[Federal Register Volume 66, Number 239 (Wednesday, December 12, 2001)]
[Proposed Rules]
[Pages 64160-64173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30529]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 239 / Wednesday, December 12, 2001 / 
Proposed Rules  

[[Page 64160]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 890

RIN 3206-AD76


Debarments and Suspensions of Health Care Providers From the 
Federal Employees Health Benefits Program

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is proposing to amend 
its regulations on administrative sanctions of health care providers 
participating in the Federal Employees Health Benefits Program (FEHBP). 
The proposed regulations implement the suspension and debarment 
provisions of section 2 of the Federal Employees Health Care Protection 
Act of 1998 (Pub. L. 105-266). This statute modified both the 
substantive and procedural requirements for FEHBP administrative 
sanctions. These regulations supercede interim regulations issued in 
1989 to implement the earlier sanctions legislation that was amended by 
Pub. L. 105-266. They will promote quicker, more uniform decisionmaking 
for suspensions and debarments, and will enhance protection against 
unfit providers for both the FEHBP and the individuals it covers.

DATES: Submit comments on or before February 11, 2002.

ADDRESSES: Send or deliver written comments to David Cope, U.S. Office 
of Personnel Management, 1900 E Street NW., Room 6400, Washington, DC 
20415, or submit comments electronically to [email protected].

FOR FURTHER INFORMATION CONTACT: David Cope, 202-606-2851, FAX 202-606-
2153.

SUPPLEMENTARY INFORMATION:   

Background

    A 1991 GAO report (GGD-91-95, ``Fraud and Abuse: Stronger Controls 
Needed in Federal Employees Health Benefits Program'') concluded that 
OPM needed to be more aggressive in dealing with health care provider 
integrity problems. Among other steps, GAO recommended that the agency 
take action to implement effective administrative sanctions 
authorities.
    OPM recognized that an appropriate administrative sanctions program 
for FEHBP would necessitate legislative action to replace earlier 
sanctions legislation that had proved to be costly and ultimately 
unworkable. As an interim measure, in May 1993, OPM adopted the 
Governmentwide Nonprocurement Suspension and Debarment Common Rule 
(common rule), a standardized regulatory program that permitted the 
agency to effectuate sanctions issued by other agencies. Under this 
authority, OPM has debarred from the FEHBP over 18,700 health care 
providers who had previously been excluded from the Medicare, Medicaid, 
and other programs under the Social Security Act by the Office of 
Inspector General (OIG) of the Department of Health and Human Services. 
The OPM common rule regulations appear at 5 CFR part 970.
    While operating under the common rule, OPM developed legislative 
proposals for health care provider sanctions that were comprehensive 
(i.e., offering a full range of sanctions authorities) and procedurally 
efficient, while affording appropriate due process protections to the 
subjects of sanctions action. Bills containing these authorities were 
introduced in both the 104th and 105th Congresses, and a version that 
closely paralleled the OPM proposals was enacted as part of Pub. L. 
105-266 on October 19, 1998.
    This proposed rule is the first of two planned regulatory issuances 
that together will implement all of the Pub. L. 105-266 sanctions 
authorities. We are addressing debarments and suspensions in the first 
issuance because we expect them to constitute the majority of our 
sanctions workload. OPM is currently developing a separate regulatory 
issuance to address the financial sanctions authorities enacted by Pub. 
L. 105-266, including financial assessments and civil monetary 
penalties.

Purposes of Administrative Sanctions

    Administrative sanctions are civil remedies that agencies impose 
under their own authority to protect their programs from transactions 
with untrustworthy individuals or entities and to recover program funds 
paid improperly or fraudulently. Because administrative sanctions are 
not considered to be ``punitive,'' they can, and frequently are, 
imposed in addition to other remedies, such as criminal or civil 
judicial action.
    Virtually every federal agency has some form of sanctions 
authority. The most common types of administrative sanctions are:
     Debarment--removing an individual or entity from 
participation in a program for a designated period of time, after a due 
process proceeding;
     Suspension--removing an individual or entity from program 
participation on an immediate basis, without prior due process, because 
he currently poses a threat to the public interest; and
     Financial sanctions--imposing double or treble damages, 
fines, and monetary assessments or penalties, based on a due process 
proceeding.

Administrative Sanctions of Health Care Providers

    Various studies by the GAO, the Office of the Inspector General 
(OIG) of the Department of Health and Human Services, and health 
insurance industry groups have placed the overall rate of provider 
fraud in the American health care system within a range of 6 to 12 
percent of the total dollar value of claims. The OIG of the Office of 
Personnel Management has recognized for many years that fraud by health 
care providers poses a significant problem for both the financial 
integrity of the Federal Employees Health Benefits Program (FEHBP) and 
the health care interests of the persons who obtain coverage through 
it.
    One of the difficulties in pursuing provider-related fraud within 
FEHBP has been the inadequacy of the legal remedies available to 
address the problem, prior to the passage of Pub. L. 105-266. Although 
the false claims, false statements, and mail fraud statutes are 
nominally applicable to many instances of health care fraud, in 
practice they are seldom invoked because of the high burden of proof in 
criminal cases and the fact that the dollar amounts in question 
typically do not reach prosecutorial thresholds. In fact, most 
instances of provider fraud

[[Page 64161]]

are not amenable to being handled appropriately within the federal 
judicial system. However, the Pub. L. 105-266 administrative sanctions 
authorities, as implemented by the proposed regulation, are 
specifically designed to address fraudulent or improper conduct by 
health care providers quickly, efficiently, and cost-effectively.

Transition to Statutory Debarment System

    Adoption of this proposed regulation will have the following effect 
on existing OPM regulations:
     Upon issuance, this rule will replace the 1989 interim 
final version of 5 CFR part 890, subpart J, which reflected the 
legislation superseded by Pub. L. 105--266.
     As of the date this regulation goes into effect, OPM will 
discontinue issuing new debarments under the common rule (5 CFR part 
970) in favor of actions under 5 CFR part 890, subpart J. Common rule 
debarments already in effect will remain so until the exclusions on 
which they are based are terminated by the originating agency.

Administrative Sanctions Will Not Affect FEHBP Operations

    The proposed regulation fully reflects the policy concepts 
underlying OPM's operation of the FEHBP. The principal objectives of 
administrative sanctions activities will be to protect the health and 
safety of covered persons and the integrity of the FEHBP by excluding 
providers whose conduct indicates that they may pose a threat to either 
of those interests. Other than terminating the rights of certain 
providers to receive payment of FEHBP funds, the regulations will not 
affect the manner or conditions through which health care services are 
delivered to FEHBP-covered persons, or any other aspect of the 
provider--patient relationship. There will be no effect on the ability 
of FEHBP subscribers to select health insurance coverage appropriate to 
their circumstances. Finally, sanctions imposed under these regulations 
will apply only to health care providers, and will not affect the 
contractual relationship between OPM and the FEHBP carriers. As a 
related matter, OPM is committed to coordinating with other agencies to 
combat health care fraud and abuse. The proposed rule attempts wherever 
possible to maintain consistency and cooperation between FEHBP 
sanctions and the Medicare administrative sanctions program operated by 
the OIG, Department of Health and Human Services.

Mandatory and Permissive Debarment

    Pub. L. 105-266 established two broad categories of debarments, 
distinguished by their underlying bases and the debarring official's 
range of discretion in imposing the sanction. Mandatory debarment 
authorities require OPM to debar providers who, in prior due process 
proceedings, were found to have committed certain types of violations. 
This concept has been part of the Medicare administrative sanctions 
statute for many years. As detailed in Sec. 890.1004 of the proposed 
rule, grounds for mandatory debarment include conviction of crimes 
involving (1) fraud or other financial misconduct, (2) abuse of 
patients, (3) abuse of controlled substances, or (4) obstruction of an 
investigation of those crimes. Mandatory debarment also applies to 
providers who have been debarred, suspended, or excluded by another 
Federal agency.
    Permissive debarment authorities cover violations for which the 
debarring official may exercise discretion to impose or not impose 
debarment, according to the facts of each case. Pub. L. 105-266 
established 12 separate grounds for permissive debarment. Section 1011 
of the proposed rule arranges these grounds into four broad categories. 
The categories are (1) actions involving revocation, suspension, 
nonrenewal, or surrender of health care licensure; (2) ownership or 
control of an entity by a debarred provider, or ownership/control by a 
provider of a debarred entity; (3) false, deceptive, or wrongful claims 
practices; and (4) refusal to provide information requested by OPM or a 
FEHBP carrier to determine the validity or amount of a claim.

Length of Debarments

    Pub. L. 105-266 and the proposed rule establish a minimum 3-year 
period of debarment for mandatory debarments based on convictions. The 
proposed rule also adopts the Medicare practice of using specific 
aggravating and mitigating factors to determine whether a period of 
debarment longer than the minimum period should be imposed (see 
Sec. 890.1008). Mandatory debarments based on another agency's sanction 
will always be for an indefinite period running concurrently with the 
sanction on which they are based. Therefore, they are not subject to a 
specified minimum period or to extension because of aggravating 
factors.
    Unlike mandatory debarments, Pub. L. 105-266 does not specify 
statutory minimum periods for permissive debarments. However, to foster 
economical and consistent decisionmaking, Secs. 890.1016-890.1021 of 
the proposed rule recommend periods for permissive debarments that may 
be increased or decreased, based on factors specified in the statute. 
In the interests of sound administration, Sec. 890.1015 establishes an 
overall minimum period of not less than one year for any permissive 
debarment.

