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1. Purpose and Scope. This Chapter establishes the procedures to be followed for debarment of medical care providers under section 7 of the Act, and 20 C.F.R. sections 702.431 to .436. These procedures also apply, where specified, to the debarment of claims representatives under section 31 of the Act, and 20 C.F.R. section 702.131.
The debarment process consists of three distinct steps: (a) investigation and collection of evidence, 20 C.F.R. section 702.414; (b) a notice of initiation of debarment proceedings, 20 C.F.R. section 702.432(b); and (c) a notice of intent to debar, 20 C.F.R. section 702.432(e).
2. Policy.
a. Physicians or Health Care Providers. According to section 7(c) of the Act, the Secretary shall annually publish a list of physicians and health care providers not authorized to render medical care or provide medical services under the Act. Such physicians or health care providers shall be debarred if it is found, after appropriate investigation and a formal hearing (if requested), that such physician or health care provider has:
(1) knowingly and willfully made, or caused to be made, any false statement or misrepresentation of a material fact for use in a claim for compensation or claim for reimbursement of medical expenses under the Act;
(2) knowingly and willfully submitted, or caused to be submitted, a bill or request for payment under the Act containing a charge which the Director, OWCP finds to be substantially in excess of the charge for the service, appliance, or supply prevailing within the community or in excess of the provider's customary charges, unless the Director, OWCP finds there is good cause for the bill or request containing the charge;
(3) knowingly and willfully furnished a service, appliance, or supply which is determined by the Director, OWCP to be substantially in excess of the need of the recipient thereof or to be of a quality which substantially fails to meet professionally recognized standards; or
(4) been convicted under any criminal statute, without regard to any pending appeal thereof, for fraudulent activities in connection with federal or state programs for which payments are made to physicians or providers of similar services, appliances, or suppliers; or has otherwise been excluded from participation in such programs.
b. Claims Representatives. The Secretary will also annually publish a list of individuals who are disqualified from representing claimants under the Act. Individuals on this list are not authorized to represent claimants under the Act subject to the provisions of section 31(b)(2)(C), and they shall not have their representation fee approved as provided in section 28(e). Individuals shall be included on the list if the Secretary determines, after proceedings under 20 C.F.R. section 702.432(b) to .434, that such individual:
(1) has been convicted (without regard to any pending appeal) of any crime in connection with the representation of a claimant under the Act or any workers' compensation statute;
(2) has engaged in fraud in connection with the presentation of a claim under this or any workers' compensation statute, including but not limited to knowingly making false representations, concealing or attempting to conceal material facts with respect to a claim, or soliciting or otherwise procuring false testimony;
(3) has been prohibited from representing claimants before any other workers' compensation agency for reasons of professional misconduct which are similar in nature to those which would be grounds for disqualification under this Act; or
(4) has accepted fees for representing claimants under the Act which were not approved, or which were in excess of the amount approved pursuant to section 28 of the Act.
3. Receipt of Complaint or Other Information. When information concerning any activity or action described in subparagraphs 2a and 2b is received it is to be recorded by the DD. This information may be in the form of a written complaint, a memorandum from a CE or may originate from a review of the case file by the DD. The information is to be recorded in a chronological log which is to be permanently maintained. The log is to include the following items: the name and address of the health care provider or claims representative; the source of the information; and a description of the complaint or information. A separate folder is to be maintained for each health care provider or claims representative, separate from the administrative files.
4. Investigation and Collection of Evidence. All complaints must contain sufficient documentation. Please refer to PM 5-500.4a for a discussion of the burden of proof. The DD will evaluate the complaint and the supporting evidence to determine whether further proceedings will be undertaken.
a. Guidance. In evaluating information throughout the debarment process the DD should consult with the OWCP District Medical Advisor and the Regional Solicitor's Office.
b. Insufficient Evidence. If the DD determines that the evidence submitted is insufficient or that the complaint is not an appropriate basis for debarment, the complainant is to be so advised by a letter over the signature of the DD. The letter should indicate: (1) that, for future reference, a file has been created concerning the complaint; (2) that the evidence submitted is not sufficient to initiate debarment proceedings; and (3) that additional evidence may be submitted.
c. Sufficient Evidence. If the DD determines that the documented complaint is sufficient, or that the additional evidence submitted is adequate, to show a violation prima facie, a copy of the complaint, together with the supporting evidence, is sent to the respondent (the health care provider or claims representative) for comment. When a reply is received from the respondent, the DD reevaluates the complaint and makes a determination on whether or not to proceed further.
