
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC8902a]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart G--Insurance and Annuities
 
                      CHAPTER 89--HEALTH INSURANCE
 
Sec. 8902a. Debarment and other sanctions

    (a)(1) For the purpose of this section--
        (A) the term ``provider of health care services or supplies'' or 
    ``provider'' means a physician, hospital, or other individual or 
    entity which furnishes health care services or supplies;
        (B) the term ``individual covered under this chapter'' or 
    ``covered individual'' means an employee, annuitant, family member, 
    or former spouse covered by a health benefits plan described by 
    section 8903 or 8903a;
        (C) an individual or entity shall be considered to have been 
    ``convicted'' of a criminal offense if--
            (i) a judgment of conviction for such offense has been 
        entered against the individual or entity by a Federal, State, or 
        local court;
            (ii) there has been a finding of guilt against the 
        individual or entity by a Federal, State, or local court with 
        respect to such offense;
            (iii) a plea of guilty or nolo contendere by the individual 
        or entity has been accepted by a Federal, State, or local court 
        with respect to such offense; or
            (iv) in the case of an individual, the individual has 
        entered a first offender or other program pursuant to which a 
        judgment of conviction for such offense has been withheld;

    without regard to the pendency or outcome of any appeal (other than 
    a judgment of acquittal based on innocence) or request for relief on 
    behalf of the individual or entity; and
        (D) the term ``should know'' means that a person, with respect 
    to information, acts in deliberate ignorance of, or in reckless 
    disregard of, the truth or falsity of the information, and no proof 
    of specific intent to defraud is required; \1\
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    \1\ So in original. The semicolon probably should be a period.

    (2)(A) Notwithstanding section 8902(j) or any other provision of 
this chapter, if, under subsection (b), (c), or (d) a provider is barred 
from participating in the program under this chapter, no payment may be 
made by a carrier pursuant to any contract under this chapter (either to 
such provider or by reimbursement) for any service or supply furnished 
by such provider during the period of the debarment.
    (B) Each contract under this chapter shall contain such provisions 
as may be necessary to carry out subparagraph (A) and the other 
provisions of this section.
    (b) The Office of Personnel Management shall bar the following 
providers of health care services or supplies from participating in the 
program under this chapter:
        (1) Any provider that has been convicted, under Federal or State 
    law, of a criminal offense relating to fraud, corruption, breach of 
    fiduciary responsibility, or other financial misconduct in 
    connection with the delivery of a health care service or supply.
        (2) Any provider that has been convicted, under Federal or State 
    law, of a criminal offense relating to neglect or abuse of patients 
    in connection with the delivery of a health care service or supply.
        (3) Any provider that has been convicted, under Federal or State 
    law, in connection with the interference with or obstruction of an 
    investigation or prosecution of a criminal offense described in 
    paragraph (1) or (2).
        (4) Any provider that has been convicted, under Federal or State 
    law, of a criminal offense relating to the unlawful manufacture, 
    distribution, prescription, or dispensing of a controlled substance.
        (5) Any provider that is currently debarred, suspended, or 
    otherwise excluded from any procurement or nonprocurement activity 
    (within the meaning of section 2455 of the Federal Acquisition 
    Streamlining Act of 1994).

    (c) The Office may bar the following providers of health care 
services from participating in the program under this chapter:
        (1) Any provider--
            (A) whose license to provide health care services or 
        supplies has been revoked, suspended, restricted, or not 
        renewed, by a State licensing authority for reasons relating to 
        the provider's professional competence, professional 
        performance, or financial integrity; or
            (B) that surrendered such a license while a formal 
        disciplinary proceeding was pending before such an authority, if 
        the proceeding concerned the provider's professional competence, 
        professional performance, or financial integrity.

        (2) Any provider that is an entity directly or indirectly owned, 
    or with a control interest of 5 percent or more held, by an 
    individual who has been convicted of any offense described in 
    subsection (b), against whom a civil monetary penalty has been 
    assessed under subsection (d), or who has been debarred from 
    participation under this chapter.
        (3) Any individual who directly or indirectly owns or has a 
    control interest in a sanctioned entity and who knows or should know 
    of the action constituting the basis for the entity's conviction of 
    any offense described in subsection (b), assessment with a civil 
    monetary penalty under subsection (d), or debarment from 
    participation under this chapter.
        (4) Any provider that the Office determines, in connection with 
    claims presented under this chapter, has charged for health care 
    services or supplies in an amount substantially in excess of such 
    provider's customary charge for such services or supplies (unless 
    the Office finds there is good cause for such charge), or charged 
    for health care services or supplies which are substantially in 
    excess of the needs of the covered individual or which are of a 
    quality that fails to meet professionally recognized standards for 
    such services or supplies.
        (5) Any provider that the Office determines has committed acts 
    described in subsection (d).