Procedures and Appeals

    Pub. L. 105-266, and these proposed regulations, require OPM to 
implement the findings of prior criminal, civil, or administrative due 
process proceedings with regard to all categories of mandatory 
debarments. For permissive debarments, the debarring official may, but 
is not required to, accept the relevant findings of a prior 
adjudication at the Federal, State, or local level as satisfying the 
requisite factual basis for debarment (e.g., a licensure revocation or 
suspension by a Federal regulatory board).
    The subject of a proposed mandatory debarment will receive a 30-day 
advance notice of the impending debarment and may challenge 
(``contest'') OPM's action by submitting information and arguments on 
their behalf (see Sec. 890.1006). If OPM proposes a period of debarment 
exceeding the 3-year statutory minimum, the provider has the further 
right to make a personal appearance before the debarring official. The 
proposed mandatory debarment can be withdrawn only if the basis for it 
no longer exists, such as a conviction being reversed on appeal, or if 
the proposed subject is incorrectly identified. No further 
administrative appeal or reconsideration is available. Mandatory 
debarments become effective when implemented by OPM and remain in force 
during all judicial appeals. Sections 890.1009 and 890.1010 of the 
proposed rule address these procedures.
    Permissive debarments (other than those based on prior 
adjudications) inherently require more extensive adjudication of 
individual cases than mandatory debarments. However, Pub. L. 105-266 
provided an effective method of administering them by establishing 
specific factors that OPM must consider when deciding whether to impose 
a permissive debarment. These are enumerated in Sec. 890.1013 of the 
proposed rule. A provider proposed for debarment on permissive grounds 
that have been previously adjudicated will receive advance written 
notice and an opportunity to contest the proposed debarment on 
essentially the same basis as an individual proposed for debarment on 
mandatory grounds. These procedures are reflected in

[[Page 64162]]

Sec. Sec. 890.1022-890.1026 of the proposed rule.
    When the grounds for a permissive debarment have not previously 
been determined through a due process adjudication, Pub. L. 105-266 
requires that OPM provide an opportunity for a due process hearing to 
establish the underlying facts. If the debarring official determines 
that the administrative record contains a bona fide dispute about facts 
material to the debarment, he must request a fact-finding hearing 
before imposing debarment. If the debarring official decides that there 
is no genuine and material factual dispute on the record, he may issue 
a decision without a hearing. Except for debarments based on refusal to 
provide requested information or false/wrongful claims, the debarment 
will remain in effect while the hearing and associated procedures are 
held. The presiding official's findings (whether the hearing is held 
before or after debarment) are binding on the debarring official. No 
further administrative appeals are available after the debarring 
official's final decision. Sections 890.1027-890.1029 of the proposed 
rule detail the procedural rights of a provider subject to permissive 
debarment on previously unadjudicated grounds.

Suspension

    Suspension is a temporary measure, equivalent in its effect to 
debarment, i.e., FEHBP funds may not be paid for items or services 
furnished while a provider is suspended. However, in contrast to a 
debarment, suspension can be imposed without prior due process, pending 
the completion of legal or administrative proceedings. Although Pub. L. 
105-266 does not address suspension per se, it does confer discretion 
to make debarments effective immediately, if necessary to protect the 
health and safety of covered individuals. To exercise this authority 
systematically, we are proposing in Secs. 890.1030-890.1041 to treat 
suspension as a separate form of sanction. This is also consistent with 
governmentwide practice under the Uniform Suspension and Debarment 
Common Rule. Section 890.1031 outlines the bases for taking a 
suspension action. To suspend a provider, OPM must have reasonable 
cause to believe that he has committed a violation warranting debarment 
and adequate evidence that the health and safety of covered 
individuals, or the integrity of FEHBP funds, would be at risk if a 
suspension were not issued immediately.
    As provided in Sec. 890.1032, the initial period of a suspension 
may not exceed 12 months. The Department of Justice or a Federal or 
local prosecutor may request that the suspension be extended for an 
additional six months. When formal legal or administrative proceedings 
are initiated during the period of suspension, it may continue 
indefinitely, pending their completion. If a suspended provider is 
subsequently debarred, Sec. 890.1034 authorizes the debarring official 
to account for the period of suspension in determining the period of 
debarment.
    Sections 890.1035-890.1041 provide a reconsideration procedure for 
suspensions, including the opportunity to make a personal appearance 
before the suspending official and the right to request a fact-finding 
proceeding before a presiding official when there is a bona fide 
dispute regarding facts material to the suspension.

Waivers and Exceptions

    The proposed rule contains a number of waivers and exceptions that 
protect the financial and health care interests of persons who obtain 
their health insurance coverage through the FEHBP. These include 
provisions that (1) claims will be paid for covered persons who obtain 
services from a debarred provider without knowledge of his debarment 
[Sec. 890.1045]; (2) services furnished by a debarred provider in an 
emergency situation will be paid under each carrier's emergency 
coverage provisions [Sec. 890.1046]; (3) inpatients who were admitted 
to a debarred institution before its debarment will have continued 
coverage for inpatient institutional services until they are discharged 
or transferred, unless OPM determines that their health and safety 
require an earlier termination of payments [Sec. 890.1047]; (4) 
providers who are the sole provider of health care services or the sole 
source of essential specialized services in a community may apply for a 
limited waiver of debarment to continue their participation in FEHBP 
[Sec. 890.1048]; and (5) covered persons may apply for individual 
exceptions to permit continued payment of FEHBP funds for services they 
receive from a debarred provider if equivalent services are not 
reasonably available to them from a nondebarred provider or if 
interrupting an ongoing course of treatment by the debarred provider 
would create a risk to their health [Sec. 890.1050].

Reinstatement

    The proposed rule recognizes two types of reinstatement. First, 
Sec. 890.1051 implements the provisions of Pub. L. 105-266 authorizing 
OPM to establish regulations under which debarred providers may be 
reinstated after expiration of the term of their debarment. The statute 
makes all such reinstatements permissive on OPM's part and requires the 
provider to prove that they meet the criteria of Sec. 890.1051(c). The 
proposed rule requires the debarred provider to apply for 
reinstatement. The effective date of a provider's reinstatement is to 
be established by OPM, but it may not occur before the period of 
debarment expires.
    The second type of reinstatement, addressed in Sec. 890.1052, 
applies when administrative or legal action occurring after the 
debarment has the effect of retroactively invalidating the basis for 
the debarment. This will occur, for example, where a conviction or 
licensure action that was the grounds for our debarment is overturned 
on appeal. In this case, the provider may qualify for reinstatement 
before their period of debarment expires. Also included in this 
category are cases where a provider excluded by another agency is 
reinstated by that agency, thus removing the basis for debarment. In 
all of these situations, OPM will reinstate the provider without an 
application being filed. The effective date of these ``automatic'' 
reinstatements will reflect the date of the event forming the basis for 
the reinstatement. Therefore, if an appeals court's reversal of a 
criminal conviction or licensure revocation has the effect of 
invalidating the action from its inception, we will normally make the 
reinstatement retroactive to the beginning date of the debarment. 
However, in the case of a termination of a sanction imposed by another 
Federal agency, the effective date of the automatic reinstatement will 
be the date of the other agency's reinstatement. The table in 
Sec. 890.1053 provides an additional reference aid on these issues.

Regulatory Flexibility Act

    I certify that this proposed regulation will not have a significant 
economic impact on a substantial number of small entities.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon.


[[Page 64163]]


    Office of Personnel Management.
Kay Coles James,
Director.
    Accordingly, OPM proposes to amend part 890 of title 5, Code of 
Federal Regulations as follows:

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

    1. The authority citation for Part 890 continues to read as 
follows:

    Authority: 5 U.S.C. 8913; Sec. 890.803 also issued under 50 
U.S.C. 403(p), 22 U.S.C. 4069c and 4069c-1; subpart L also issued 
under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; 
Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246(b) 
and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 
105-261, 112 Stat. 2061.
    2. Subpart J of part 890 is revised to read as follows:

Subpart J--Administrative Sanctions Imposed Against Health Care 
Providers

Sec.

General Provisions and Definitions

890.1001  What are the scope and purpose of these regulations?
890.1002  How is this subpart written and organized?
890.1003  What terms in this subpart have specialized meanings?

Mandatory Debarments

890.1004  What are the grounds for mandatory debarments?
890.1005  What is OPM's time limit for initiating a mandatory 
debarment?
890.1006  How will OPM notify me of my proposed debarment?
890.1007  What is the minimum period of debarment for mandatory 
debarments?
890.1008  When can the period of a mandatory debarment based on a 
conviction exceed the statutory minimum period?
890.1009  How may I contest OPM's proposal to debar me under a 
mandatory debarment authority?
890.1010  How will the debarring official decide my contest?

Permissive Debarments

890.1011  What are the grounds for permissive debarments?
890.1012  What are OPM's time limits for initiating a permissive 
debarment?
890.1013  How will OPM decide whether to propose a permissive 
debarment?
890.1014  How will OPM notify me of my proposed debarment under a 
permissive debarment authority?
890.1015  What are the minimum and maximum periods for permissive 
debarments?
890.1016  What aggravating and mitigating factors will OPM consider 
in making a final determination of the period of my debarment?
890.1017  How will OPM determine the period of my debarment based on 
revocation or suspension of my professional licensure?
890.1018  How will OPM determine the period of debarment for an 
entity owned or controlled by a sanctioned person?
890.1019  How will OPM determine the period of my debarment based on 
my ownership or control of a sanctioned entity?
890.1020  How will OPM determine the period of my debarment based on 
false, wrongful, or deceptive claims?
890.1021  How will OPM determine the period of my debarment based on 
my failure to provide information needed to resolve claims?
890.1022  How may I contest OPM's proposal to debar me under a 
permissive debarment authority?
890.1023  What information will the debarring official consider as 
part of my contest?
890.1024  What standards and burdens of proof apply to my contest?
890.1025  When can the debarring official decide my contest without 
an additional fact-finding proceeding?
890.1026  How will the debarring official resolve my contest if a 
fact-finding proceeding is not required?
890.1027  When must the debarring official request a fact-finding 
proceeding before deciding my contest?
890.1028  How will the presiding official conduct the fact-finding 
proceeding?
890.1029  How will the debarring official decide my contest after 
the fact-finding proceeding?

