Ohio Rev. Code Ann. § 5164.36 – Credible allegation of fraud or disqualifying indictment; suspension of provider agreement

(A) As used in this section:
1. (1) "Credible allegation of fraud" has the same meaning as in 42 C.F.R. 455.2, except that for purposes of this section any reference in that regulation to the "state" or the "state medicaid agency" means the department of medicaid.
2. (2) "Owner" has the same meaning as in section 5164.37 of the Revised Code.
(B)
1. (1) Except as provided in division (C) of this section and in rules authorized by this section, on determining there is a credible allegation of fraud for which an investigation is pending under the medicaid program against a medicaid provider, the department of medicaid shall suspend the provider agreement held by the provider. Subject to division (C) of this section, the department shall also terminate medicaid payments to the provider for services rendered.
2. (2)
  1. (a) The suspension shall continue in effect until either of the following is the case:
    1. (i) The department or a prosecuting authority determines that there is insufficient evidence of fraud by the medicaid provider;
    2. (ii) The proceedings in any related criminal case are completed through dismissal of the indictment or through conviction, entry of a guilty plea, or finding of not guilty.
  2. (b) If the department commences a process to terminate the suspended provider agreement, the suspension shall also continue in effect until the termination process is concluded.
3. (3) When subject to a suspension under this section, a medicaid provider, owner, officer, authorized agent, associate, manager, or employee shall not own or provide services to any other medicaid provider or risk contractor or arrange for, render, or order services to any other medicaid provider or risk contractor or arrange for, render, or order services for medicaid recipients during the period of suspension. During the period of suspension, the provider, owner, officer, authorized agent, associate, manager, or employee shall not receive direct payments under the medicaid program or indirect payments of medicaid funds in the form of salary, shared fees, contracts, kickbacks, or rebates from or through any other medicaid provider or risk contractor.
(C) The department shall not suspend a provider agreement or terminate medicaid payments under division (B) of this section if the medicaid provider or owner can demonstrate through the submission of written evidence that the provider or owner did not directly or indirectly sanction the action of its authorized agent, associate, manager, or employee that resulted in the credible allegation of fraud.
(D) The termination of medicaid payment under division (B) of this section applies only to payments for medicaid services rendered subsequent to the date on which the notice required by division (E) of this section is sent. Claims for payment of medicaid services rendered by the medicaid provider prior to the issuance of the notice may be subject to prepayment review procedures whereby the department reviews claims to determine whether they are supported by sufficient documentation, are in compliance with state and federal statutes and rules, and are otherwise complete.
(E) After suspending a provider agreement under division (B) of this section, the department shall, as specified in 42 C.F.R. 455.23(b), send notice of the suspension to the affected medicaid provider or owner in accordance with the following timeframes:
1. (1) Not later than five days after the suspension, unless a law enforcement agency makes a written request to temporarily delay the notice;
2. (2) If a law enforcement agency makes a written request to temporarily delay the notice, not later than thirty days after the suspension occurs subject to the conditions specified in division (F) of this section.
(F) A written request for a temporary delay described in division (E)(2) of this section may be renewed in writing by a law enforcement agency not more than two times except that under no circumstances shall the notice be issued more than ninety days after the suspension occurs.
(G) The notice required by division (E) of this section shall do all of the following:
1. (1) State that payments are being suspended in accordance with this section and 42 C.F.R. 455.23;
2. (2) Set forth the general allegations related to the nature of the conduct leading to the suspension, except that it is not necessary to disclose any specific information concerning an ongoing investigation;
3. (3) State that the suspension continues to be in effect until either of the following is the case:
  1. (a) The department or a prosecuting authority determines that there is insufficient evidence of fraud by the provider;
  2. (b) The proceedings in any related criminal case are completed through dismissal of the indictment or through conviction, entry of a guilty plea, or finding of not guilty and, if the department commences a process to terminate the suspended provider agreement, until the termination process is concluded.
4. (4) Specify, if applicable, the type or types of medicaid claims or business units of the medicaid provider that are affected by the suspension;
5. (5) Inform the medicaid provider or owner of the opportunity to submit to the department, not later than thirty days after receiving the notice, a request for reconsideration of the suspension in accordance with division (H) of this section.
(H)
1. (1) Pursuant to the procedure specified in division (H)(2) of this section, a medicaid provider or owner subject to a suspension under this section may request a reconsideration of the suspension. The request shall be made not later than thirty days after receipt of a notice required by division (E) of this section. The reconsideration is not subject to an adjudication hearing pursuant to Chapter 119. of the Revised Code.
2. (2) In requesting a reconsideration, the medicaid provider or owner shall submit written information and documents to the department. The information and documents may pertain to any of the following issues:
  1. (a) Whether the determination to suspend the provider agreement was based on a mistake of fact, other than the validity of an indictment in a related criminal case.
  2. (b) If there has been an indictment in a related criminal case, whether any offense charged in the indictment resulted from an offense specified in division (E) of section 5164.37 of the Revised Code.
  3. (c) Whether the provider or owner can demonstrate that the provider or owner did not directly or indirectly sanction the action of its authorized agent, associate, manager, or employee that resulted in the suspension under this section or an indictment in a related criminal case.
(I) The department shall review the information and documents submitted in a request made under division (H) of this section for reconsideration of a suspension. After the review, the suspension may be affirmed, reversed, or modified, in whole or in part. The department shall notify the affected provider or owner of the results of the review. The review and notification of its results shall be completed not later than forty-five days after receiving the information and documents submitted in a request for reconsideration.
(J) Rules adopted under section 5164.02 of the Revised Code may specify circumstances under which the department would not suspend a provider agreement pursuant to this section.