208.164.  Medical assistance abuse or fraud, definitions — department's or division's powers — reports, confidential — restriction or termination of benefits, when — rules — contracts and provider agreements, termination or denial, when. — 1.  As used in this section, unless the context clearly requires otherwise, the following terms mean:

  (1)  "Abuse", a documented pattern of inducing, furnishing, or otherwise causing a recipient to receive services or merchandise not otherwise required or requested by the recipient, attending physician or appropriate utilization review team; a documented pattern of performing and billing tests, examinations, patient visits, surgeries, drugs or merchandise that exceed limits or frequencies determined by the department for like practitioners for which there is no demonstrable need, or for which the provider has created the need through ineffective services or merchandise previously rendered.  The decision to impose any of the sanctions authorized in this section shall be made by the director of the department, following a determination of demonstrable need or accepted medical practice made in consultation with medical or other health care professionals, or qualified peer review teams;

  (2)  "Department", the department of social services;

  (3)  "Excessive use", the act, by a person eligible for services under a contract or provider agreement between the department of social services or its divisions and a provider, of seeking and/or obtaining medical assistance benefits from a number of like providers and in quantities which exceed the levels that are considered medically necessary by current medical practices and standards for the eligible person's needs;

  (4)  "Fraud", a known false representation, including the concealment of a material fact that the provider knew or should have known through the usual conduct of his profession or occupation, upon which the provider claims reimbursement under the terms and conditions of a contract or provider agreement and the policies pertaining to such contract or provider agreement of the department or its divisions in carrying out the providing of services, or under any approved state plan authorized by the federal Social Security Act;

  (5)  "Health plan", a group of services provided to recipients of medical assistance benefits by providers under a contract with the department;

  (6)  "Medical assistance benefits", those benefits authorized to be provided by sections 208.152 and 208.162^*;

  (7)  "Prior authorization", approval to a provider to perform a service or services for an eligible person required by the department or its divisions in advance of the actual service being provided or approved for a recipient to receive a service or services from a provider, required by the department or its designated division in advance of the actual service or services being received;

  (8)  "Provider", any person, partnership, corporation, not-for-profit corporation, professional corporation, or other business entity that enters into a contract or provider agreement with the department or its divisions for the purpose of providing services to eligible persons, and obtaining from the department or its divisions reimbursement therefor;

  (9)  "Recipient", a person who is eligible to receive medical assistance benefits allocated through the department;

  (10)  "Service", the specific function, act, successive acts, benefits, continuing benefits, requested by an eligible person or provided by the provider under contract with the department or its divisions.

  2.  The department or its divisions shall have the authority to suspend, revoke, or cancel any contract or provider agreement or refuse to enter into a new contract or provider agreement with any provider where it is determined the provider has committed or allowed its agents, servants, or employees to commit acts defined as abuse or fraud in this section.

  3.  The department or its divisions shall have the authority to impose prior authorization as defined in this section:

  (1)  When it has reasonable cause to believe a provider or recipient has knowingly followed a course of conduct which is defined as abuse or fraud or excessive use by this section; or

  (2)  When it determines by rule that prior authorization is reasonable for a specified service or procedure.

  4.  If a provider or recipient reports to the department or its divisions the name or names of providers or recipients who, based upon their personal knowledge has reasonable cause to believe an act or acts are being committed which are defined as abuse, fraud or excessive use by this section, such report shall be confidential and the reporter's name shall not be divulged to anyone by the department or any of its divisions, except at a judicial proceeding upon a proper protective order being entered by the court.

  5.  Payments for services under any contract or provider agreement between the department or its divisions and a provider may be withheld by the department or its divisions from the provider for acts or omissions defined as abuse or fraud by this section, until such time as an agreement between the parties is reached or the dispute is adjudicated under the laws of this state.

  6.  The department or its designated division shall have the authority to review all cases and claim records for any recipient of public assistance benefits and to determine from these records if the recipient has, as defined in this section, committed excessive use of such services by seeking or obtaining services from a number of like providers of services and in quantities which exceed the levels considered necessary by current medical or health care professional practice standards and policies of the program.

  7.  The department or its designated division shall have the authority with respect to recipients of medical assistance benefits who have committed excessive use to limit or restrict the use of the recipient's Medicaid identification card to designated providers and for designated services; the actual method by which such restrictions are imposed shall be at the discretion of the department of social services or its designated division.

  8.  The department or its designated division shall have the authority with respect to any recipient of medical assistance benefits whose use has been restricted under subsection 7 of this section and who obtains or seeks to obtain medical assistance benefits from a provider other than one of the providers for designated services to terminate medical assistance benefits as defined by this chapter, where allowed by the provisions of the federal Social Security Act.

  9.  The department or its designated division shall have the authority with respect to any provider who knowingly allows a recipient to violate subsection 7 of this section or who fails to report a known violation of subsection 7 of this section to the department of social services or its designated division to terminate or otherwise sanction such provider's status as a participant in the medical assistance program.  Any person making such a report shall not be civilly liable when the report is made in good faith.

  10.  In order to comply with the provisions of 42 U.S.C. Section 1320a-7(a) relating to mandatory exclusion of certain individuals and entities from participation in any federal health care program, and in furtherance of the state's authority under federal law, as implemented by 42 CFR 1002.3(b), to exclude an individual or entity from MO HealthNet for any reason or period authorized by state law, the department or its divisions shall suspend, revoke, or cancel any contract or provider agreement or refuse to enter into a new contract or provider agreement with any provider where it is determined that such provider is not qualified to perform the service or services required, as described in 42 U.S.C. Section 1396a(a)(23), because such provider, or such provider's agent, servant, or employee acting under such provider's authority:

  (1)  Has a conviction related to the delivery of any item or service under Medicare or under any state health care program, as described in 42 U.S.C. Section 1320a-7(a)(1);

  (2)  Has a conviction related to the neglect or abuse of a patient in connection with the delivery of any health care item or service, as described in 42 U.S.C. Section 1320a-7(a)(2);

  (3)  Has a felony conviction related to health care fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct, as described in 42 U.S.C. Section 1320a-7(a)(3);

  (4)  Has a felony conviction related to the unlawful manufacture, distribution, prescription, or dispensation of a controlled substance, as described in 42 U.S.C. Section 1320a-7(a)(4);

  (5)  Has been found guilty of, or civilly liable for, a pattern of intentional discrimination in the delivery or nondelivery of any health care item or service based on the race, color, or national origin of recipients, as described in 42 U.S.C. Section 2000d; or

  (6)  Is an abortion facility, as defined in section 188.015, or an affiliate, as defined in section 188.015, of such abortion facility.