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I. AUTHORITY: 42 C.F.R. § § 431.958 and .960(b)(1) and (b)(2), 42 C.F.R. § § 433.304 and .52, Improper Payments Elimination and Recovery Act (“IPERA”), Provider Agreement, Tennessee Code Annotated (“T.C.A.”) § § 4-3-2708, 4-18-101 through 4-18-106, 33-2-408(c), 71-5-181 through 71-5-184, and the Deficit Reduction Act of 2005.

II. PURPOSE: The purpose of this policy is to ensure consistency in application of recoupments when improper payments or fraud related to Home and Community Based Services (“HCBS”) waivers have been identified.

III. APPLICATION: This policy applies to divisions, units, or regional departments of the Department of Intellectual and Developmental Disabilities (“Department”) that are involved in the application of recoupments when an improper payment or fraud related to HCBS waivers has have been identified.

IV. DEFINITIONS:

D. Abuse shall mean, for the purpose of this policy, incidents or practices of providers that are inconsistent with sound fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. It also includes recipient practices that result in unnecessary cost to the Medicaid program. generally accepted accounting principles and/or result in unnecessary cost to the Medicaid program, or in reimbursement of services that are not medically necessary or that fail to meet professionally recognized standards for health care.

D. Approved Provider or Provider shall mean a provider who has been approved by DIDD the Department to provide one or more HCBS waiver services and/or state-funded services.

E. Centers for Medicare and Medicaid Services (“CMS”) shall mean the United States federal agency which administers Medicare, Medicaid, and the Children's Health Insurance Program.

F. Continuity of Operations Plan (“COOP”) shall mean an emergency preparedness plan which provides planning and guidance to Department workforce members who must implement the plan to ensure continuity of the essential functions under all threats and conditions.

G. Division of TennCare shall mean the program administered by the single state agency, as designated by the state and CMS, pursuant to Title XIX of the Social Security Act and the Section 11151915(c) research and demonstration waivers granted to the State of Tennessee and any successor programs. For purposes of this policy, references to TennCare or the TennCare Program shall include CoverKids unless otherwise specified.

H.

I. Grier Order shall mean the Grier Revised Consent Decree, a court-ordered settlement that was the result of a class action lawsuit called Grier vs. Wadley. The Grier order outlines requirements which ensure adequate notice and procedural protection upon the denial of Medicaid services to an eligible person.

J. Division of TennCare, Managed Care Operations, Office of Program Integrity (“OPI”) shall mean the state Medicaid agency unit responsible for the prevention, detection and investigation of alleged provider fraud, waste, and abuse of the TennCare program. OPI is responsible for providing the Managed Care Program Integrity Guidelines for Fraud, Waste, and Abuse. These guidelines are incorporated by reference and shall be utilized.

the single state Medicaid Agency responsible for administering the state’s Medicaid Program, TennCare.

K. Fraud, for the purpose of this policy, shall mean, for the purpose of this policy, an intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself, or some other person, or entity. It includes any act that constitutes fraud under applicable Federal or Statestate or federal law.the deception or misrepresentation made by a person with the knowledge that the deception could result in an unauthorized benefit to himself or another person. For purposes of this definition, no proof of specific intent to defraud is required.

L. Home and Community Based Services (“HCBS”) waiver or waiver shall mean a waiver program approved for Tennessee by the CMS to provide services to a specified number of Medicaid eligible individuals who have an intellectual disability and who meet criteria for Medicaid reimbursement of care in an Intermediate Care Facility for Individuals with Intellectual Disabilities (“ICF/IID”). The 1915(c) waivers for people with intellectual disabilities in Tennessee are operated by the Department of Intellectual and Developmental Disabilities with oversight from TennCare, the state Medicaid agency.

M. Improper Payment shall mean any payment that should not have been made or that was made in an incorrect amount under statutory, contractual, administrative, or other legally applicable requirements, including payments made for acts of fraud, waste, or abuse. An improper payment also includes any payment that was made to an ineligible recipient, payment for non-covered services, duplicate payments, payments for services not received, and payments that are for the incorrect amount. In addition, when it cannot be determined whether a payment was proper because of insufficient or lack of documentation, this payment must also be considered an improper payment.

N. Opportunity for Recoupment Review (“ORR”) shall mean the DIDD Department process that allows a provider agency to request a review and submit additional documentation that may reduce or eliminate a recoupment.