Any determination under paragraph (4) relating to whether a charge for 
health care services or supplies is substantially in excess of the needs 
of the covered individual shall be made by trained reviewers based on 
written medical protocols developed by physicians. In the event such a 
determination cannot be made based on such protocols, a physician in an 
appropriate specialty shall be consulted.
    (d) Whenever the Office determines--
        (1) in connection with claims presented under this chapter, that 
    a provider has charged for a health care service or supply which the 
    provider knows or should have known involves--
            (A) an item or service not provided as claimed;
            (B) charges in violation of applicable charge limitations 
        under section 8904(b); or
            (C) an item or service furnished during a period in which 
        the provider was debarred from participation under this chapter 
        pursuant to a determination by the Office under this section, 
        other than as permitted under subsection (g)(2)(B);

        (2) that a provider of health care services or supplies has 
    knowingly made, or caused to be made, any false statement or 
    misrepresentation of a material fact which is reflected in a claim 
    presented under this chapter; or
        (3) that a provider of health care services or supplies has 
    knowingly failed to provide any information required by a carrier or 
    by the Office to determine whether a payment or reimbursement is 
    payable under this chapter or the amount of any such payment or 
    reimbursement;

the Office may, in addition to any other penalties that may be 
prescribed by law, and after consultation with the Attorney General, 
impose a civil monetary penalty of not more than $10,000 for any item or 
service involved. In addition, such a provider shall be subject to an 
assessment of not more than twice the amount claimed for each such item 
or service. In addition, the Office may make a determination in the same 
proceeding to bar such provider from participating in the program under 
this chapter.
    (e) The Office--
        (1) may not initiate any debarment proceeding against a 
    provider, based on such provider's having been convicted of a 
    criminal offense, later than 6 years after the date on which such 
    provider is so convicted; and
        (2) may not initiate any action relating to a civil penalty, 
    assessment, or debarment under this section, in connection with any 
    claim, later than 6 years after the date the claim is presented, as 
    determined under regulations prescribed by the Office.

    (f) In making a determination relating to the appropriateness of 
imposing or the period of any debarment under this section (where such 
debarment is not mandatory), or the appropriateness of imposing or the 
amount of any civil penalty or assessment under this section, the Office 
shall take into account--
        (1) the nature of any claims involved and the circumstances 
    under which they were presented;
        (2) the degree of culpability, history of prior offenses or 
    improper conduct of the provider involved; and
        (3) such other matters as justice may require.

    (g)(1)(A) Except as provided in subparagraph (B), debarment of a 
provider under subsection (b) or (c) shall be effective at such time and 
upon such reasonable notice to such provider, and to carriers and 
covered individuals, as shall be specified in regulations prescribed by 
the Office. Any such provider that is debarred from participation may 
request a hearing in accordance with subsection (h)(1).
    (B) Unless the Office determines that the health or safety of 
individuals receiving health care services warrants an earlier effective 
date, the Office shall not make a determination adverse to a provider 
under subsection (c)(5) or (d) until such provider has been given 
reasonable notice and an opportunity for the determination to be made 
after a hearing as provided in accordance with subsection (h)(1).
    (2)(A) Except as provided in subparagraph (B), a debarment shall be 
effective with respect to any health care services or supplies furnished 
by a provider on or after the effective date of such provider's 
debarment.
    (B) A debarment shall not apply with respect to inpatient 
institutional services furnished to an individual who was admitted to 
the institution before the date the debarment would otherwise become 
effective until the passage of 30 days after such date, unless the 
Office determines that the health or safety of the individual receiving 
those services warrants that a shorter period, or that no such period, 
be afforded.
    (3) Any notice of debarment referred to in paragraph (1) shall 
specify the date as of which debarment becomes effective and the minimum 
period of time for which such debarment is to remain effective. In the 
case of a debarment under paragraph (1), (2), (3), or (4) of subsection 
(b), the minimum period of debarment shall not be less than 3 years, 
except as provided in paragraph (4)(B)(ii).
    (4)(A) A provider barred from participating in the program under 
this chapter may, after the expiration of the minimum period of 
debarment referred to in paragraph (3), apply to the Office, in such 
manner as the Office may by regulation prescribe, for termination of the 
debarment.
    (B) The Office may--
        (i) terminate the debarment of a provider, pursuant to an 
    application filed by such provider after the end of the minimum 
    debarment period, if the Office determines, based on the conduct of 
    the applicant, that--
            (I) there is no basis under subsection (b), (c), or (d) for 
        continuing the debarment; and
            (II) there are reasonable assurances that the types of 
        actions which formed the basis for the original debarment have 
        not recurred and will not recur; or