(1) Meeting. The DD may provide for a meeting with the complainant and the respondent if, in the opinion of the DD, such a meeting might resolve the issue.
(2) No Further Proceedings. If the DD determines that further proceedings are not indicated, the complainant is to be advised by letter over the signature of the DD with a copy sent to the respondent. This letter should include a copy of the reply from the respondent. The decision of the DD, that debarment proceedings will not be initiated, is final and not subject to appeal or formal hearing.
(3) Further Proceedings. If the DD determines that further proceedings are indicated, the Regional Solicitor's Office should be consulted for an analysis of the merits of the case and advice on what additional evidence may be necessary. The DD is to send a notice of initiation of debarment proceedings to the respondent.
5. Notice of Initiation of Debarment Proceedings. This notice is to include the following items (see Draft Notice to Initiate Proceedings, Exhibit 10, PM 10-300):
a. A concise statement of the grounds upon which debarment may be based;
b. A summary of the information upon which the DD has relied in reaching an initial decision that debarment proceedings should be initiated;
c. An invitation to the physician, health care provider, or claims representative to:
(1) resign voluntarily from participating in the program without admitting or denying the allegations presented in the written notice; or
(2) request a decision on debarment to be based upon the existing agency record and any other information the physician, health care provider, or claims representative may wish to provide;
d. A notice of the physician's, health care provider's, or claims representative's right, in the event of an adverse ruling by the DD, to request a formal hearing before an administrative law judge;
e. A notice that, should the physician, health care provider, or claims representative fail to provide written answer to the written notice of initiation of debarment proceedings within thirty days of receipt, the DD will deem the allegations to be true and will order exclusion of the physician, health care provider, or claims representative without conducting further proceedings; and
f. The name and address of the DD who shall be responsible for receiving the answer from the physician, health care provider, or claims representative.
Among other things, this notice provides for the submission of additional information which should allow the respondent an opportunity to present his or her position fully. The DD is to evaluate the evidence already collected together with any additional information submitted by the respondent. The DD should then make written findings of fact and a decision on whether or not to proceed with the debarment.
If the respondent does not make a reply to the Notice of Initiation of Debarment Proceedings, the DD may use the information described in subparagraph 5b as the findings of fact. The fact that a physician, health care provider, or claims representative has been convicted of a crime described in subparagraphs 2a and 2b above, or excluded or suspended or has resigned in lieu of exclusion or suspension, from participating in any workers' compensation program, shall be a prima facie basis for a finding of fact.
6. No Debarment. If the DD determines that debarment is not warranted, a letter is sent to the respondent and the complainant. A copy of the findings of fact is to be attached. The decision of the DD not to debar a health care provider or claims representative is not subject to appeal or formal hearing.
7. Debarment. If the DD determines that debarment is indicated, a written decision is issued which incorporates the findings of fact (see 20 C.F.R. section 702.432(e) and Exhibit 11, PM 10-300, Draft Decision To Debar). Such decisions should be served by certified mail return receipt requested, in order to document the date of receipt (critical with these decisions only). If the respondent does not file a request for a formal hearing within thirty days after receipt, the respondent is entered on the Secretary's list of those not authorized to provide medical care or services or to represent claimants. Debarment will not occur until the health care provider or claims representative is placed on the Secretary's list. The district office should notify the NO when an individual or supplier is ready to be placed on the Secretary's list. Individuals or suppliers will not be placed on this list until after a formal hearing, if requested, 20 C.F.R. section 702.432(e).