O. Pre-Admission Evaluation (“PAE”) shall mean the Medicaid data collection form used to document that a person supported by the Department meets the initial level of care criteria for reimbursement of services through an HCBS waiver, an ICF/IID, or a nursing facility.

P. Provider Agreement shall mean a signed agreement between the department of Finance and Administration (F&A), DIDD, the Bureau of TennCareDepartment, the Division of TennCare, and an approved provider agency that which specifies the terms and conditions a provider agency must meet to receive reimbursement for services provided, as amended.

Q. Rebill shall mean the process by which a provider agency authorizes the reduction of a future payment by the recoupment amount in order to generate the proper reimbursement for service(s).

R. Recoupment shall mean the process by which an Managed Care Company (“MCC”), the State of Tennessee or the Ffederal government, or any of their Bbureaus, Aagencies or Ccontractors recover Title XIX monies paid to an MCC, provider or enrollee. recovery of money paid to an approved provider agency, due to the provider agency’s failure to comply with Department or TennCare requirements for service provision or documentation of such. Recoupments do not include payment adjustments due to retroactive cost plan changes. Such adjustments or voids are not considered recoupments because they are not the result of improper billing by the provider agency.

S. Recoupment Letter shall mean a written document that describes the improper payment and the recoupment to be applied.

T. Review shall mean a methodical examination, audit, or survey.

U. TennCare shall mean the program administered by the single state agency, as designated by the state and CMS, pursuant to Title XIX of the Social Security Act and the Section 1115 research and demonstration waiver granted to the State of Tennessee and any successor programs. For purposes of this policy, references to TennCare or the TennCare Program shall include CoverKids unless otherwise specified. the single state Medicaid Agency responsible for administering the state’s Medicaid Program.

V.

W. The Division of TennCare, Managed Care Operations, Office of Program Integrity (OPI) is the State Medicaid Agency unit responsible for the prevention, detection and investigation of alleged provider fraud, waste, and abuse of the TennCare program. OPI is responsible for providing the Managed Care Program Integrity Guidelines for Fraud, Waste, and Abuse. These guidelines are incorporated by reference and shall be utilized.

X.

Y. Waste shall mean the overutilization of services, or other practices that, directly or indirectly, result in unnecessary costs to the Medicaid program. Waste is generally not considered to be caused by criminally negligent actions but rather the misuse of resources. the extravagant, careless or needless expenditure of government funds or the consumption of government property that results from deficient practices, systems, controls or decisions. The term also includes improper practices not involving prosecutable fraud.

Z. 2362 shall mean the form returned from the Division of TennCare upon approval of admission into HCBS waiver services.

V. POLICY: Recoupment of improper payment(s) to providers of HCBS waiver services shall be recovered in a consistent fashion and in accordance with current statutes, rules and regulations.

VI. PROCEDURES:

D. Identification of issues for which recoupments may be applied may originate from DIDD the Department, TennCare, and/or the Office of the Comptroller or other state and federal monitoring agencies. Such issues may involve non-compliance with DIDD Department or TennCare/Medicaid rules, the Grier order, regulations, and policies or non-compliance with other state and federal requirements.

D. Reasons for Recoupment

The Department or its designated fiscal agent may recoup funds for circumstances such as, but not limited to the following as listed below. See the DIDDDepartment Provider Manual for guidelines for documenting services.

1. No PAE or Transfer Form (for Independent Support Coordination (“ISC”) agencies, if applicable) for persons people supported.

2. No forms as required for eligibility for persons people supported (for ISC agencies, if applicable).

3. No current Medicaid Waiver Re-evaluation.

4. Billing for services for which no or inadequate supporting documentation is found.

5. Billing for services which were not provided.

6. Billing for multiple services concurrently, except where specifically authorized by DIDD the Department.

7. Not meeting defined requirements of service category (consistent lack of adherence to fundamental requirements of each service category).

8. License required to be maintained by the Provider provider agency has lapsed or expired.

9. Services provided at locations other than those specifically approved for an individual a person supported.

10. Amounts or types of service approved by DIDD which were billed but were not provided.

11. Required and approved staffing or caseload ratios were not met.

12. Services performed by Provider provider agency employees, subcontractors, or volunteers who have not completed background or registry checks or who have not completed applicable training requirements.

C. Return of Overpayments. In accordance with the Affordable Care Act (“ACA”) and TennCare policy and procedures, Provider a provider agency shall report overpayments and, when it is applicable, return overpayments within sixty (60) days from the date the overpayment is identified. Overpayments that which are not returned within sixty (60) days from the date the overpayment was identified may result in a penalty pursuant to state or federal law.

