1. a. When the department determines that a provider has been rendering care or services in a form or manner inconsistent with program requirements or rules, or has received payment for which the provider may not be properly entitled, the department shall notify the provider in writing of the discrepancy noted. The notice to the provider may set forth: (1) The nature of the discrepancy or inconsistency. (2) The dollar value, if any, of such discrepancy or inconsistency. (3) The method of computing such dollar values. (4) Further actions which the department may take. (5) Any action which may be required of the provider. b. When the department has notified the provider in writing of a discrepancy or inconsistency, it may withhold payments on pending and future claims awaiting a response from the provider.

2. If the department determines that a provider's claims were not submitted properly or that a provider has engaged in suspected fraud or abuse, the department may require the provider to participate in and complete an educational program. a. If the department decides that a provider should participate in an educational program, the department shall provide written notice to the provider, by certified mail, setting forth the following: (1) The reason the provider is being directed to attend the educational program; (2) The educational program determined by the department; and (3) That continued participation as a provider in Medicaid and children's health insurance program is contingent upon completion of the educational program identified by the department. b. An educational program may be presented by the department. The educational program may include: (1) Instruction on the correct submission of claims; (2) Instruction on the appropriate utilization of services; (3) Instruction on the correct use of provider manuals; (4) Instruction on the proper use of procedure codes; (5) Education on statutes, rules, and regulations governing the Medicaid and children's health insurance program; (6) Education on reimbursement rates and payment methodologies; (7) Instructions on billing or submitting claims; and (8) Other educational tools identified by the department.

3. If a provider who is required to participate in an educational program refuses to participate in that program, the department shall suspend the provider from participation in Medicaid and

children's health insurance program until the provider successfully completes the required program. The time frame to successfully complete the educational program may be extended upon provider request and with department approval.

4. If the department determines that a provider's claims were not submitted properly or that a provider has engaged in suspected fraud or abuse, the department may require the provider to implement a business integrity agreement. If the department requires a provider to enter a business integrity agreement and the provider refuses, the department shall ensure the provider is suspended from participation in Medicaid and children's health insurance program until the provider implements the required agreement.

5. The department shall suspend payments to a provider after the department determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid and children's health insurance program unless the provider has demonstrated good cause why the department should not suspend payments or should suspend payment only in part. If the provider also is enrolled in a managed care organization under contract with the department, the managed care organization must suspend all Medicaid payments to the provider.

6. The department may not make payments to a provider that is not complying with a department-directed repayment plan. Recoveries may be taken across any Medicaid program payment and delivery system.

7. The director of the medical services division, or the director's designee, shall determine the appropriate sanction for a provider under this chapter. The following may be considered in determining the sanction to be imposed:

a. Seriousness of the provider's offense. b. Extent of the provider's violations. c. Provider's history of prior violations. d. Prior imposition of sanctions against the provider. e. Prior provision of information and training to the provider. f. Provider's agreement to make restitution to the department. g. Actions taken or recommended by peer groups or licensing boards. h. Access to care for recipients. i. Provider's self-disclosure or self-audit discoveries. j. Provider's willingness to enter a business integrity agreement.

8. When a provider has been excluded from the Medicare program, the provider will also be terminated or excluded from participation in the Medicaid and children's health insurance program.

9. If the division determines there is a credible allegation of fraud, the division may impose any one or a combination of the following temporary sanctions:

a. Prepayment review of claims; b. Postpayment review of claims; c. Recovery of costs associated with an investigation;

1. d. Requirement of a provider self-audit;
2. e. Notification and referral to the appropriate state regulatory agency or licensing agency;
3. f. Suspension from participation in the Medicaid or children's health insurance program, including providers operating under an arrangement with a managed care organization;
4. g. Suspend payments to a provider;
5. h. Prior authorization of all services; and
6. i. Peer review at the provider's expense.10. After the completion of a further investigation, the department shall document its findings in writing and provide a copy of that documentation to the provider. Following a determination by the department that the provider has engaged in fraud or abuse; the department may terminate, exclude or impose sanctions with conditions, including the following:- a. Recovery of overpayments;
7. b. Recovery of excess payments;
8. c. Recovery of costs associated with an investigation;
9. d. Requirement of a provider self-audit;
10. e. Prepayment review of claims;
11. f. Postpayment review of claims;
12. g. Notification and referral to the appropriate state regulatory agency or licensing agency;
13. h. Prior authorization of all services;
14. i. Penalties as established by the department; and
15. j. Peer review at the provider's expense.11. A sanction may be applied to all known affiliates of a provider, provided that each sanctioned affiliate knew or should have known of the violation.12. A provider subject to termination or exclusion from participation may not submit claims for payment, either personally or through claims submitted by any clinic, group, corporation, or other association to the department, its fiscal agent or managed care organization for any services or supplies provided under the Medicaid or children's health insurance program except for any services or supplies provided prior to the effective date of the termination or exclusion.13. A clinic, group, corporation, or other organization which is a provider may not submit claims for payment to the department or its fiscal agent for any services or supplies provided by a person within the clinic, group, corporation, or organization who has been terminated or is under exclusion from participation in this state or any other state or who has been excluded from Medicare except for those services or supplies provided prior to the effective date of the termination or exclusion.14. When the department determines there is a need to sanction a provider, the director of the medical services division, or the director's designee, shall notify the provider in writing of the sanction imposed. The notice must advise the provider of the right to a review, when applicable.

15. After the department sanctions a provider, the director of the medical services division may notify the applicable professional society, board of registration or licensure, and any appropriate federal, state, human service zone, or county agency of the reasons for the sanctions and the sanctions imposed.

16. If the department sanctions a provider who also serves as a billing agent for other providers, the department may also impose sanctions against the other providers upon a finding that the actions performed as the billing agent fails to meet department standards.

History: Effective July 1, 1980; amended effective July 1, 2012; April 1, 2014; April 1, 2018; April 1, 2020.

General Authority: NDCC 50-06-01.9, 50-24.1-04, 50-24.1-36, 50-29-02

Law Implemented: NDCC 50-24.1-04, 50-24.1-36; 42 CFR 455.13, 42 CFR 455.14, 42 CFR 455.15, 42 CFR 455.16, 42 CFR 455.17, 42 CFR 455.23