(1) "Abuse" means a pattern of provider conduct that is inconsistent with sound fiscal, business, or medical practices and that results in:

(A) An unnecessary cost to the Medicaid program; or

(B) Reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care;

(2) (A) "Adverse decision" means any decision by the Department of Human Services or its reviewers or contractors that adversely affects a Medicaid provider or recipient in regard to:

(i) Receipt of and payment for Medicaid claims and services, including, but not limited to, decisions as to:

(a) Appropriate level of care or coding;

(b) Medical necessity;

(c) Prior authorization;

(d) Concurrent reviews;

(e) Retrospective reviews;

(f) Least restrictive setting;

(g) Desk audits;

(h) Field audits and onsite audits; and

(i) Inspections or surveys; and

(ii) Payment amounts due to or from a particular provider resulting from gain sharing, risk sharing, incentive payments, or another reimbursement mechanism or methodology, including calculations that affect or have the potential to affect payment.

(B) To constitute an adverse decision, an agency decision need not have a monetary penalty attached but must have a direct monetary consequence to the provider.

(C) "Adverse decision" does not include the design of or changes to an element of a reimbursement methodology or payment system that is of general applicability and implemented through the rule-making process;

(3) "Appeal" means an appeal of an adverse decision to an independent administrative law judge as provided under this subchapter;

(4) "Claim" means a request for payment of services or for prior, concurrent, or retrospective authorization to provide services;

(5) "Concurrent review" or "concurrent authorization" means a review to determine whether a specified recipient currently receiving specific services may continue to receive services;

(6) "Denial" means denial or partial denial of a claim;

(7) "Department" means:

(A) The Department of Human Services;

(B) All the divisions and programs of the department, including the state Medicaid program; and

(C) All the department's contractors, fiscal agents, and other designees and agents;

(8) "Final determination" means a Medicaid overpayment determination:

(A) For which all provider appeals have been exhausted; or

(B) That cannot be appealed or appealed further by the provider because the time to file an appeal has passed;

(9) "Fraud" means an intentional representation that is untrue or made in disregard of its truthfulness for the purpose of inducing reliance in order to obtain or retain anything of value under the Medicaid program;

(10) "Level of care" means:

(A) The level of licensure or certification of the caregiver that is required to provide medically necessary services, for example, a physician or a registered nurse; and

(B) As applicable to the adverse decision:

(i) With respect to medical assistance reimbursed by procedure code or unit of service, the quantity of each medically necessary procedure or unit;

(ii) With respect to durable medical equipment, the type of equipment required and the duration of equipment use; and

(iii) With respect to all other medical assistance, the:

(a) Intensity of service, for example, whether intensive care unit hospital services were required;

(b) Duration of service, for example, the number of days of a hospital stay; or

(c) Setting in which the service is delivered, for example, inpatient or outpatient;

(11) "Medicaid" means the medical assistance program under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq., that is operated by the department, including contractors, fiscal agents, and all other designees and agents;

(12) "Person" means any individual, company, firm, organization, association, corporation, or other legal entity;

(13) "Primary care physician" means a physician whom the department has designated as responsible for the referral or management, or both, of a Medicaid recipient's health care;

(14) "Prior authorization" means the approval by the state Medicaid program for specified services for a specified Medicaid recipient before the requested services may be performed and before payment will be made by the state Medicaid program;

(15) "Provider" means a person enrolled to provide health or medical care services or goods authorized under the state Medicaid program;

(16) "Recoupment" means any action or attempt by the department to recover or collect Medicaid payments already made to a provider with respect to a claim by:

(A) Reducing other payments currently owed to the provider;

(B) Withholding or setting off the amount against current or future payments to the provider;

(C) Demanding payment back from a provider for a claim already paid; or

(D) Reducing or affecting in any other manner the future claim payments to the provider;

(17) "Retrospective review" means the review of services or practice patterns after payment, including, but not limited to:

(A) Utilization reviews;

(B) Medical necessity reviews;

(C) Professional reviews;

(D) Field audits and onsite audits; and

(E) Desk audits;

(18) "Reviewer" means any person, including, but not limited to, reviewers, auditors, inspectors, and surveyors, who in reviewing a provider or a provider's provision of medical assistance, reviews without limitation:

(A) Quality;

(B) Quantity;

(C) Utilization;

(D) Practice patterns;

(E) Medical necessity; and

(F) Compliance with Medicaid laws, regulations, and rules; and

(19)

(A) "Technical deficiency" means an error or omission in documentation by a provider that does not affect direct patient care of the recipient.

(B) "Technical deficiency" does not include:

(i) Lack of medical necessity according to professionally recognized local standards of care;

(ii) Failure to provide care of a quality that meets professionally recognized local standards of care;

(iii) Failure to document a mandatory quality measure required for gain sharing or medical home or health home incentive payments as specified in a reimbursement mechanism or methodology;

(iv) Failure to obtain prior or concurrent authorization if required by regulation;

(v) Fraud;

(vi) Abuse;

(vii) A pattern of noncompliance; or

(viii) A gross and flagrant violation.