Suspension

890.1030  What is a suspension?
890.1031  Under what circumstances may OPM suspend me?
890.1032  How long will my suspension last?
890.1033  How will OPM notify me of a suspension?
890.1034  If I am debarred after being suspended, will the 
suspension period count as part of the debarment period?
890.1035  How may I contest OPM's decision to suspend me?
890.1036  What information will the suspending official consider as 
part of my contest?
890.1037  When can the suspending official decide my contest without 
arranging an additional fact-finding proceeding?
890.1038  How will the suspending official resolve my contest if he 
determines that a fact-finding proceeding is not required?
890.1039  Under what circumstances must the suspending official 
arrange a fact-finding proceeding before deciding my contest?
890.1040  How will the presiding official conduct the fact-finding 
proceeding?
890.1041  How will the suspending official decide my contest after 
the fact-finding proceeding is completed?

Effect of Debarment

890.1042  When will my debarment go into effect?
890.1043  How does my debarment affect me?

Notifying Outside Parties About Debarment and Suspension Actions

890.1044  What entities will OPM notify of my debarment or 
suspension?
890.1045  How will OPM inform persons covered by FEHBP about my 
debarment or suspension?

Exceptions to the Effect of Debarments

890.1046  How does my debarment affect payments to me for services I 
furnish in emergency situations?
890.1047  What special rules apply to me as an institutional 
provider?
890.1048  How may I obtain a waiver of my debarment if I am the sole 
source of health care services in a community?

Special Exceptions To Protect Covered Persons

890.1049  How will FEHBP carriers handle claims for items or 
services furnished after a provider's debarment?
890.1050  How may an FEHBP covered individual request an exception 
to a provider's debarment?

Reinstatement

890.1051  How may I be reinstated when my period of debarment 
expires?
890.1052  Under what circumstances will OPM reinstate me without my 
filing an application?
890.1053  Table of procedures and effective dates for 
reinstatements.
890.1054  What agencies and entities will OPM notify about my 
reinstatement?
890.1055  How may I contest OPM's decision to deny my reinstatement 
application?

Civil Monetary Penalties and Financial Assessments [Reserved]

Subpart J--Administrative Sanctions Imposed Against Health Care 
Providers

General Provisions and Definitions


Sec. 890.1001  What are the scope and purpose of these regulations?

    (a) Scope. This subpart implements section 8902a of title 5, United 
States Code, as amended by Public Law 105-266 (October 19, 1998). It 
establishes a system of administrative sanctions that OPM may, or in 
some cases, must apply to health care providers who have committed 
certain violations. The sanctions include debarment, suspension, civil 
monetary penalties, and financial assessments.
    (b) Purpose. OPM will use the authorities in this subpart to 
protect the health and safety of the persons who obtain their health 
insurance coverage through the FEHBP and the financial and programmatic 
integrity of FEHBP transactions.


Sec. 890.1002  How is this subpart written and organized?

    (a) Plain language format. We wrote this subpart in a question-and-
answer

[[Page 64164]]

format to make it easier for the public and health care providers to 
use. In this format, the questions comprising most section headings are 
integral parts of the respective sections and subsections, because the 
reader cannot interpret the answers without the context of the 
questions. Therefore, each question and answer are a unified whole with 
regulatory effect. The tables contained in this subpart also have 
regulatory effect.
    (b) Words connoting OPM and health care providers. Unless otherwise 
indicated, the words ``you,'' ``me,'' and ``I'' connote a health care 
provider(s) and the word ``we'' connotes the Office of Personnel 
Management.


Sec. 890.1003  What terms in this subpart have specialized meanings?

    The following terms have the meanings shown throughout this 
subpart:
    (a) Carrier means an entity responsible for operating a health 
benefits plan described by section 8903 or section 8903a of title 5, 
United States Code.
    (b) Community means a geographically-defined area in which you 
furnish health care services or supplies and for which you may request 
a limited waiver of debarment in accordance with this subpart. Defined 
service area has the same meaning as community.
    (c) Contest means your request for the debarring or suspending 
official to reconsider your proposed sanction, its length, or its 
amount.
    (d) Control interest means that:
    (1) You have a direct and/or indirect ownership interest of 5 
percent or more in an entity;
    (2) You own a whole or part interest in a mortgage, deed of trust, 
note, or other obligation secured by the entity, its property, or its 
assets, equating to a direct interest of 5 percent or more of the total 
property or assets of the entity;
    (3) You are an officer or director of the entity, if it is 
organized as a corporation;
    (4) You are a partner in the entity, if it is organized as a 
partnership;
    (5) You are a managing employee of the entity, including but not 
limited to a general manager, business manager, administrator, or other 
employee who exercises, either directly or through other employees, 
operational or managerial control over the activities of the entity or 
a portion of it;
    (6) You have substantive control over an entity or a critical 
influence over the activities of the entity or some portion of it, 
whether or not you are employed by the entity; or
    (7) You act as an agent of the entity.
    (e) Conviction or convicted means the following, without regard to 
the pendency or outcome of an appeal (other than a judgment of 
acquittal based on innocence) or request for relief:
    (1) A Federal, State, or local court has entered a judgment of 
conviction against you for a felony or misdemeanor offense;
    (2) A Federal, State, or local court has found you guilty of a 
felony or misdemeanor offense;
    (3) A Federal, State, or local court has accepted your plea of 
guilty, nolo contendere, or the equivalent to a felony or misdemeanor 
offense; or
    (4) You have entered a first offender, diversion, or other program 
in which a judgment of conviction for a felony or misdemeanor offense 
has been withheld.
    (f) Covered individual means an employee, annuitant, family member, 
or former spouse covered by a health benefits plan described by section 
8903 or section 8903a of title 5, United States Code, or an individual 
eligible under section 8905(d) of title 5, United States Code.
    (g) Debarment means a decision by the debarring official to 
prohibit payment of FEHBP funds to you, based on section 8902a (b), 
(c), or (d) of title 5, United States Code and this subpart.
    (h) Debarring official means an OPM employee authorized to issue 
debarments under this subpart.
    (i) FEHBP means the Federal Employees Health Benefits Program.
    (j) Health care services or supplies means health care or services 
and supplies such as diagnosis and treatment; drugs and biologicals; 
supplies, appliances and equipment; and hospitals or other 
institutional entities that furnish supplies and services.
    (k) Incarceration means imprisonment, or any type of confinement 
with or without supervised release, including but not limited to home 
detention, community confinement, house arrest, or similar 
arrangements.
    (l) Limited waiver means an approval by the debarring official of 
your request to receive payments of FEHBP funds for items or services 
rendered in a defined geographical area, notwithstanding your 
debarment, because you are the sole community provider or sole source 
of essential specialized services in a community.
    (m) Mandatory debarment means a debarment based on section 8902a(b) 
of title 5, United States Code. OPM must debar providers who have 
committed violations listed in that section.
    (n) Office or OPM means the United States Office of Personnel 
Management or the component thereof responsible for conducting the 
administrative sanctions program described by this subpart.
    (o) Permissive debarment means a debarment based on sections 
8902a(c) or (d) of title 5, United States Code. The debarring official 
has discretionary authority to debar providers who have committed 
violations listed in those sections.
    (p) Provider or provider of health care services or supplies means 
a physician, hospital, or other individual or entity that, directly or 
indirectly, furnishes health care services or supplies.
    (q) Reinstatement means a decision by OPM to terminate your 
debarment and restore your eligibility to receive payment of FEHBP 
funds.
    (r) Sanction or administrative sanction means any administrative 
action authorized by section 8902a of Title 5, United States Code, or 
this subpart, including debarment, suspension, civil monetary 
penalties, and financial assessments.
    (s) Should know or should have known means that you act(ed) in 
deliberate ignorance or reckless disregard of the truth or falsity of 
information. For the purpose of imposing a sanction when the grounds 
incorporate a ``should know'' standard, no proof of specific intent to 
defraud is required to determine that you have committed an actionable 
violation.
    (t) Sole community provider means that you are the only source of 
primary medical care within a defined service area.
    (u) Sole source of essential specialized services in a community 
means that you are the only source of specialized health care items or 
services in a defined service area and items or services furnished by a 
non-specialist cannot be substituted without jeopardizing the health or 
safety of covered individuals.
    (v) Suspending official means an OPM employee authorized to issue 
suspensions under this subpart.

Mandatory Debarments


Sec. 890.1004  What are the grounds for mandatory debarments?

    OPM must debar you if any of the factors listed in paragraph (a) or 
(b) of this section applies to you.
    (a) Conviction for criminal offenses. You have been convicted under 
Federal or State law of a criminal offense relating to:
    (1) Fraud, corruption, breach of fiduciary responsibility, or other

[[Page 64165]]

financial misconduct in connection with the delivery of a health care 
service or supply;
    (2) Neglect or abuse of patients in connection with the delivery of 
a health care service or supply;
    (3) Interference with or obstruction of an investigation or 
prosecution of a criminal offense described in paragraph (a)(1) or 
(a)(2) of this section; or
    (4) Unlawful manufacture, distribution, prescription, or dispensing 
of a controlled substance.
    (b) Administrative sanction currently in effect. You are currently 
debarred, suspended, or otherwise excluded from any Federal procurement 
or nonprocurement activity, within the meaning of section 2455 of the 
Federal Acquisition Streamlining Act of 1994.
    (c) Direct involvement with an OPM program unnecessary. Your 
conviction of an offense listed in paragraph (a) of this section or 
your receiving a sanction described in paragraph (b) of this section 
need not have involved an FEHBP covered individual or transaction, or 
any other OPM program, in order to serve as a basis for mandatory 
debarment.


Sec. 890.1005  What is OPM's time limit for initiating a mandatory 
debarment?