        (ii) notwithstanding any provision of subparagraph (A), 
    terminate the debarment of a provider, pursuant to an application 
    filed by such provider before the end of the minimum debarment 
    period, if the Office determines that--
            (I) based on the conduct of the applicant, the requirements 
        of subclauses (I) and (II) of clause (i) have been met; and
            (II) early termination under this clause is warranted based 
        on the fact that the provider is the sole community provider or 
        the sole source of essential specialized services in a 
        community, or other similar circumstances.

    (5) The Office shall--
        (A) promptly notify the appropriate State or local agency or 
    authority having responsibility for the licensing or certification 
    of a provider barred from participation in the program under this 
    chapter of the fact of the debarment, as well as the reasons for 
    such debarment;
        (B) request that appropriate investigations be made and 
    sanctions invoked in accordance with applicable law and policy; and
        (C) request that the State or local agency or authority keep the 
    Office fully and currently informed with respect to any actions 
    taken in response to the request.

    (h)(1) Any provider of health care services or supplies that is the 
subject of an adverse determination by the Office under this section 
shall be entitled to reasonable notice and an opportunity to request a 
hearing of record, and to judicial review as provided in this subsection 
after the Office renders a final decision. The Office shall grant a 
request for a hearing upon a showing that due process rights have not 
previously been afforded with respect to any finding of fact which is 
relied upon as a cause for an adverse determination under this section. 
Such hearing shall be conducted without regard to subchapter II of 
chapter 5 and chapter 7 of this title by a hearing officer who shall be 
designated by the Director of the Office and who shall not otherwise 
have been involved in the adverse determination being appealed. A 
request for a hearing under this subsection shall be filed within such 
period and in accordance with such procedures as the Office shall 
prescribe by regulation.
    (2) Any provider adversely affected by a final decision under 
paragraph (1) made after a hearing to which such provider was a party 
may seek review of such decision in the United States District Court for 
the District of Columbia or for the district in which the plaintiff 
resides or has his or her principal place of business by filing a notice 
of appeal in such court within 60 days after the date the decision is 
issued, and by simultaneously sending copies of such notice by certified 
mail to the Director of the Office and to the Attorney General. In 
answer to the appeal, the Director of the Office shall promptly file in 
such court a certified copy of the transcript of the record, if the 
Office conducted a hearing, and other evidence upon which the findings 
and decision complained of are based. The court shall have power to 
enter, upon the pleadings and evidence of record, a judgment affirming, 
modifying, or setting aside, in whole or in part, the decision of the 
Office, with or without remanding the case for a rehearing. The district 
court shall not set aside or remand the decision of the Office unless 
there is not substantial evidence on the record, taken as whole, to 
support the findings by the Office of a cause for action under this 
section or unless action taken by the Office constitutes an abuse of 
discretion.
    (3) Matters that were raised or that could have been raised in a 
hearing under paragraph (1) or an appeal under paragraph (2) may not be 
raised as a defense to a civil action by the United States to collect a 
penalty or assessment imposed under this section.
    (i) A civil action to recover civil monetary penalties or 
assessments under subsection (d) shall be brought by the Attorney 
General in the name of the United States, and may be brought in the 
United States district court for the district where the claim involved 
was presented or where the person subject to the penalty resides. 
Amounts recovered under this section shall be paid to the Office for 
deposit into the Employees Health Benefits Fund. The amount of a penalty 
or assessment as finally determined by the Office, or other amount the 
Office may agree to in compromise, may be deducted from any sum then or 
later owing by the United States to the party against whom the penalty 
or assessment has been levied.
    (j) The Office shall prescribe regulations under which, with respect 
to services or supplies furnished by a debarred provider to a covered 
individual during the period of such provider's debarment, payment or 
reimbursement under this chapter may be made, notwithstanding the fact 
of such debarment, if such individual did not know or could not 
reasonably be expected to have known of the debarment. In any such 
instance, the carrier involved shall take appropriate measures to ensure 
that the individual is informed of the debarment and the minimum period 
of time remaining under the terms of the debarment.

