Library: Policy

317:55-5-11. Non-compliance of dental benefit managers

Revised 7-1-23

In accordance with 42 C.F.R. ' 438.604, the MCO or DBM will submit documentation for which OHCA will base its certification to CMS that the MCO or DBM has complied with requirements for availability and accessibility of services, including health professional shortage areas and adequacy of the MCO's or DBM's network, as set forth in 42 C.F.R. '' 438.206, 438.14 and 438.68.

(a) Failure to comply. If the DBM 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 DBM Contract, OHCA will notify the DBM 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 DBM 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 DBM's plan to address or cure the deficiency; and

(D) If the DBM disagrees with OHCA's findings, the DBM shall provide its reasons for disagreeing with OHCA's findings.

(2) The DBM's proposed cure of a non-material deficiency is subject to the approval of OHCA.

(3) The DBM'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 DBM 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 DBM 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 DBM may be required to submit a written CAP under the signature of the DBM'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 OHCA's request for a CAP.

(ii) Be reviewed and approved by 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 DBM'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 administrative remedies found in (f) of this Section for each item of material non-compliance listed in (c)(2) of this Section.

(d) Liquidated damages. OHCA may impose actual, consequential, and liquidated damages in accordance with 23 O.S. § 21, resulting from the DBM'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 DBM, including the CE's subcontractors and/or consultants, and is not materially caused or contributed to by OHCA or its agents.

(e) Administrative remedies. OHCA may impose the following remedies:

(1) Conduct accelerated monitoring of the DBM;

(2) Require additional, more detailed, financial and/or programmatic reports to be submitted by the DBM;

(3) Decline to renew or extend the Contract;

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

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

(6) Grant Enrollee(s) the right to terminate enrollment without cause and notifying the affected Enrollees of their right to disenroll;

(7) Suspend all new enrollment of Enrollee(s), including default enrollment, after the date OHCA notifies the CE or DBM of a determination of a violation of any requirement;

(8) Suspend or recoup capitation payments to the DBM 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; and

(9) Appoint temporary management in accordance with 42 C.F.R. § 438.706. The DBM shall comply with the contractual requirements found in the Contract at Section 1.26.3.5 "Imposition of Liquidated Damages".

(f) Other provisions. The DBM shall be responsible for all reasonable expenses related to the direct operation of the SoonerSelect Dental program, including but not limited to attorney fees, cost of preliminary or other audits of the DBM and expenses related to the management of any office or other assets of the DBM.