Library: Policy

317:55-5-10. Non-compliance of contracted entities

Revised 7-1-23

(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

(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.

(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.

(3) OHCA may apply one (1) or more of the following non-compliance remedies for each item of material non-compliance 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;

(D) Require forfeiture of all or part of the CE's performance bond or other substitute; or

(E) Terminate the Contract in accordance with OAC 317:55-5-14.

(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 SoonerSelect 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 SoonerSelect 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.