    OPM must issue you written notice of a proposed mandatory debarment 
within 6 years of the event that forms the basis for the debarment. If 
the basis for the proposed debarment is a conviction, the notice must 
be issued within 6 years of the date of the conviction. If the basis is 
another agency's suspension, debarment, or exclusion, the OPM notice 
must be issued within 6 years of the effective date of the other 
agency's action.


Sec. 890.1006  How will OPM notify me of my proposed debarment?

    (a) Written notice. We will inform you of your proposed debarment 
by written notice sent not less than 30 days prior to the proposed 
effective date.
    (b) Contents of the notice. The notice will contain the following 
items of information:
    (1) Effective date of your debarment;
    (2) Minimum length of your debarment;
    (3) Basis for your debarment;
    (4) The provisions of law and regulation authorizing OPM to debar 
you;
    (5) Effect of the debarment;
    (6) Your right to contest the debarment to the debarring official;
    (7) Your right to request that we reduce the period of your 
debarment, if it exceeds the minimum required by law or this subpart; 
and
    (8) The procedures you must follow to apply for reinstatement at 
the end of your period of debarment, or to seek a waiver of the 
debarment on the basis that you are the sole health care provider in a 
community or the sole source of essential specialized services.
    (c) Methods of sending notice. We will send the notice of proposed 
debarment to you by one of the following means:
    (1) First class mail or, at our option, express delivery service, 
to your last known street or post office address;
    (2) Facsimile transmission (fax), if you have furnished us a 
current fax number; or
    (3) E-mail, if you have furnished us a current e-mail address.
    (d) Delivery to attorney, agent, or representatives.
    (1) If we are proposing to debar you as an individual, we may send 
the notice of proposed debarment to you or to any other person you have 
designated to act on your behalf during debarment proceedings.
    (2) If we are proposing to debar an entity, we may send the notice 
of proposed debarment to any owner, partner, director, officer, 
registered agent for service of process, attorney, or managing 
employee.
    (e) Presumed timeframes for receipt of notice. When we compute 
deadlines associated with your receipt of notices we send to you, we 
will apply the timeframes specified in paragraphs (e)(1) through (e)(3) 
of this section.
    (1) We will consider any notice we send by first class mail or 
express delivery service to your last known street or post office 
address as having been received by you not later than 5 days after we 
send it.
    (2) We will consider any notice we send by facsimile (fax) 
transmission to a number that you provided to us as having been 
received by you when we transmit it.
    (3) We will consider any notice we send by e-mail to an e-mail 
address that you furnished to us as having been received by you when we 
transmit it to your email service provider.
    (f) Procedures if notice cannot be delivered.
    (1) If we learn that a notice we sent to you was undeliverable as 
addressed or routed, we will make reasonable efforts to obtain a 
current and accurate address or to use alternative methods of 
transmitting the notice to you.
    (2) If we are unable to deliver a notice to you after reasonable 
followup efforts, we will presume that you received it 5 days after the 
date of our final attempt to send it to you.


Sec. 890.1007  What is the minimum period of debarment for mandatory 
debarments?

    (a) Debarment based on a conviction. The statutory minimum period 
of debarment for a mandatory debarment based on a conviction is 3 
years.
    (b) Debarment based on another agency's action. A mandatory 
debarment based on another Federal agency's debarment, suspension, or 
exclusion remains in effect until the originating agency terminates its 
sanction.


Sec. 890.1008  When can the period of a mandatory debarment based on a 
conviction exceed the statutory minimum period?

    (a) Aggravating factors. OPM may debar you for longer than the 3-
year minimum period if aggravating factors are associated with the 
basis for your debarment. The factors we consider to be aggravating are 
as follows:
    (1) The FEHBP incurred a financial loss as the result of the acts 
underlying your conviction, or similar acts that were not adjudicated. 
In determining whether a financial loss occurred, we will not consider 
any amounts of restitution you may have paid;
    (2) The sentence imposed by the court included incarceration;
    (3) The underlying offense(s), or similar acts not adjudicated, 
occurred repeatedly over a period of time, or there is evidence that 
you planned the offense(s) in advance;
    (4) You have a prior record of criminal, civil, or administrative 
adjudication of related offenses or similar acts; or
    (5) The actions underlying your conviction, or similar acts that 
were not adjudicated, adversely affected the physical, mental, or 
financial well-being of one or more covered individuals or other 
persons.
    (b) Mitigating factors. If the aggravating factors justify 
debarring you for longer than 3 years, we will also consider whether 
mitigating factors may justify reducing your debarment period to not 
less than 3 years. The only factors that we will consider to be 
mitigating are as follows:
    (1) The conviction(s) on which your debarment is based consist 
entirely or primarily of misdemeanor offenses;
    (2) Court records, including associated sentencing reports, contain 
an official determination that you had a physical, mental, or emotional 
condition before or during the commission of the offenses underlying 
the conviction that reduced your level of culpability; or
    (3) Your cooperation with Federal and/or State investigative 
officials

[[Page 64166]]

resulted in criminal convictions, civil recoveries, or administrative 
actions against other individuals, or served as the basis for 
identifying program weaknesses.
    (c) Maximum period of debarment. There is no limit on the maximum 
period of a mandatory debarment based on a conviction.


Sec. 890.1009  How may I contest OPM's proposal to debar me under a 
mandatory debarment authority?

    (a) Contesting the debarment. Within 30 days after receiving 
written notice that we intend to debar you under a mandatory debarment 
authority, you may submit information, documents, and written arguments 
in opposition to the proposed debarment. Our notice will give you 
specific information about where and how to submit this material. If 
you do not file a timely contest, your debarment will become effective 
as stated in the notice, without further action by OPM.
    (b) Requesting a reduction of the debarment period. If we propose 
to debar you for a period longer than the 3-year minimum required by 
Sec. 890.1007(a), you may request us to reduce the debarment period to 
not less than 3 years. You may make this request even if you are not 
contesting the debarment itself. In addition to providing written 
material, you may appear before the debarring official personally or 
through a representative to present oral arguments in support of your 
contest. Our notice will give you specific information about arranging 
an in-person presentation.


Sec. 890.1010  How will the debarring official decide my contest?

    (a) Prior adjudication is dispositive. Evidence indicating that you 
were the subject of a prior adjudication of a type described in 
Sec. 890.1004 fully satisfies the standard of proof for a mandatory 
debarment.
    (b) Debarring official's decision. The debarring official will 
issue a written decision, based on all the information in the 
administrative record, within 30 days after the administrative record 
is complete. This decision period may be extended for good cause.
    (c) No further administrative proceedings. The debarring official's 
decisions regarding mandatory debarment and the period of your 
debarment are final and are not subject to further administrative 
review.

Permissive Debarments


Sec. 890.1011  What are the grounds for permissive debarments?

    (a) Licensure actions. We may debar you if either paragraph (a)(1) 
or (a)(2) of this section applies to you. We may take this action even 
if you retain current and valid professional licensure in another 
State(s).
    (1) A State licensing authority revokes, suspends, restricts, or 
declines to renew your license to provide health care items or services 
for reasons related to your professional competence, professional 
performance, or financial integrity; or
    (2) You surrender your license to provide health care items or 
services while a formal disciplinary proceeding concerning your 
professional competence, professional performance, or your financial 
integrity is pending before a State licensing authority.
    (b) Ownership or control interests.
    (1) We may debar a health care provider that is an entity because a 
person who holds an ownership or control interest of 5 percent or more 
in the entity has been:
    (i) Convicted of a criminal offense listed in Sec. 890.1003(a) as a 
basis for debarment;
    (ii) Debarred under this subpart from participating in the FEHBP; 
or
    (iii) Assessed with a civil monetary penalty under section 8902a of 
title 5, United States Code and this subpart.
    (2) We may debar you as an individual if both paragraphs (b)(2)(i) 
and (b)(2)(ii) of this section apply to you.
    (i) You have an ownership or control interest in an entity that has 
been:
    (A) Convicted of a criminal offense listed in Sec. 890.1004(a) as a 
basis for debarment;
    (B) Debarred under this subpart from participating in the FEHBP; or
    (C) Assessed with a civil monetary penalty under section 8902a of 
title 5, United States Code and this subpart; and
    (ii) You know or should know of the actions underlying the entity's 
conviction, debarment, or civil monetary penalty.
    (c) False, deceptive, or wrongful claims practices. We may debar 
you if, in connection with a claim or claims submitted to a FEHBP 
carrier, you commit any of the following violations:
    (1) You charge for health care items or services in an amount 
substantially in excess of your customary charges for those items or 
services;
    (2) You charge for health care items or services that are 
substantially in excess of the needs of the covered individual to whom 
they are furnished;
    (3) You charge for health care items or services whose quality 
fails to meet professionally recognized standards for items or services 
of that type;
    (4) You charge for health care items or services that you knew or 
should have known were not furnished to the covered individual as 
claimed;
    (5) You knowingly make, or cause to be made, a false statement or 
misrepresentation of a material fact reflected in a claim;
    (6) You charge for items or services that you knew or should have 
known were furnished while you were debarred from participation in the 
FEHBP under this subpart; or
    (7) You charge for items and services that you knew or should have 
known are in violation of the applicable charge limitations of section 
8904(b) of title 5, United States Code.
    (d) Failure to furnish required information. We may debar you if 
you knowingly fail to provide any information requested by a FEHBP 
carrier or OPM to determine:
    (1) Whether a payment or reimbursement is properly payable; or
    (2) The proper amount of payment or reimbursement that may be due.


Sec. 890.1012  What are OPM's time limits for initiating a permissive 
debarment?