(Added Pub. L. 100-654, title I, Sec. 101(a), Nov. 14, 1988, 102 Stat. 
3837; amended Pub. L. 105-266, Sec. 2(a), Oct. 19, 1998, 112 Stat. 
2363.)

                       References in Text

    Section 2455 of the Federal Acquisition Streamlining Act of 1994, 
referred to in subsec. (b)(5), is section 2455 of Pub. L. 103-355, which 
is set out as a note under section 6101 of Title 31, Money and Finance.


                               Amendments

    1998--Subsec. (a)(1)(D). Pub. L. 105-266, Sec. 2(a)(1)(A), added 
subpar. (D).
    Subsec. (a)(2)(A). Pub. L. 105-266, Sec. 2(a)(1)(B), substituted 
``subsection (b), (c), or (d)'' for ``subsection (b) or (c)''.
    Subsec. (b). Pub. L. 105-266, Sec. 2(a)(2)(A), substituted ``shall'' 
for ``may'' in introductory provisions.
    Subsec. (b)(5). Pub. L. 105-266, Sec. 2(a)(2)(B), amended par. (5) 
generally. Prior to amendment, par. (5) read as follows: ``Any 
provider--
        ``(A) whose license to provide health care services or supplies 
    has been revoked, suspended, restricted, or not renewed, by a State 
    licensing authority for reasons relating to the provider's 
    professional competence, professional performance, or financial 
    integrity; or
        ``(B) that surrendered such a license while a formal 
    disciplinary proceeding was pending before such an authority, if the 
    proceeding concerned the provider's professional competence, 
    professional performance, or financial integrity.''
    Subsec. (c). Pub. L. 105-266, Sec. 2(a)(3), added subsec. (c). 
Former subsec. (c) redesignated (d).
    Subsec. (d). Pub. L. 105-266, Sec. 2(a)(3), redesignated subsec. (c) 
as (d). Former subsec. (d) redesignated (e).
    Subsec. (d)(1). Pub. L. 105-266, Sec. 2(a)(4), amended par. (1) 
generally. Prior to amendment, par. (1) read as follows: ``in connection 
with a claim presented under this chapter, that a provider of health 
care services or supplies--
        ``(A) has charged for health care services or supplies that the 
    provider knows or should have known were not provided as claimed; or
        ``(B) has charged for health care services or supplies in an 
    amount substantially in excess of such provider's customary charges 
    for such services or supplies, or charged for health care services 
    or supplies which are substantially in excess of the needs of the 
    covered individual or which are of a quality that fails to meet 
    professionally recognized standards for such services or 
    supplies;''.
    Subsec. (e). Pub. L. 105-266, Sec. 2(a)(3), redesignated subsec. (d) 
as (e). Former subsec. (e) redesignated (f).
    Subsec. (f). Pub. L. 105-266, Sec. 2(a)(3), (5), redesignated 
subsec. (e) as (f) and inserted ``(where such debarment is not 
mandatory)'' after ``debarment under this section''. Former subsec. (f) 
redesignated (g).
    Subsec. (g). Pub. L. 105-266, Sec. 2(a)(3), redesignated subsec. (f) 
as (g). Former subsec. (g) redesignated (h).
    Subsec. (g)(1). Pub. L. 105-266, Sec. 2(a)(6)(A), added par. (1) and 
struck out former par. (1) which read as follows: ``The debarment of a 
provider under subsection (b) or (c) shall be effective at such time and 
upon such reasonable notice to such provider, and to carriers and 
covered individuals, as may be specified in regulations prescribed by 
the Office.''
    Subsec. (g)(3). Pub. L. 105-266, Sec. 2(a)(6)(B), inserted ``of 
debarment'' after ``notice'' and inserted at end ``In the case of a 
debarment under paragraph (1), (2), (3), or (4) of subsection (b), the 
minimum period of debarment shall not be less than 3 years, except as 
provided in paragraph (4)(B)(ii).''
    Subsec. (g)(4)(B)(i)(I). Pub. L. 105-266, Sec. 2(a)(6)(C), 
substituted ``subsection (b), (c), or (d)'' for ``subsection (b) or 
(c)''.
    Subsec. (g)(6). Pub. L. 105-266, Sec. 2(a)(6)(D), struck out par. 
(6) which read as follows: ``The Office shall, upon written request and 
payment of a reasonable charge to defray the cost of complying with such 
request, furnish a current list of any providers barred from 
participating in the program under this chapter, including the minimum 
period of time remaining under the terms of each provider's debarment.''
    Subsec. (h). Pub. L. 105-266, Sec. 2(a)(3), redesignated subsec. (g) 
as (h). Former subsec. (h) redesignated (i).
    Subsec. (h)(1), (2). Pub. L. 105-266, Sec. 2(a)(7), added pars. (1) 
and (2) and struck out former pars. (1) and (2) which read as follows:
    ``(1) The Office may not make a determination under subsection (b) 
or (c) adverse to a provider of health care services or supplies until 
such provider has been given written notice and an opportunity for a 
hearing on the record. A provider is entitled to be represented by 
counsel, to present witnesses, and to cross-examine witnesses against 
the provider in any such hearing.
    ``(2) Notwithstanding section 8912, any person adversely affected by 
a final decision under paragraph (1) may obtain review of such decision 
in the United States Court of Appeals for the Federal Circuit. A written 
petition requesting that the decision be modified or set aside must be 
filed within 60 days after the date on which such person is notified of 
such decision.''
    Subsec. (i). Pub. L. 105-266, Sec. 2(a)(3), (8), redesignated 
subsec. (h) as (i), substituted ``subsection (d)'' for ``subsection 
(c)'', and inserted at end ``The amount of a penalty or assessment as 
finally determined by the Office, or other amount the Office may agree 
to in compromise, may be deducted from any sum then or later owing by 
the United States to the party against whom the penalty or assessment 
has been levied.'' Former subsec. (i) redesignated (j).
    Subsec. (j). Pub. L. 105-266, Sec. 2(a)(3), redesignated subsec. (i) 
as (j).


