1. (a) A felony or misdemeanor conviction, as defined in 42 C.F.R. §1001.2, under Texas law, the laws of another state, or federal law, may affect a provider's and/or person's ability to participate.

2. (b) The OIG may recommend denial of an enrollment application of the applicant or a person required to be disclosed in accordance with §371.1005 of this subchapter (relating to Disclosure Requirements) on the basis of information revealed through a background check on the applicant, provider, or a person required to be disclosed. A background check may include:

   1. (1) information concerning the licensing status of the health care professional;
   2. (2) information contained in the criminal history record information check performed in accordance with Texas Government Code §531.1032;
   3. (3) a review of federal databases;
   4. (4) the pendency of an open investigation by the OIG; and
   5. (5) any other reason that the OIG determines appropriate.

3. (c) On a case-by-case basis, the OIG may recommend approval of an enrollment application despite the existence of a criminal history. The case-by-case recommendation for approval is made by considering the following circumstances:

   1. (1) the number of criminal convictions as defined in 42 C.F.R. §1001.2;
   2. (2) the nature and seriousness of the crime;
   3. (3) whether the individual or entity has completed the sentence, punishment, or other requirements that were imposed for the crime and, if so, the length of time since completion;
   4. (4) in the case of an individual, the age of the individual at the time the crime was committed;
   5. (5) whether the crime was committed in connection with the individual's or entity's participation in Medicaid or other HHS programs;
   6. (6) the extent of the individual's or entity's rehabilitation efforts and outcome;
   7. (7) the conduct of the individual or entity, and the work history of the individual, both before and after the crime;
   8. (8) the relationship of the crime to the individual or entity's fitness or capacity to remain a provider or become a provider;
   9. (9) whether approving the individual or entity would offer the individual or entity the opportunity to engage in further criminal activity;
   10. (10) the extent to which the individual or entity provides relevant information or otherwise demonstrates that approval should be granted; and
   11. (11) any other circumstances that HHSC determines are relevant to the individual or entity's eligibility.

4. (d) The OIG may recommend permanent denial of an enrollment application if:

   1. (1) the applicant, provider, or a person required to be disclosed has been convicted, as defined in 42 C.F.R. §1001.2, of an offense arising from a fraudulent act under Medicaid or other HHS programs; and
   2. (2) that fraudulent act resulted in injury to an elderly person, a person with a disability, or a person younger than 18 years of age.

5. (e) The OIG may recommend denial of an enrollment application if it determines in its discretion that the applicant may pose an increased risk for committing fraud, waste, or abuse or may demonstrate unfitness to provide or bill for medical assistance items or services. In addition to the applicant's criminal, regulatory, and administrative sanction history, the OIG considers all applicable circumstances, including the following, if applicable:

   1. (1) the applicant, a person required to be disclosed, or a person with an ownership or control interest in the provider did not submit complete, timely, and accurate information, failed to cooperate with any provider screening methods, or refused to permit access for a site visit;
   2. (2) the applicant or a person required to be disclosed has failed to repay overpayments to Medicaid, CHIP, or other HHS programs;
   3. (3) the applicant, provider, or a person required to be disclosed pursuant to §371.1005 of this subchapter, has been suspended or prohibited from participating, excluded, terminated, or debarred from participating in any state Medicaid, CHIP or other HHS agency program;
   4. (4) the applicant, provider, or a person required to be disclosed has participated in Medicaid or CHIP program and failed to bill for medical assistance or refer clients for medical assistance within the 12-month period prior to submission of the enrollment application;
   5. (5) the applicant, provider, or a person required to be disclosed has falsified any information on the enrollment application; and
   6. (6) The OIG is unable to verify the identity of the applicant, provider, or a person required to be disclosed.

Source Note:The provisions of this §371.1011 adopted to be effective December 31, 2012, 37 TexReg 10189; amended to be effective May 1, 2016, 41 TexReg 2941.