    (a) Licensure cases. If the basis for your proposed debarment is a 
licensure action, we must issue you a notice of proposed debarment 
within 6 years of the effective date on which a State licensing 
authority revoked, suspended, restricted, or declined to renew your 
license, or the date on which you surrendered your license to the State 
authority.
    (b) Ownership or control. If the basis for the proposed debarment 
is ownership or control of an entity by a sanctioned person, or 
ownership or control of a sanctioned entity by a person who knew or 
should have known of the basis for the entity's sanction, we must issue 
a notice of proposed debarment within 6 years of the effective date of 
the sanction on which the proposed debarment is based.
    (c) False, deceptive, or wrongful claims practices. If the basis 
for your proposed debarment involves a claim filed with a FEHBP 
carrier, we must issue you a notice of proposed debarment within 6 
years of the date you presented the claim for payment to the covered 
person's FEHBP carrier.
    (d) Failure to furnish requested information. If the basis for your 
proposed debarment involves your failure to furnish information 
requested by an FEHBP carrier or OPM, we must issue you a notice of 
proposed

[[Page 64167]]

debarment within 6 years of the date on which the carrier or OPM 
requested you to furnish the information in question.


Sec. 890.1013  How will OPM decide whether to propose a permissive 
debarment?

    (a) Review factors. We will consider the factors listed in 
paragraphs (a)(1) through (a)(4) of this section in deciding whether to 
propose your debarment under a permissive debarment authority. The 
absence of a factor will be considered neutral; that is, it will have 
no effect on our decision.
    (1) The nature of any claims involved in the basis for your 
proposed debarment and the circumstances under which they were 
presented to FEHBP carriers;
    (2) The improper conduct involved in the basis for your proposed 
debarment, your degree of culpability, and your history of prior 
offenses;
    (3) The extent to which you pose or may pose a risk to the health 
and safety of FEHBP-covered individuals or to the integrity of FEHBP 
transactions; and
    (4) Other factors specifically relevant to your debarment that must 
be considered in the interests of fairness.
    (b) Specialized review in certain cases. In determining whether to 
propose debarment under Sec. 890.1011(c)(2), providing items or 
services substantially in excess of the needs of a covered individual, 
or Sec. 890.1011(c)(3), providing items or services that fail to meet 
professionally-recognized quality standards, we will obtain the input 
of trained reviewers, based on written medical protocols developed by 
physicians. If we cannot reach a decision on this basis, we will 
consult with a physician in an appropriate specialty area.


Sec. 890.1014  How will OPM notify me of my proposed debarment under a 
permissive debarment authority?

    We will apply the provisions of Sec. 890.1006 to notify you of your 
proposed permissive debarment.


Sec. 890.1015  What are the minimum and maximum periods for permissive 
debarments?

    We will not issue a permissive debarment for a period of less than 
one year, unless we specifically determine that a shorter period is in 
the interests of the FEHBP and its covered individuals. There is no 
limit on the maximum period of a permissive debarment.


Sec. 890.1016  What aggravating and mitigating factors will OPM 
consider in making a final determination of the period of my debarment?

    (a) Aggravating factors. We will consider the presence of any of 
the factors listed in paragraphs (a)(1) through (a)(5) of this section, 
to represent aggravating circumstances that may support increasing the 
length of a debarment beyond the periods specified in Secs. 890.1016 
through 890.1021, respectively. The absence of a factor will have no 
effect either to increase or lower the nominal period of debarment.
    (1) Your actions underlying the basis for the debarment, or similar 
acts, had an adverse impact on the physical or mental health or well-
being of one or more FEHBP-covered individuals or other persons.
    (2) You have a documented history of prior criminal wrongdoing; 
civil violations related to health care items or services; improper 
conduct; or administrative violations addressed by a Federal or State 
agency. We will consider matters involving violence, patient abuse, 
drug abuse, or controlled substances convictions or violations to be 
particularly serious.
    (3) Your actions underlying the basis for the debarment, or similar 
acts, resulted in financial loss to the FEHBP, FEHBP-covered 
individuals, or other persons. In determining whether, or to what 
extent, a financial loss occurred, we will not consider any amounts of 
restitution you may have paid.
    (4) You filed false, wrongful, or improper claims to FEHBP carriers 
that were numerous, submitted over a prolonged period of time, part of 
an on-going pattern of wrongful acts, or of which you were specifically 
aware or directly responsible.
    (5) You attempted to obstruct, hinder, or impede official inquiries 
into the wrongful conduct underlying your debarment.
    (b) Mitigating factors. The presence of either of the factors 
identified in paragraphs (b)(1) or (b)(2) of this section may support 
shortening your period of debarment to not less than one year. Their 
absence will have no effect to either raise or lower the period of 
debarment.
    (1) Your cooperation with Federal, State, or local authorities 
resulted in criminal convictions, civil recoveries, or administrative 
actions against other violators, or served as the basis for official 
determinations of program weaknesses or vulnerabilities; and
    (2) Official records of judicial proceedings or the proceedings of 
State licensing authorities contain a formal determination that you had 
a physical, mental, or emotional condition that reduced your level of 
culpability before or during the period in which you committed the 
violations in question.


Sec. 890.1017  How will OPM determine the period of my debarment based 
on revocation or suspension of my professional licensure?

    (a) Indefinite term of debarment. Subject to the exceptions in 
paragraph (b) of this section, your debarment under Sec. 890.1011(a) 
will be for an indefinite period coinciding with the period during 
which your license is revoked, suspended, restricted, surrendered, or 
otherwise not in effect in the State whose action against your license 
formed the basis for our debarment.
    (b) Aggravating circumstances. If any of the aggravating 
circumstances in Sec. 890.1016 apply to you, we may debar you for a 
stated period beyond the duration of your licensure revocation or 
suspension.


Sec. 890.1018  How will OPM determine the period of debarment for an 
entity owned or controlled by a sanctioned person?

    We will determine the length of debarments issued under 
Sec. 890.1011(b)(1) as described in paragraphs (a) through (c) of this 
section.
    (a) Concurrent with owner/controller's debarment. The debarment of 
an entity based on debarment of an individual with an ownership or 
control interest will be for a period concurrent with the individual's 
debarment. If any aggravating or mitigating circumstances identified in 
Sec. 890.1016 apply to the entity itself and were not considered in 
setting the period of the individual's debarment, we may debar the 
entity for a period longer or shorter than the individual's debarment.
    (b) Debarment based on owner/controller's conviction. The debarment 
of an entity based on the criminal conviction of a person with an 
ownership or control interest for an offense listed in 
Sec. 890.1004(a)(1) through (a)(4), will be for a period of no less 
than 3 years, subject to adjustment for any aggravating or mitigating 
circumstances identified in Sec. 890.1016 that apply to the entity 
itself.
    (c) Debarment based on owner/controller's civil monetary penalty. 
The debarment of an entity based on a civil monetary penalty imposed on 
a person with an ownership or control interest, will be for a period of 
no less than 3 years, subject to adjustment for any aggravating or 
mitigating circumstances identified in Sec. 890.1016 that apply to the 
entity itself.

[[Page 64168]]

Sec. 890.1019  How will OPM determine the period of my debarment based 
on my ownership or control of a sanctioned entity?

    We will determine the period of a debarment issued under 
Sec. 890.1011(b)(2) as described in paragraphs (a) through (c) of this 
section.
    (a) Concurrent with entity's debarment. If your debarment is based 
on your ownership or control of a debarred entity, we may debar you for 
a period concurrent with the entity's debarment. If any of the 
aggravating or mitigating circumstances identified in Sec. 890.1016 
applies to you personally and was not considered in setting the period 
of the entity's debarment, we may debar you for a period longer or 
shorter than the entity's debarment.
    (b) Debarment based on conviction of entity. If your debarment is 
based on the criminal conviction of an entity you own or control for an 
offense listed in Sec. 890.1004(a)(1) through (a)(4), we will debar you 
for a period of no less than 3 years, subject to adjustment for any 
aggravating or mitigating circumstances identified in Sec. 890.1016 
that apply to you as an individual.
    (c) Debarment based on civil monetary penalty against entity. If 
your debarment is based on a civil monetary penalty imposed on an 
entity you own or control, we will debar you for 3 years, subject to 
adjustment on the basis of the aggravating and mitigating circumstances 
listed in Sec. 890.1016 that apply to you as an individual.


Sec. 890.1020  How will OPM determine the period of my debarment based 
on false, wrongful, or deceptive claims?

    Debarments under Sec. 890.1011(c) will be for a period of 3 years, 
subject to adjustment based on the aggravating and mitigating factors 
listed in Sec. 890.1016.


Sec. 890.1021  How will OPM determine the period of my debarment based 
on my failure to provide information needed to resolve claims?

    Debarments under Sec. 890.1011(d) will be for a period of 3 years, 
subject to adjustment based on the aggravating and mitigating factors 
listed in Sec. 890.1016.


Sec. 890.1022  How may I contest OPM's proposal to debar me under a 
permissive debarment authority?

    (a) Right to contest your proposed debarment. You may challenge a 
proposed debarment by filing a written contest with the debarring 
official during the 30-day notice period. If you do not file a timely 
contest, the debarment will become effective as stated in the notice, 
without further action by OPM.
    (b) Challenging the length of your proposed debarment. You may 
contest the length of the proposed debarment, even if you are not 
challenging the debarment itself, or you may challenge both the length 
of a debarment and the debarment itself in the same contest. However, 
issues involving the length of a debarment are not subject to a fact-
finding hearing under Sec. 890.1028.


Sec. 890.1023  What information will the debarring official consider as 
part of my contest?

