§ 1001.801 Failure of HMOs and CMPs to furnish medically necessary items and services.

(a) Circumstances for exclusion. The OIG may exclude an entity— (1) That is a— (i) Health maintenance organization (HMO), as defined in section 1903(m) of the Act, providing items or services under a State Medicaid Plan; (ii) Primary care case management system providing services, in accordance with a waiver approved under section 1915(b)(1) of the Act; or (iii) HMO or competitive medical plan providing items or services in accordance with a risk-sharing contract under section 1876 of the Act; (2) That has failed substantially to provide medically necessary items and services that are required under a plan, waiver or contract described in paragraph (a)(1) of this section to be provided to individuals covered by such plan, waiver or contract; and (3) Where such failure has adversely affected or has a substantial likelihood of adversely affecting covered individuals. (b) The OIG's determination under paragraph (a)(2) of this section—that the medically necessary items and services required under law or contract were not provided—will be made on the basis of information, including sanction reports, from the following sources: (1) The QIO or other quality assurance organization under contract with a State Medicaid plan for the area served by the HMO or competitive medical plan; (2) State or local licensing or certification authorities; (3) Fiscal agents or contractors, or private insurance companies; (4) State or local professional societies; (5) CMS's HMO compliance office; or (6) Any other sources deemed appropriate by the OIG. (c) Length of exclusion. (1) An exclusion imposed in accordance with this section will be for a period of 3 years, unless aggravating or mitigating factors set forth in paragraphs (c)(2) and (c)(3) of this section form a basis for lengthening or shortening the period. (2) Any of the following factors may be considered aggravating and a basis for lengthening the period of exclusion— (i) The entity failed to provide a large number or a variety of items or services; (ii) The failures occurred over a lengthy period of time; (iii) The entity's failure to provide a necessary item or service that had or could have had a serious adverse effect; (iv) Whether the individual or entity has a documented history of criminal, civil or administrative wrongdoing; or (v) The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board, if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion. (3) Only the following factors may be considered as mitigating and a basis for reducing the period of exclusion— (i) There were few violations and they occurred over a short period of time; or (ii) The entity took corrective action upon learning of impermissible activities by an employee or contractor.