D. Providers who agencies which receive more than Five Million Dollars ($5,000,000) per year from Federal federal health programs shall comply with the provisions of 42 United States Code (“U.S.C.”) § 1396(a)(68) et seq., as applicable, regarding policies and education of employees, subcontractors, and volunteers as regards regarding the terms of the False Claims Act and whistleblower protections.

E. Recoupments

1. DIDD or its designated fiscal agent The Department may recoup funds for reasons as described in VI.B.1 of this policy.

1. Recoupment correspondence shall be sent by DIDD the Department via secure email or certified mail to the executive director of the provider agency and/or the board chair or agency owner, if applicable.

2. All recoupment correspondence shall be copied to the Deputy Commissioner of Program Operations, Assistant Commissioner of Quality Management, Office of General Counsel and Regulatory Affairs Assistant Commissioner and General Counsel, Director of Provider Services, Director of Business Services, Director of Risk Management and Licensure, Regional Office Director, Regional Director of Compliance, and Bureau of TennCare and the TennCare Director, Office of Program Integrity (“OPI”), and the TennCare Director of Intellectual and Developmental Disability Services.

3. If an ORR Opportunity for Recoupment Review (“ORR”) is requested by the provider agency, then the procedures outlined in the Provider Agreement section 22(b)(i-vi) shall be followed.

4. If an ORR is not requested by the provider agency, then the improper payments shall be recovered using one or more of the following methods:

a. The provider agency shall be directed to submit rebill document(s) to the appropriate Department Regional Office within thirty (30) calendar days of receipt of the recoupment letter or within thirty (30) calendar days of transmission of the email notification (as applicable)., if sent electronically, of the recoupment letter. If the provider agency does not submit the rebilling documents in accordance with the above timelines, the Department Regional Office shall affect the recoupment in accordance with a timeline established by DIDD the Department Office of Business Services.

b. The provider agency shall be directed to submit a paper check within to the Department’s Fiscal office within thirty (30) calendar days of receipt or transmission, if sent electronically, of the recoupment letter, as indicated in the recoupment notification.

Department of Intellectual and Developmental Disabilities

ATTN: Office of Fiscal Services

400 Deaderick Street

Nashville, TN 37243

c. The recoupment amount shall be withheld from future payments until the entire recoupment amount is recovered, as described in section VI.DF. of this policy.

5. The Provider provider agency shall not bill or accept any payment from the person supported, his/her parent(s), guardian(s), spouse, or any other legally responsible party for any recoupment amounts.

6. The provider agency is prohibited from taking any actions to recoup or withhold improperly paid funds already paid or potentially due to a provider when the issues, services, or claims upon which the recoupment or withhold are based meet one or more of the following criteria:

a. The improperly paid funds have already been recovered by the State of Tennessee, either by TENNCARETennCare directly or indirectly as part of a resolution of a state or federal investigation and/or lawsuit, including but not limited to False Claims Act cases; or

b. When the issues, services, or claims that are the basis of the recoupment or withhold are currently being investigated by the State of Tennessee or are the subject of pending Federal or Statestate or federal litigation or investigation,

c. The prohibition described in this section shall be limited to a specific provider(s), for specific dates, and for specific issues, services, or claims.

D. Installment Payment Plan

After a recoupment amount has been finalized, the provider agency director or board chair may contact the department Department within five (5) business days of receipt or transmission of email notification (as applicable), if sent electronically, of the recoupment letter to request an installment payment plan.

1. All requests for installment payment plans shall be submitted in writing to the Director of Risk Management and Licensure.

2. The Director of Risk Management and Licensure shall review the provider’s agency’s request, approve or deny it, and inform the provider agency in writing (via email or certified mail) of the decision within thirty (30) calendar days of receiving the provider’s request.

E. The Department may initiate legal action for failure to return recouped payments as directed.

F. Recoupments shall be reported to the Division of TennCare, OPI, as specified in the Department’s contract interagency agreement to operate the HCBS waiver programs.

G. COOP: In the event of an emergency, such as pandemic, natural disaster, or as otherwise identified by the Governor’s Executive Order(s) or as deemed necessary by the Department Commissioner or designee, COOP implementation may supersede this policy.

VII. REVISION HISTORY: March 16, 2020June 16, 2020..

VIII. TENNCARE APPROVAL: December 19, 2014; May 1, 2020.

IX. ATTACHMENTS: N/ANone.

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