    (a) Documents and oral and written arguments. You may submit 
documents and written arguments in opposition to the proposed debarment 
and/or its length, and you may appear personally or through a 
representative before the debarring official to provide any other 
information you believe to be relevant.
    (b) Specific factual basis for contesting the proposed debarment. 
You must identify the specific facts that contradict the basis for your 
proposed debarment as stated in your notice of proposed debarment. A 
general or unsupported denial that the basis for debarment applies to 
you does not raise a genuine dispute over facts material to the 
debarment, and the debarring official will not give it any probative 
weight.
    (c) Mandatory disclosures. In addition to any other information 
that you submit during the contest, you must inform the debarring 
official of any of the matters in paragraphs (c)(1) through (c)(3) of 
this section, that applies to you. If you fail to provide applicable 
information, OPM may initiate further legal or administrative action 
against you.
    (1) Any existing, proposed, or prior exclusion, debarment, penalty, 
or other sanction imposed on you by a Federal, State, or local 
government agency, including any administrative agreement that purports 
to affect only a single agency;
    (2) Any criminal or civil legal proceeding not referenced in the 
notice of proposed debarment that arose from facts relevant to the 
basis for debarment stated in the notice; and
    (3) Any entity in which you have a control interest, as that term 
is defined in Sec. 890.1003(d).


Sec. 890.1024  What standards and burdens of proof apply to my contest?

    (a) Preponderance of evidence. OPM must prove by a preponderance of 
the evidence that you have committed a sanctionable violation.
    (b) Demonstrating basis for not imposing debarment. If OPM 
establishes an evidentiary basis for your debarment, you have the 
burden of demonstrating that you are presently responsible to 
participate in FEHBP and that debarment is not necessary to protect the 
interests of the program and its covered individuals.


Sec. 890.1025  When can the debarring official decide my contest 
without an additional fact-finding proceeding?

    A fact-finding proceeding in addition to your presentation of 
arguments, documents, and information to the debarring official is not 
required in the following circumstances:
    (a) Previously adjudicated facts. Your proposed debarment is based 
on facts determined in a prior due process adjudication. Examples of 
prior due process proceedings include, but are not limited to, the 
adjudication procedures associated with:
    (1) Licensure revocation, suspension, restriction, or nonrenewal by 
a State licensing authority;
    (2) Debarment, exclusion, suspension, civil monetary penalties, or 
similar legal or administrative adjudications by Federal, State, or 
local agencies;
    (3) A criminal conviction or civil judgment; or
    (4) An action on your part that constitutes a waiver of your right 
to a due process adjudication, such as surrender of your professional 
license during the pendency of a disciplinary hearing, entering a 
guilty plea or confession of judgment in a judicial proceeding, or 
entering a settlement agreement to resolve or forestall a civil, 
criminal, or administrative action.
    (b) No dispute of material facts. Your contest does not identify a 
bona fide dispute concerning facts material to the basis for your 
proposed debarment.


Sec. 890.1026  How will the debarring official resolve my contest if a 
fact-finding proceeding is not required?

    (a) Debarring official's procedures. If the debarring official 
determines that a fact-finding proceeding is not required, you will 
receive the final decision on your contest within 30 days after the 
record closes for submitting evidence, arguments, and information as 
part of your contest. The debarring official may extend this timeframe 
for good cause.
    (b) No further administrative review available. There are no 
further administrative proceedings after the presiding official's final 
decision. If you are adversely affected by the decision, you may appeal 
to the appropriate United States District Court under section 
8902a(h)(2) of title 5, United States Code.

[[Page 64169]]

Sec. 890.1027  When must the debarring official request a fact-finding 
proceeding before deciding my contest?

    (a) Criteria for holding fact-finding proceeding. The debarring 
official must request another OPM official (``presiding official'') to 
hold a fact-finding proceeding if both paragraphs (a)(1) and (a)(2) of 
this section apply.
    (1) Facts material to your proposed debarment have not been 
adjudicated in a prior due process proceeding; and
    (2) These facts are genuinely in dispute, based on the entire 
administrative record available to the debarring official.
    (b) Qualification to serve as presiding official. The presiding 
official is designated by the OPM Director or another OPM official 
authorized by the Director to make such designations. The presiding 
official will be a senior official who is able to conduct informal 
adjudicative processes. He will have had no previous contact with your 
proposed debarment or the contest.
    (c) Effect on contest. The debarring official must defer his 
decision on your contest pending the results of the fact-finding 
proceeding.


Sec. 890.1028  How will the presiding official conduct the fact-finding 
proceeding?

    (a) Informal proceeding. The presiding official will conduct the 
fact-finding proceedings as informally as practicable, consistent with 
principles of fundamental fairness. Formal rules of evidence or 
procedure do not apply to these proceedings.
    (b) Proceeding limited to disputed material facts. The presiding 
official can consider only the genuinely disputed facts identified by 
the debarring official as relevant to the basis for your debarment. 
Matters previously adjudicated or about which there is no bona fide 
dispute on the record are outside the presiding official's 
jurisdiction.
    (c) Right to present information, evidence, and arguments. You may 
appear before the presiding official with your counsel, submit oral and 
written arguments and documentary evidence, present witnesses on your 
behalf, question any witnesses testifying in support of your 
suspension, and challenge the accuracy of any other evidence that the 
agency offers as a basis for your suspension.
    (d) Record of proceedings. The presiding official will make an 
audio recording of the proceedings before him. If you wish to have a 
transcribed record, you may purchase it.
    (e) Presiding official's findings. The presiding official will 
determine all of the disputed facts identified by the debarring 
official, on the basis of a preponderance of the evidence in the entire 
administrative record. Within 30 days after the record of the 
proceeding closes, the presiding official must issue a written report 
of all findings of fact to the debarring official.


Sec. 890.1029  How will the debarring official decide my contest after 
the fact-finding proceeding?

    (a) Findings must be accepted. The debarring official must accept 
the presiding official's findings of fact, unless they are arbitrary, 
capricious, or clearly erroneous. In such a case, the debarring 
official must remand the material facts to the presiding official for 
additional proceedings in accordance with Sec. 890.1028.
    (b) Timeframe for final decision. The debarring official will issue 
a final written decision on your contest within 30 days after receiving 
the presiding official's findings. The debarring official may extend 
this decision period for good cause.
    (c) Debarring official's final decision.
    (1) The debarring official must observe the evidentiary standards 
and burdens of proof stated in Sec. 890.1024 in reaching a final 
decision to debar.
    (2) In any case where the final decision is to debar, the debarring 
official has the discretion to set the period of debarment, subject to 
the factors identified in Secs. 890.1015 through 890.1021.
    (3) The debarring official has the discretion to decide not to 
impose debarment in any case involving a permissive debarment 
authority.
    (e) No further administrative proceedings. If you are adversely 
affected by the debarring official's final decision, you may appeal to 
the appropriate United States District Court under section 8902a(h)(2) 
of title 5, United States Code.

Suspension


Sec. 890.1030  What is a suspension?

    (a) Temporary action pending formal proceedings. Suspension is a 
temporary action pending completion of an investigation or ensuing 
criminal, civil, or administrative proceedings.
    (b) Immediate effect. Suspension is effective immediately upon the 
suspending official's decision, without prior notice to you.
    (c) Effect equivalent to debarment. The effect of a suspension is 
the same as the effect of a debarment. You may not receive payment from 
FEHBP funds for items or services you furnish to covered individuals 
during the period of your suspension.


Sec. 890.1031  Under what circumstances may OPM suspend me?

    (a) Basis for suspension. We may suspend you if both paragraphs 
(a)(1) and (a)(2) of this section apply.
    (1) We obtain reliable evidence indicating that one of the grounds 
for suspension listed in paragraph (b) of this section applies to you; 
and
    (2) The suspending official determines under paragraph (c) of this 
section that immediate action to suspend you is necessary to protect 
the public interest.
    (b) Grounds for suspension. Evidence of any of the following 
situations may constitute grounds for a suspension:
    (1) You are indicted for or convicted of a criminal offense that is 
a basis for mandatory debarment under this subpart;
    (2) You are indicted for or convicted of a criminal offense that 
reflects a risk to the health, safety, or well-being of covered 
individuals who may obtain health care services or supplies from you; 
or
    (3) OPM obtains credible evidence indicating, in the judgment of 
the suspending official, that you have committed a violation that would 
warrant your debarment under this subpart. This evidence may include, 
but is not limited to:
    (i) Civil judgments;
    (ii) Notice that a Federal, State, or local government agency has 
debarred, suspended, or excluded you from participating in its programs 
or revoked or declined to renew a professional license; or
    (iii) Other official findings by Federal, State, or local bodies 
that determine factual or legal matters.
    (c) Determining need for immediate action. Suspension is intended 
to protect the public interest, including the health and safety of 
covered individuals or the integrity of FEHBP funds. The suspending 
official has wide discretion to decide whether to suspend you. He does 
not need to make a specific finding of immediacy or necessity before 
suspending you, and he may draw reasonable inferences from the nature 
of the alleged misconduct and from your actual or potential 
transactions with the FEHBP.


Sec. 890.1032  How long will my suspension last?

    (a) Initial period. The suspending official will establish the 
initial term of all suspensions as an indefinite period not to exceed 
12 months.
    (b) Formal legal proceedings not initiated. If formal legal or 
administrative proceedings have not begun against you within 12 months

[[Page 64170]]

after the effective date of your suspension, the suspending official 
may:(1) Terminate the suspension; or(2) If requested by the Department 
of Justice, the cognizant United States Attorney's Office, or other 
responsible Federal, State, or local prosecuting official, extend the 
suspension for an additional period, not to exceed 6 months.
    (c) Formal proceedings initiated. If formal criminal, civil, or 
administrative proceedings are initiated against you while you are 
suspended, the suspension may continue indefinitely, pending the 
outcome of those proceedings.
    (d) Terminating the suspension. The suspending official may 
terminate your suspension at any time, and must terminate it after 18 
months, unless formal proceedings have begun within that period.


Sec. 890.1033  How will OPM notify me of a suspension?

