(a) Causes for debarment. TDMHMR may remove contractual rights from an individual or legal entity for causes including, but not limited to, the following:
(1) being found guilty, pleading guilty, pleading nolo contendere, or receiving a deferred adjudication in a criminal court, relating to:
(A) obtaining, attempting to obtain, or performing a public or private contract or subcontract;
(B) embezzlement, theft, forgery, bribery, falsification or destruction of records, any form of fraud, receipt of stolen property, or any other offense indicating moral turpitude or a lack of business integrity or honesty;
(C) dangerous drugs, controlled substances, or other drug-related offense;
(D) federal antitrust statutes arising from the submission of bids or proposals; or
(E) any physical or sexual abuse or neglect offense;
(2) being debarred from contracting by any unit of the federal government or any unit of a state government;
(3) violating TDMHMR contract provisions including failing to perform according to the terms, conditions, and specifications or within the time limit(s) specified in the TDMHMR contract, including, but not limited to, the following:
(A) failing to abide by applicable federal and state statutes, such as those regarding persons with disabilities and those regarding civil rights;
(B) having a record of failure to perform or of unsatisfactory performance according to the terms of one or more contracts or subcontracts, if that failure or unsatisfactory performance has occurred within five years preceding the determination to debar. Application of this subsection will be made only for actions occurring after the effective date of these rules. Failure to perform and unsatisfactory performance includes, but is not limited to, the following:
(i) failing to correct contract performance deficiencies after receiving written notice about them from TDMHMR or its authorized agents;
(ii) failing to repay or make and follow through with arrangements satisfactory to the Department to repay identified overpayments or other erroneous payments, or assessed liquidated damages or penalties;
(iii) failing to meet standards that are required for licensure or certification, or that are required by state or federal law, TDMHMR rule, or TDMHMR policy concerning TDMHMR contractors;
(iv) failing to execute amendments required by TDMHMR;
(v) billing for services or merchandise not provided to the consumer or TDMHMR;
(vi) submitting cost reports containing costs not associated with and/or not covered by the contract or TDMHMR rules and instructions. Intent to increase individual or statewide rates or fees by submission of unallowable costs must be shown for a single cost report, but intent may be inferred when a pattern of submitting cost reports with unallowable costs is shown;
(vii) submitting a false statement or misrepresentation which, if used, may increase individual or statewide rates or fees;
(viii) charging consumer or patient fees contrary to TDMHMR rules or policy;
(ix) failing to notify and reimburse TDMHMR or its agents for services TDMHMR paid for when the contractor received reimbursement from a liable third party;
(x) failing to disclose or make available, upon demand, to TDMHMR or its representatives (including appropriate federal and state agencies) any records the contractor is required to maintain;
(xi) failing to provide and maintain services within standards required by statute, regulation, or contract; or
(xii) violating the TDMHMR provisions applicable to the contract or any rule or regulation issued by TDMHMR;
(4) submitting an offer, bid, proposal or application that contains a false statement or misrepresentation or omits pertinent facts or documents that are material to the procurement;
(5) engaging in any abusive or neglectful practice that results in or could result in death or injury to the consumers served by the contractor; or
(6) violating any of the provisions outlined in §409.55 of this title (relating to Grounds for Fraud Referral and Administrative Sanction). For purposes of this subsection, any reference in Chapter 409, Subchapter C of this title (relating to Fraud and Abuse and Recovery of Benefits), to a violation of the Medicaid (Title XIX), Medicare (Title XVIII), or Title XX programs is expanded to include an identical violation within any programs of federal or state governments;
(7) knowingly and willingly using a debarred person or entity as an employee, independent contractor, or agent to perform a contract with TDMHMR.
(b) Conditions of debarment. Individuals, parts of entities, and entities that have been debarred may not:
(1) receive a contract;
(2) be allowed to retain a contract which has been awarded before debarment;
(3) bid or otherwise make offers to receive a contract or subcontract;
(4) participate in TDMHMR programs which do not require the provider to sign a contract or agreement; or
(5) either personally or through a clinic, group, corporation or other association bill to or receive payment from TDMHMR for any services or supplies provided by the debarred entity on or after the effective date of the debarment. Additionally, TDMHMR will not pay for any services ordered, prescribed, or delivered by the debarred entity for TDMHMR recipients after the date of debarment. No costs associated with a debarred entity, including the salary, fringe benefits, overhead, payments to, or any other costs associated with an employee, owner, officer, director, board member, independent contractor, manager, or agent who was debarred may be included in a TDMHMR cost report or any other document which will be used to determine an individual payment rate, a statewide payment rate, or a fee.
(c) Entities that may be debarred. Debarment may be applied against an individual, an entire legal entity, or a specified part of a legal entity.
Source Note: The provisions of this §6.64 adopted to be effective March 25, 1997, 22 TexReg 2751; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841
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