum period remaining in the provider's debarment or
suspension; and
(6) That FEHBP funds cannot otherwise be paid to the provider until
OPM terminates the debarment or suspension.
0
5. In subpart J, Sec. Sec. 890.1060 through 890.1072 are added to read
as follows:
Subpart J--Administrative Sanctions Imposed Against Health Care
Providers Civil Monetary Penalties and Financial Assessments
Sec.
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 must consider in
deciding a provider's contest of proposed penalties and assessments.
890.1070 Deciding contests of proposed penalties and assessments.
890.1071 Further appeal rights after final decision to impose
penalties and assessments.
890.1072 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) Definitions. In Sec. Sec. 890.1060 through 890.1072:
Penalty means civil monetary penalty; and
Penalties and assessments may connote the singular or plural forms
of either of those terms, and may represent 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 the 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 must 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
theviolations;
(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) The monetary amount of any 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
provisions of
[[Page 9922]]
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 must 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 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) Factors considered in determining amounts of penalties and
assessments. In determining the amounts of penalties and assessments to
impose on a provider, the debarring official must consider:
(1) The Government's interests in being fully compensated for all
damages, losses, and costs associated with the provider's violations,
including:
(i) Amounts wrongfully paid from FEHBP funds as the result of the
provider's violations and interest on those amounts, at rates
determined by the Department of the Treasury;
(ii) All costs incurred by OPM in investigating a provider's
sanctionable misconduct; and
(iii) All costs incurred in OPM's administrative review of the
case, including every phase of the administrative sanctions processes
described by this subpart;
(2) The Government's interests in deterring future misconduct by
health care providers;
(3) The provider's personal financial situation, or, in the case of
an entity, the entity's financial situation;
(4) All of the factors set forth in Sec. 890.1062(b) and (c); and
(5) The presence of aggravating or less serious circumstances, as
described in paragraphs (c)(1) through (c)(7) of this section.
(c) 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 (c)(1) through (c)(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, must 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 must 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 must 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 must 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 must 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 must 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 must also provide the
elements of information required to appear in a notice of proposed
debarment under Sec. 890.1006(b).
[[Page 9923]]
(e) Procedures if the notice cannot be delivered. OPM must 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 must apply the
administrative procedures set forth in Sec. Sec. 890.1069 and 890.1070
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 requirements set forth in Sec. Sec. 890.1022 through
890.1024, as well as this section, apply.
(c) Settling or compromising proposed sanctions. The debarring
official may settle or compromise proposed sanctions at any time before
issuing a final decision under Sec. 890.1070.
Sec. 890.1068 Effect of not contesting proposed penalties and
assessments.
(a) Proposed sanctions may be implemented immediately. In the
absence of a timely response by a provider as required in the notice
described in Sec. 890.1066, the debarring official may issue a final
decision implementing the proposed financial sanctions immediately,
without further procedures.
(b) Debarring official sends notice after implementing sanctions.
Immediately upon issuing a final decision under paragraph (a), the
debarring official must 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 if a timely contest was not filed
in response to OPM's notice under Sec. 890.1066.
Sec. 890.1069 Information the debarring official must consider in
deciding a provider's contest of proposed penalties and assessments.
(a) Documentary material and written arguments. As part of a
provider's contest, the provider must 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 must 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 Deciding contests of proposed penalties and
assessments.
(a) Debarring official reviews entire administrative 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) Previously determined facts. Any facts relating to the basis
for the proposed penalties and assessments that were determined in
prior due process proceedings 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).
(c) Deciding the contest without further proceedings. To decide the
contest without further administrative proceedings, the debarring
official must determine that:
(1) The preponderance of the evidence in the administrative record
as a whole demonstrates that the provider committed a sanctionable
violation described in Sec. 890.1061; and
(2) The evidentiary record contains no bona fide dispute of any
fact material to the proposed financial sanction. A ``material fact''
is a fact essential to determining whether a provider committed a
sanctionable violation for which penalties and assessments may be
imposed.
(d) Final decision without further proceedings. If the debarring
official determines that paragraphs (c)(1) and (c)(2) of this section
both apply, a final decision may be issued, imposing financial
sanctions in amounts not exceeding those proposed in the notice to the
provider described in Sec. 890.1066.
(e) Insufficient evidence. If the debarring official determines
that a preponderance of the evidence does not demonstrate that the
provider committed a sanctionable violation described in Sec.
890.1061, the notice of proposed sanctions described in Sec. 890.1066
must be withdrawn.
(f) Disputed material facts. If the debarring official determines
that the administrative record contains a bona fide dispute about any
fact material to the proposed sanction, he must refer the case for a
fact-finding hearing to resolve the disputed fact or facts. The
provisions of Sec. 890.1027(b) and (c), 890.1028, and 890.1029(a) and
(b) will govern such a hearing.
(g) Final decision after fact-finding hearing. After receiving the
report of the fact-finding hearing, the debarring official must apply
the provisions of paragraphs (c), (d), and (e) of this section to reach
a final decision on the provider's contest.
Sec. 890.1071 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. 890.1072 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 must be afforded the opportunity to arrange an agreed-upon
payment schedule.
(b) No agreed-upon payment schedule. In the absence of an agreed-
upon payment schedule, OPM must 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
[[Page 9924]]
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 must deposit payments of penalties and
assessments into the Employees Health Benefits Fund.
[FR Doc. 04-4730 Filed 3-2-04; 8:45 am]
BILLING CODE 6325-52-P