Okla. Admin. Code § 317:55-5-10 - Non-compliance of contracted entities
(a)
Failure
to comply. If the CE fails to fulfill its duties and obligations or meet
performance standards under 42 C.F.R. Part 438,
42 U.S.C. §
1396b(m),
42 U.S.C. §
1396u-2, Title 317 of the Oklahoma
Administrative Code, or the CE Contract , OHCA will notify the CE of unmet
performance expectations, violations or deficiencies, and may impose corrective
actions or any sanctions in addition to or instead of any actions or sanctions
specified in the Contract .
(b)
Non-material compliance deficiencies.
(1) If OHCA determines that unmet performance
expectations, violations, or deficiencies do not result in a material
deficiency or delay in the implementation or operation of services, the CE will
have five (5) business days (or the date specified by OHCA ) of receipt of
notice to provide the OHCA with a written response that:
(A) Explains the reasons for the
deficiency;
(B) The CE's plan to
address or cure the deficiency; and
(C) The date and time by which the deficiency
will be cured.
(D) If the CE
disagrees with OHCA 's findings, the CE shall provide its reasons for
disagreeing with OHCA 's findings.
(2) The CE's proposed cure of a non-material
deficiency is subject to the approval of OHCA .
(3) The CE's repeated commission of
non-material deficiencies or repeated failure to resolve any such deficiencies
may be regarded by OHCA as a material deficiency and entitle OHCA to pursue any
other remedy provided in the Contract or any other appropriate remedy OHCA may
have at law or equity.
(c)
Material compliance
deficiencies.
(1) An item of material
non compliance means a specific action of the CE that:
(A) Violates a substantive term of the
Contract ;
(B) Fails to meet an
agreed upon measure of performance; or
(C) Represents a failure of the CE to be
reasonably responsive to a reasonable request of OHCA relating to the Services
for information, assistance, or support within the timeframe specified by
OHCA .
(2) If OHCA
determines that unmet performance expectations, violations, or deficiencies
result in a material deficiency, The CE may be required to submit a written CAP
under the signature of the CE's CEO to correct or resolve a material breach of
the Contract .
(A) The CAP must:
(i) Be submitted by the deadline set forth in
the OHCA 's request for a CAP .
(ii)
Be reviewed and approved by the OHCA .
(B) Following the approval of the CAP , the
OHCA may:
(i) Condition such approval on
completion of tasks in the order or priority that the OHCA
prescribes;
(ii) Disapprove
portions of the CE's proposed CAP ; or
(iii) Require additional or different
corrective action(s) or timelines/time limits.
(C) The CE remains responsible for achieving
the established performance criteria.
(3) OHCA may apply one (1) or more of the
following non-compliance remedies for each item of material noncompliance
listed in (2) of this Section.
(A) Conduct
accelerated monitoring of the CE;
(B) Require additional, more detailed,
financial and/or programmatic reports to be submitted by the CE;
(C) Decline to renew or extend the
Contract ;
(D) Require forfeiture of
all or part of the CE's performance bond or other substitute; or
(4) In addition to the non-compliance
remedies, the OHCA may impose tailored remedies, including liquidated damages
pursuant to (e) of this Section.
(d)
Imposition of intermediate
sanctions. In accordance with
42 C.F.R. §
438.702, if OHCA determines the CE is
non-compliant and 42 C.F.R.
§
438.700(b) is the
basis for the Agency's determination, OHCA may impose the following
intermediate sanctions:
(1) Imposition of
civil money penalties in the amounts specified in
42 C.F.R. §
438.704;
(2) Grant Enrollee (s) the right to terminate
enrollment without cause and notifying the affected Enrollees of their right to
disenroll;
(3) Suspend all new
enrollment of Enrollee (s), including default enrollment , after the date OHCA
notifies the CE of a determination of a violation of any requirement under
§ 1903(m) or § 1932 of The Act ;
(4) Suspend or recoup capitation payments to
the CE for Enrollees enrolled after the effective date of the sanction and
until OHCA is satisfied that the reason for imposition of the sanction no
longer exist and is not likely to recur;
(5) Impose additional sanctions provided for
under state statutes or regulations to address noncompliance in accordance with
42 C.F.R. §
438.702(b); and
(6) Appoint temporary management in
accordance with 42 C.F.R.
§
438.706. The CE shall comply with the
contractual requirements found in Section 1.26.3.5 "Intermediate Sanctions" of
the Contract .
(7) The CE shall be
responsible for all reasonable expenses related to the direct operation of the
Sooner Select program, including but not limited to attorney fees, cost of
preliminary or other audits of the CE and expenses related to the management of
any office or other assets of the CE.
(e)
Liquidated damages. OHCA may
impose actual, consequential, and liquidated damages in accordance with Tit. 23
O.S. § 21, resulting from the CE's failure to comply with any of the terms
of the Contract , Ch. 55, or any applicable state or federal regulations.
Consequential and liquidated damages will be assessed if OHCA determines such
failure is the fault of the CE, including the CE's subcontractors and/or
consultants, and is not materially caused or contributed to by OHCA or its
agents.
(f)
Other
provisions. The CE shall be responsible for all reasonable expenses
related to the direct operation of the Sooner Select Medical program, including
but not limited to attorney fees, cost of preliminary or other audits of the CE
and expenses related to the management of any office or other assets of the
CE.
Notes
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