                    Effective Date of 1998 Amendment

    Pub. L. 105-266, Sec. 2(b), Oct. 19, 1998, 112 Stat. 2366, provided 
that:
    ``(1) In general.--Except as provided in paragraph (2), the 
amendments made by this section [amending this section] shall take 
effect on the date of the enactment of this Act [Oct. 19, 1998].
    ``(2) Exceptions.--(A) Paragraphs (2), (3), and (5) of section 
8902a(c) of title 5, United States Code, as amended by subsection 
(a)(3), shall apply only to the extent that the misconduct which is the 
basis for debarment under paragraph (2), (3), or (5), as applicable, 
occurs after the date of the enactment of this Act.
    ``(B) Paragraph (1)(B) of section 8902a(d) of title 5, United States 
Code, as amended by subsection (a)(4), shall apply only with respect to 
charges which violate section 8904(b) of such title for items or 
services furnished after the date of the enactment of this Act.
    ``(C) Paragraph (3) of section 8902a(g) of title 5, United States 
Code, as amended by subsection (a)(6)(B), shall apply only with respect 
to debarments based on convictions occurring after the date of the 
enactment of this Act.''


                      Effective Date; Prior Conduct

    Section 102 of title I of Pub. L. 100-654 provided that:
    ``(a) Applicability.--The amendments made by this title [enacting 
this section] shall be effective with respect to any calendar year 
beginning, and contracts entered into or renewed for any calendar year 
beginning, after the date of the enactment of this Act [Nov. 14, 1988].
    ``(b) Prior Conduct Not To Be Considered.--In carrying out section 
8902a of title 5, United States Code, as added by this title, no 
debarment, civil monetary penalty, or assessment may be imposed under 
such section based on any criminal or other conduct occurring before the 
beginning of the first calendar year which begins after the date of the 
enactment of this Act [Nov. 14, 1988].''
