[Code of Federal Regulations]
[Title 5, Volume 2]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR890.1064]

[Page 502-503]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
          CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (CONTINUED)
 
PART 890_FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM--Table of Contents
 
Subpart J_Administrative Sanctions Imposed Against Health Care Providers
 
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

[[Page 503]]

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.