    (a) Written notice. OPM will send you a written notice of 
suspension under the procedures and methods described in 
Sec. 890.1006(c)-(e).
    (b) Contents of notice. The suspension notice will contain the 
following information:
    (1) That you are suspended, effective on the date of the notice;
    (2) The initial period of your suspension;
    (3) The basis for your suspension;
    (4) The provisions of law and regulation authorizing your 
suspension;
    (5) The effect of your suspension; and
    (6) Your rights to contest the suspension.


Sec. 890.1034  If I am debarred after being suspended, will the 
suspension period count as part of the debarment period?

    The debarring official may consider your contiguous period of 
suspension when determining the length of your debarment.


Sec. 890.1035  How may I contest OPM's decision to suspend me?

    (a) Filing a contest of the suspension. You may challenge a 
suspension by filing a contest, in writing, with the suspending 
official not later than 30 days after you receive notice of your 
suspension. The suspension will remain in effect during the contest, 
unless it is rescinded by the suspending official.
    (b) Informal proceeding. The suspending official will use informal, 
flexible procedures to conduct the contest. Formal rules of evidence 
and procedure do not apply to this proceeding.


Sec. 890.1036  What information will the suspending official consider 
as part of my contest?

    (a) Presenting information and arguments to the suspending 
official. You may submit documents and written arguments in opposition 
to the suspension, and you may appear personally, or through a 
representative, before the suspending official to provide any other 
information that you believe to be relevant.
    (b) Specific factual basis for contesting the suspension. You must 
identify specific facts that contradict the basis for your suspension 
as stated in the suspension notice. A general denial that the basis for 
the suspension applies to you will not raise a genuine dispute over 
facts material to the suspension, and the suspending official will not 
give it any probative weight.
    (c) Mandatory disclosures. You must inform the suspending official 
of any information described in paragraphs (c)(1) through (c)(3) of 
this section that applies to you:
    (1) Any existing, proposed, or prior exclusion, debarment, penalty, 
or other sanction imposed by a Federal, State, or local government 
agency, including any administrative agreement that purports to affect 
only a single agency;
    (2) Any criminal or civil proceeding not referenced in the 
suspension notice that arose from facts relevant to the basis for the 
suspension stated in the notice; and
    (3) Any entity in which you have a control interest, as that term 
is defined in Sec. 890.1003(d).


Sec. 890.1037  When can the suspending official decide my contest 
without arranging an additional fact-finding proceeding?

    In the situations described in paragraphs (a) through (c) of this 
section apply, the suspending official may decide your contest without 
an additional fact-finding process.
    (a) Previously adjudicated facts. Your suspension is based on an 
indictment or on facts determined by a prior adjudication in which you 
were afforded due process rights. Examples of due process proceedings 
include, but are not limited to, the adjudication procedures associated 
with licensure revocation, suspension, restriction, or nonrenewal by a 
State licensing authority; similar administrative adjudications by 
Federal, State, or local agencies; a criminal conviction or civil 
judgment; or an action on your part that constitutes a waiver of your 
right to a due process adjudication, such as surrender of your 
professional license during the pendency of a disciplinary hearing, 
entering a guilty plea or confession of judgment in a judicial 
proceeding, or entering a settlement agreement to resolve or forestall 
a civil, criminal, or administrative action. Neither the existence of 
the prior adjudication nor any of the underlying circumstances are 
considered to be subject to genuine factual dispute as part of the 
suspension proceeding.
    (b) Advisory by law enforcement officials. OPM is advised by the 
Department of Justice, the cognizant U.S. Attorney, a State attorney 
general's office, or a State or local prosecutor's office that 
proceedings before a presiding official would prejudice the substantial 
interests of the government in pending or contemplated legal 
proceedings based on the same facts as the suspension.
    (c) No bona fide factual dispute. The information, arguments, and 
documents you submit to the suspending official do not establish that 
there is a bona fide factual dispute regarding facts material to your 
suspension.


Sec. 890.1038  How will the suspending official resolve my contest if 
he determines that a fact-finding proceeding is not required?

    (a) Written decision. The suspending official will issue a written 
decision on your contest within 30 days after the record closes for 
submitting evidence, arguments, and information as part of your 
contest. He may extend this timeframe for good cause.
    (b) No further administrative review available. The suspending 
official's decision is final and is not subject to further 
administrative review.


Sec. 890.1039  Under what circumstances must the suspending official 
arrange a fact-finding proceeding before deciding my contest?

    (a) Disputed material facts. If the suspending official determines 
that your contest establishes the existence of a bona fide factual 
dispute regarding facts material to the suspension, he must arrange for 
them to be resolved through a fact-finding process conducted by another 
OPM official (``presiding official''), unless the restriction of 
Sec. 890.1037(b) applies.
    (b) Qualification to serve as presiding official. The presiding 
official is designated by the OPM Director or another OPM official 
authorized by the Director to make such designations. He will be a 
senior official qualified to conduct informal administrative 
adjudications. The presiding official must have had no previous contact 
with your suspension or the contest.
    (c) Decision on contest deferred. The suspending official must 
defer any

[[Page 64171]]

decision on your contest pending the results of the fact-finding 
process.


Sec. 890.1040  How will the presiding official conduct the fact-finding 
proceeding?

    (a) Informal proceeding. The presiding official will conduct the 
fact-finding proceedings as informally as practicable, consistent with 
principles of fundamental fairness. Specific rules of evidence or 
procedure do not apply to these proceedings.
    (b) Proceeding limited to disputed material facts. The presiding 
official can consider only the genuinely disputed facts identified by 
the suspending official as relevant to the basis for your suspension. 
Matters previously adjudicated or about which there is no bona fide 
dispute on the record are outside the presiding official's 
jurisdiction.
    (c) Right to present information, evidence, and arguments. You may 
appear before the presiding official with your counsel, submit oral and 
written arguments and documentary evidence, present witnesses on your 
behalf, question any witnesses testifying in support of your 
suspension, and challenge the accuracy of any other evidence that the 
agency offers as a basis for your suspension.
    (d) Record of proceedings. The presiding official will make an 
audio recording of the proceedings before him. If you wish to have a 
transcribed record, you may purchase it.
    (e) Presiding official's findings. Within 30 days after the record 
of the fact-finding proceeding closes, the presiding official will 
forward to the suspending official a written report of findings that 
resolves all of the disputed material facts. You will receive a copy of 
this report simultaneously.


Sec. 890.1041  How will the suspending official decide my contest after 
the fact-finding proceeding is completed?

    (a) Presiding official's findings must be accepted. The suspending 
official must accept the presiding official's findings, unless they are 
arbitrary, capricious, or clearly erroneous.
    (b) Suspending official's decision. Within 30 days after receiving 
the presiding official's report, the suspending official must issue a 
final written decision that either sustains, modifies, or terminates 
the suspension. The suspending official may extend this period for good 
cause.
    (c) Effect on subsequent debarment or suspension proceedings. A 
decision by the suspending official to modify or terminate your 
suspension will not prevent OPM from subsequently debarring you, or any 
other Federal agency from either suspending or debarring you, based on 
the same facts.

Effect of Debarment


Sec. 890.1042  When will my debarment go into effect?

    (a) Minimum notice period. Your debarment will take effect no 
sooner than 30 days after the date of OPM's notice of proposed 
debarment, unless the debarring official specifically determines that 
the health or safety of covered individuals or the integrity of the 
FEHBP warrants an earlier effective date. In that situation, the notice 
will specifically inform you that the debarring official decided to 
shorten or eliminate the 30-day notice period.
    (b) Uncontested debarments. If you do not contest the proposed 
debarment, it will take effect on the date stated in the notice of 
proposed debarment, without further procedures, actions, or notice by 
OPM.
    (c) Contested debarments and requests for reducing the period of 
debarment. If you contest the proposed debarment, it will not go into 
effect until the debarring official issues a final written decision, 
unless the health or safety of covered individuals or the integrity of 
the FEHBP requires your debarment to be effective while your contest is 
pending.


Sec. 890.1043  How does my debarment affect me?

    (a) FEHBP payments prohibited. You may not receive payment, 
directly or indirectly, from FEHBP funds for items or services that you 
provide to a covered individual on or after the effective date of your 
debarment. Also, you may not accept an assignment of a claim for items 
or services furnished to a covered individual during the period of your 
debarment. These restrictions remain in effect until you are reinstated 
by OPM.
    (b) Governmentwide effect. Your debarment precludes you from 
participating in all other Federal agencies' procurement and 
nonprocurement programs and activities, as required by section 2455 of 
the Federal Acquisition Streamlining Act of 1994. Other agencies may 
grant you a waiver or exception under their own regulations, to permit 
you to participate in their programs.
    (c) Civil or criminal liability. You may be subject to civil 
monetary penalties or criminal liability if you knowingly file claims, 
cause claims to be filed, or accept payment from FEHBP carriers for 
items or services that you provide to a covered individual on or after 
the effective date of your debarment.

Notifying Outside Parties About Debarment and Suspension Actions


Sec. 890.1044  What entities will OPM notify of my debarment or 
suspension?

    We will notify the entities listed in paragraphs (a)-(d) of this 
section about your debarment or suspension.
    (a) FEHBP carriers;
    (b) General Services Administration, for publication in the 
comprehensive governmentwide list of Federal agency exclusions;
    (c) Other Federal agencies that administer health care or health 
benefits programs; and
    (d) State and local agencies, authorities, boards, or other 
organizations with health care licensing or certification 
responsibilities.


Sec. 890.1045  How will OPM inform persons covered by FEHBP about my 
debarment or suspension?

    After receiving OPM's notice of your debarment or suspension, FEHBP 
carriers must inform covered individuals who have previously obtained 
items or services from you of the following:
    (a) That you are debarred or suspended;
    (b) The minimum period remaining in your period of debarment; and
    (c) That OPM must terminate your debarment or suspension before 
FEHBP funds can be paid for items or services you furnish to covered 
individuals.

Exceptions to the Effect of Debarments


Sec. 890.1046  How does my debarment affect payments to me for services 
I furnish in emergency situations?

