(a) OIG selects nursing facilities for utilization review by conducting a comprehensive annual review of all facilities, considering factors such as:
  (1) length of time since the last review;
  (2) whether the nursing facility has ever been reviewed;
  (3) previous review results;
  (4) compliance history of the nursing facility;
  (5) nursing facilities with claims in high-dollar reimbursement categories such as rehabilitation, extensive services, and special care services;
  (6) variances in billing patterns;
  (7) data analytics indicating potential fraud, waste, or abuse; and
  (8) complaints and referrals.
(b) Onsite Utilization Reviews.
  (1) Onsite utilization reviews (onsite reviews) may be announced or unannounced.
  (2) The onsite review period begins when an OIG nurse reviewer presents an entrance letter to the nursing facility provider and ends when the nurse reviewer informs the provider that the onsite review is completed. The onsite review period does not include the onsite exit conference.
  (3) During the onsite review, the nurse reviewer informs the facility staff which minimum data set (MDS) assessments were selected for review.
  (4) The nursing facility provider must ensure an assigned staff member knowledgeable of the MDS assessments and clinical records is available at the facility to the nurse reviewer during the entire onsite review.
  (5) A nursing facility provider must make reasonable efforts to begin providing requested documents to the nurse reviewer immediately after entrance to the facility. For records stored on-site, a nursing facility provider must provide all requested documents to the nurse reviewer within a reasonable time, not to exceed three hours, after the nurse reviewer's request for documents and during regular business hours. If OIG determines the requested records are stored off-site or otherwise unavailable for immediate retrieval, OIG may extend the three-hour deadline.
  (6) During the onsite review, when the nurse reviewer identifies a potential MDS assessment error, the nurse reviewer requests supporting documentation from the assigned nursing facility staff member.
  (7) The nursing facility provider must provide to OIG all requested documentation, including supporting documentation described in paragraph (6) of this subsection, in the format requested, during business hours of the onsite review period and prior to the onsite exit conference, except when OIG determines that the provider has made reasonable efforts to provide such documentation during the onsite review period but has been unable to do so.
  (8) If OIG determines that the nursing facility provider has made reasonable efforts to provide requested documentation during the onsite review period but has been unable to do so, OIG allows the provider to provide the requested documentation in the format and time frame determined by OIG.
  (9) When requested, the nursing facility provider must provide, for each requested record, a signed and notarized OIG-approved records affidavit that properly authenticates the documents provided to OIG as business records pursuant to Texas Rules of Evidence Rule 803(6) and Rule 902(10).
  (10) If a nursing facility provider does not produce records requested by the nurse reviewer, the provider must provide a written statement explaining why the records were not produced.
  (11) If a nursing facility provider refuses to provide a records affidavit, the nursing facility provider must state the refusal in writing and attach the statement to the records provided to the nurse reviewer.
  (12) Failure to produce requested records and affidavits may result in an OIG enforcement action under Subchapter G of this chapter (relating to Administrative Actions and Sanctions).
(c) Desk Utilization Reviews.
  (1) For a desk utilization review, OIG sends the nursing facility provider a written request for records. The written request for records specifies the date the requested records must be received by OIG. The written request for records gives the provider 30 calendar days to provide the requested records to OIG.
  (2) The nursing facility provider must provide all requested records in the format requested, and, when requested, a signed and notarized OIG-approved records affidavit for each requested record that properly authenticates the documents as business records pursuant to Texas Rules of Evidence Rule 803(6) and Rule 902(10) to OIG by the date specified in the written request for records.
  (3) If a nursing facility provider does not produce the requested records by the date specified in the OIG records request, the provider must provide a written statement explaining why the records were not produced.
  (4) If a nursing facility provider refuses to provide a records affidavit, the nursing facility provider must state the refusal in writing and attach the statement to the records provided to OIG.
  (5) Failure to produce requested records and affidavits may result in OIG enforcement action under Subchapter G of this chapter (relating to Administrative Actions and Sanctions).

Source Note: The provisions of this §371.218 adopted to be effective February 9, 2023, 48 TexReg 503