8. Formal Hearings. 20 C.F.R. Section 702.433.
a. A request for hearing is sent to the DD who issued the decision. The request may be on Form LS-18, Pre-Hearing Statement (Exhibit 5, PM 10-200) or may be in letter form but it should contain a notice of the issues on which the physician, health care provider, or claims representative desires to give evidence at the hearing with identification of witnesses and documents to be submitted at the hearing.
b. A request for hearing must be received within thirty days after the Decision to Debar is received by the health care provider or claims representative (see section 7(j)(2) of the Act). If a request for hearing is received by the DD within that time, the matter shall be referred to the Chief Administrative Law Judge.
c. A formal hearing will be held, and at the conclusion of the hearing, the administrative law judge will issue a recommended decision. This decision will contain appropriate findings, conclusions and a recommended order. The administrative law judge should forward the recommended decision and order, together with the record of the hearing, to the Department of Labor’s Administrative Review Board for a final decisions. The recommended decision and order shall be served on all parties to the proceeding (see 20 C.F.R. section 702.433(e)).
d. Based upon a review of the record and the recommended decision and order, the Administrative Review Board will issue a final decision. This decision will be mailed to all parties to the proceeding.
9. Appeal. 20 C.F.R. Section 702.434.
a. Any physician, health care provider, or claims representative may obtain review of the Assistant Secretary's decision by a civil action commenced within sixty days after the mailing of the decision. However, this civil action will not act as a stay of the effect of the Assistant Secretary's decision to debar the physician, health care provider, or claims representative.
b. The civil action shall be brought in the Court of Appeals of the United States for the judicial circuit in which the plaintiff resides or has his or her principal place of business.
10. Effects of Debarment.
a. Physicians and health care providers included on the Secretary's list are not authorized to render medical care or provide medical services under the Act. However, a claimant may be reimbursed for any otherwise reimbursable medical treatment, service, or supply received from a debarred provider in an emergency situation. In such a situation, the DD should advise the claimant to select a duly qualified health care provider at the earliest medically appropriate opportunity.
b. Claims representatives included on the Secretary's list may not have their fee approved pursuant to section 28 of the Act and an employer is not liable to pay a representation fee to such individual. However, the fact that a claims representative is included on the Secretary's list will not prevent that individual from presenting his/her own claim or from representing, without a fee, a claimant who is his/her spouse, mother, father, sister, brother, or child.
c. Debarment shall be for a period of not less than three years and until the DD finds and gives notice to the public that there is reasonable assurance that the basis for the debarment will not reoccur.
11. The List.
a. The Secretary's list of physicians and health care providers not authorized to render medical care or provide medical services under the Act shall be sent to:
(1) All Longshore DO's;
(2) The Health Care Financing Administration;
(3) The State or Local authority responsible for licensing or certifying the debarred party;
(4) All ECs and other interested parties; and
(5) The general public by posting in the DO in the jurisdiction where the debarred party maintains a place of business.
b. If a claims representative is placed on the Secretary's list of individuals not authorized to represent claimants under the Act notice shall be sent to those groups listed in subparagraph a, numbers 1, 3, 4 and 5 above.
12. Reinstatement.
a. If a physician or health care provider has been debarred for the reason set forth in subparagraph 2a(4) above or if a claims representative has been debarred for the reasons set forth in subparagraphs 2b(1) and (3) above, the individual debarred will be reinstated upon notice to the DD that the conviction or exclusion has been reversed or withdrawn. When such a notice is received by the DD it should be sent to the NO by separate memorandum. The NO may also determine that debarment proceedings should be reinstituted based upon the subject matter involved.
b. A debarred individual may apply for reinstatement to practice under the Act after three years from the date of entry of the order of debarment. Such application should be addressed to the Director, DLHWC and should be submitted through the DD. The application must contain a statement of the basis for reinstatement along with any supporting documentation. The applicant should also promise that the basis for the debarment will not be repeated. The DD should review this application and submit it to the NO together with a recommendation either for or against the reinstatement.
c. As part of the reinstatement process, the Director, DLHWC may require special reporting procedures for the applicant for a probationary period not to exceed six months. During this period, the DD shall monitor the activities of the applicant in connection with providing any service under the Act.
d. At the conclusion of the six-month probationary period the DD shall prepare a memorandum covering the activities of the previously debarred individual during that period and make a recommendation either for or against reinstatement. If the DD determines that continued debarment is indicated the DD shall issue a written decision which incorporates his/her findings of fact concerning the investigation of the merits of the reinstatement application and results of the probationary period, and repeat the procedures as provided in paragraph 5-600.7, above
e. The physician, health care provider, or claims representative will be reinstated if it is determined that such reinstatement is consistent with the goal of preventing further fraud and abuse.
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