    You may receive FEHBP funds paid for items or services you furnish 
on an emergency basis if the FEHBP carrier serving the covered 
individual determines that:
    (a) Your treatment was essential to the health and safety of the 
covered individual; and
    (b) No other source of equivalent treatment was reasonably 
available.


Sec. 890.1047  What special rules apply to me as an institutional 
provider?

    (a) Covered individual admitted before debarment. If a covered 
person is admitted before the effective date of your debarment, you may 
continue to receive payment of FEHBP funds for inpatient institutional 
services until the covered person is released or transferred, unless 
the debarring official terminates payments under paragraph (b) of this 
section.
    (b) Health and safety of covered individuals. If the debarring 
official determines that the health and safety of covered persons would 
be at risk if they

[[Page 64172]]

remain in a debarred institution, OPM may terminate your FEHBP payments 
for them at any time.
    (c) Notice of payment limitations. If we limit any payment under 
paragraph (b) of this section, we will inform you of our decision in 
writing.
    (d) Finality of debarring official's decision. The debarring 
official's decision to limit or deny payments under paragraph (b) of 
this section is not subject to further administrative review or 
reconsideration.


Sec. 890.1048  How may I obtain a waiver of my debarment if I am the 
sole source of health care services in a community?

    (a) Application required. You may apply for a limited waiver of 
your debarment at any time after you receive OPM's notice of proposed 
debarment. Suspended providers are not eligible to request a waiver of 
their suspension.
    (b) Criteria for granting waiver. To receive a waiver, you must 
clearly demonstrate that you meet all of the following criteria:
    (1) You are the sole community provider or the sole source of 
essential specialized services in a community;
    (2) A limited waiver of the debarment would be in the best 
interests of covered individuals in the defined service area;
    (3) There are reasonable assurances that the actions which formed 
the basis for your debarment will not recur; and
    (4) There is no basis under this subpart for continuing your 
debarment.
    (c) Waiver applies only in the defined service area. A limited 
waiver applies only to items or services provided within the defined 
service area where you are the sole community provider or sole source 
of essential specialized services.
    (d) Governmentwide effect continues. A limited waiver applies only 
to your FEHBP transactions. Even if we waive your debarment for FEHBP 
purposes, the governmentwide effect under section 2455 of the Federal 
Acquisition Streamlining Act of 1994 continues for all other Federal 
agencies' procurement and nonprocurement programs and activities.
    (e) Waiver rescinded if circumstances change. We will rescind the 
limited waiver when any of the conditions on which it is based no 
longer apply. Examples include, but are not limited to the following:
    (1) You cease to provide items or services in the defined service 
area;
    (2) Another provider begins to furnish equivalent items or services 
in the defined service area, so that you are no longer the sole 
provider or sole source; or
    (3) The actions that formed the basis for your debarment, or 
similar acts, recur. If we rescind the limited waiver, your debarment 
will resume full effect for all FEHBP transactions.
    (f) Effect on period of debarment. The minimum period of your 
debarment is established when the debarment is initially imposed. A 
subsequent decision to grant, deny, or rescind a limited waiver will 
not change that period.
    (g) Application is necessary for reinstatement. You must apply for 
reinstatement at the end of your period of debarment, even if your 
limited waiver is in effect when your debarment expires.
    (h) Finality of debarring official's decision. The debarring 
official's decision to grant or deny a limited waiver is final and not 
subject to further administrative review or reconsideration.

Special Exceptions To Protect Covered Persons


Sec. 890.1049  How will FEHBP carriers handle claims for items or 
services furnished after a provider's debarment?

    (a) Covered individual unaware of debarment. FEHBP funds may be 
paid for items and services furnished by a debarred provider if, at the 
time the items or services were furnished, the covered individual did 
not know, and could not reasonably be expected to know, that the 
provider was debarred. This provision is intended solely to protect the 
interests of FEHBP covered persons who obtain services from a debarred 
or suspended provider in good faith and without knowledge that the 
provider has been sanctioned. It does not authorize sanctioned 
providers to submit claims for payment to FEHBP carriers.
    (b) Notice sent by carrier. When paying a claim under the authority 
of paragraph (a) of this section, the carrier must send a written 
notice to the covered individual that includes the following 
information:
    (1) That the provider is debarred and prohibited from receiving 
payment of FEHBP funds for items or services furnished after the 
debarment date;
    (2) That claims will not be paid for items or services furnished by 
the debarred provider after the covered individual receives notice of 
the debarment;
    (3) That the current claim is being paid as a legally-authorized 
exception to the effect of the debarment in order to protect covered 
individuals who obtain items or services without knowledge of their 
provider's debarment;
    (4) That FEHBP carriers must deny payment of any claim for items or 
services rendered by a debarred provider 15 days or longer after the 
date of the notice described in this subsection, unless the covered 
individual had no knowledge of the provider's debarment when the items 
or services were rendered;
    (5) The minimum period remaining in the provider's debarment; and
    (6) OPM must terminate the provider's debarment or suspension 
before FEHBP funds can be paid for items or services furnished to 
covered individuals.


Sec. 890.1050  How may an FEHBP covered individual request an exception 
to a provider's debarment?

    (a) Request by a covered individual. Any individual in whose name 
an FEHBP subscription is issued may submit a request through the FEHBP 
carrier for continued payment of items or services furnished by a 
debarred provider to any person covered under that enrollment. Requests 
will not be accepted for continued payments to suspended providers.
    (b) OPM action on the request. OPM will consider the recommendation 
of the FEHBP carrier before acting on the request. To be approved, the 
request must demonstrate that at least one of the situations in 
paragraphs (b)(1) or (b)(2) of this section applies.
    (1) Interrupting an existing, ongoing course of treatment by the 
provider would have a detrimental effect on the covered individual's 
health or safety; or
    (2) The covered individual does not have access to an alternative 
source of the same or equivalent health care items or services within a 
reasonably accessible service area.
    (c) Scope of the exception. An approved exception applies only to 
the covered individual(s) who requested it, or on whose behalf it was 
requested. The governmentwide effect of the provider's debarment under 
section 2455 of the Federal Acquisition Streamlining Act is not altered 
by an exception.
    (d) Provider requests not allowed. OPM will not consider an 
exception request submitted by a provider on behalf of a covered 
individual.
    (e) Finality of debarring official's decision. The debarring 
official's decision on an exception request is not subject to further 
administrative review or reconsideration.

Reinstatement


Sec. 890.1051  How may I be reinstated when my period of debarment 
expires?

    (a) Application required. Reinstatement is not automatic when the 
minimum period of your debarment expires. You must apply in writing to

[[Page 64173]]

OPM, supplying specific information about the reinstatement criteria 
outlined in paragraph (c) of this section.
    (b) Reinstatement date. We will accept your reinstatement 
application no earlier than 60 days before the nominal expiration date 
of your debarment. However, in no case will we reinstate you before 
your minimum period of debarment expires.
    (c) Reinstatement criteria. Your reinstatement application must 
clearly demonstrate that you meet all of the following criteria:
    (1) There are reasonable assurances that the actions resulting in 
your debarment have not and will not recur;
    (2) There is no basis under this subpart for continuing your 
debarment; and
    (3) There is no pending criminal, civil, or administrative action 
that would subject you to debarment by OPM.
    (d) Written notice of OPM action. We will inform you in writing of 
our decision on your reinstatement application.
    (e) Limitation on reapplication. If we deny your reinstatement 
application, you may not reapply until 1 year after the date of our 
decision.


Sec. 890.1052  Under what circumstances will OPM reinstate me without 
my filing an application?

    If any of the situations identified in paragraphs (a) through (c) 
of this section occurs, you should inform the debarring official 
immediately. OPM will reinstate you without the need for a 
reinstatement application in these circumstances. OPM will send you a 
written notice concerning the effective date of your reinstatement.
    (a) Conviction reversed. The conviction on which your debarment was 
based is reversed or vacated on appeal.
    (b) Sanction terminated. A sanction imposed by another Federal 
agency, on which your debarment was based, is terminated by that 
agency.
    (c) Court order. A Federal court orders OPM to stay, rescind, or 
terminate your debarment.


Sec. 890.1053  Table of procedures and effective dates for 
reinstatements.

    The following table indicates the procedures and effective dates 
for reinstatements under this subpart:

--------------------------------------------------------------------------------------------------------------------------------------------------------
        Basis for debarment                           Application required?                                         Effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
Period of debarment expires........  Yes....................................................  After debarment expires.
Conviction reversed on appeal......  No.....................................................  Retroactive (start of debarment).
Other agency sanction ends.........  No.....................................................  Ending date of sanction.
Court order ending debarment.......  No.....................................................  Retroactive (start of debarment).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 890.1054  What agencies and entities will OPM notify about my 
reinstatement?

    We will inform the FEHBP carriers, government agencies and other 
organizations that were originally notified of your debarment.


Sec. 890.1055  How may I contest OPM's decision to deny my 
reinstatement application?

    (a) Obtaining reconsideration of the initial decision. You, or a 
representative acting on your behalf, may submit documents and written 
arguments to the debarring official, opposing the decision to deny your 
reinstatement application. In addition, you and/or your representative 
may request to appear in person to present oral arguments to the 
debarring official. You must submit these materials within 30 days 
after the date of the decision notice in paragraph (a) of this section.
    (b) Debarring official's final decision on reinstatement. The 
debarring official will issue a final written decision, based on the 
entire administrative record, within 30 days of the record closing to 
receipt of information. The debarring official may extend the decision 
period for good cause.
    (c) Finality of debarring official's decision. The debarring 
official's final decision is not subject to further administrative 
review or reconsideration.

Civil Monetary Penalties and Financial Assessments [Reserved]

[FR Doc. 01-30529 Filed 12-11-01; 8:45 am]
BILLING CODE 6325-52-P