As used in this part: (1) "Agent" means a person that has express or implied authority to obligate or act on behalf of another person. (2) "Affiliated person" means: (a) a subcontractor, subsidiary, or parent organization of a risk contractor; or (b) a party with a substantial relationship to a risk contractor, including: (i) an officer, director, trustee, general partner, managing employee, or other individual who holds a similar position of authority or responsibility, whether through employment or by contract; (ii) a shareholder, member, or equity holder that owns, directly or indirectly, 5% or more of any class of equity interest, or any person who would own that interest upon conversion, exercise, or exchange of a convertible security, option, warrant, or similar instrument; (iii) a risk contractor's key employee; (iv) an immediate family member of a person described in Subsections (2)(b)(i) through (iii); (v) an entity in which a person described in Subsections (2)(b)(i) through (iv) has an ownership interest of 5% or more, or for which an individual described in Subsections (2)(b)(i) through (iv) serves as an officer, director, or key employee; or (vi) a person acting on behalf of, in concert with, or as an agent of a risk contractor with respect to: (A) any duties, functions, activities, or decision-making under the risk contractor's contract with the department; or (B) compliance with state or federal laws, regulations, or guidance. (3) "Claim" means a request or demand for payment for a service provided to an enrollee. (4) "Conflict of interest" means a circumstance or appearance of a circumstance where an interest in, or arising from, an arrangement, relationship, transaction, or activity could or does adversely affect a risk contractor's ability to, as viewed by a reasonable person with knowledge of the relevant facts: (a) diligently, effectively, and efficiently perform the risk contractor's duties and responsibilities under the risk contractor's contract with the department; (b) comply with federal and state law; or (c) act impartially and in the best interest of the Medicaid program, taxpayers, and Medicaid enrollees. (5) "Control" means a person's authority or significant influence over another person's: (a) decisions; (b) governance; (c) management; (d) operations; (e) finances; (f) policies; (g) business arrangements; (h) staffing; (i) Medicaid participation or contracts; or (j) compliance with federal and state law. (6) "Covered service" means a health or medical service or benefit covered through the Medicaid program. (7) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936, as amended. (8) "Immediate family member" means the same as that term, or the term "member of household", is defined in 42 C.F.R. Sec. 1001.2. (9) "Improper payment" means: (a) a payment: (i) the state makes to a risk contractor in error, or in excess; (ii) a risk contractor makes, or another person makes on behalf of a risk contractor: (A) that should not be made; (B) that is made in an incorrect or duplicate amount; (C) that is inconsistent with the risk contractor's contract with the department, applicable federal and state law, evidence-based clinical guidelines the division approves, generally accepted accounting principles, or guidance issued by the division; (D) to or on behalf of a Medicaid provider, or the Medicaid provider's affiliated person, agent, or subcontractor who was deceased on the date the cost was accrued; or (E) for a covered service that is: (I) for an individual who, on the date of service, was deceased or incarcerated; (II) not a Medicaid-covered service within the scope of the risk contractor's contract; (III) not received by the intended individual as indicated on the claim; (IV) not medically necessary; (V) in a setting or place of service contrary to the Medicaid program; (VI) not clearly, accurately, and sufficiently supported by the medical record of the individual receiving the covered service; or (VII) not supported by a clean claim that is complete, accurate, timely, properly coded and formatted, and submitted consistent with applicable claims standards and billing instructions; or (iii) made to a Medicaid provider under a sub-capitation or risk-sharing arrangement where the Medicaid provider failed to submit timely, complete, and accurate data necessary to support encounter data reporting; (iv) made to a Medicaid provider that, on the date of service: (A) was not properly enrolled or certified to participate in the Medicaid program; (B) did not have a valid Medicaid provider agreement; or (C) was not certified as meeting applicable requirements or conditions of participation; or (v) made to a Medicaid provider for a covered service associated with missing, incomplete, erroneous, or unvalidated encounter data; (b) a cost or expense a risk contractor, or risk contractor's subcontractor or agent on the risk contractor's behalf, incurs: (i) in error; (ii) by omission; (iii) as a result of a deficiency in: (A) claims adjudication; (B) accounting systems and procedures; (C) internal controls over financial reporting; (D) information systems; or (E) electronic data interchange with Medicaid providers; or (iv) as a result of incomplete or inadequate adherence to generally accepted accounting principles; (c) a payment, incurred expense, transfer, or other transaction for which an independent auditor, the inspector general, or the department determines, consistent with generally accepted accounting principles and generally accepted auditing standards, that: (i) a risk contractor lacks sufficient audit evidence; or (ii) financial information about the payment, expense, transfer, or transaction is misrepresented, misstated, unreliable, falsified, erroneous, incomplete, or missing, regardless of the pervasiveness or materiality to the risk contractor's financial statements or financial position; (d) (i) a risk contractor's payment, incurred expense, transfer, or transaction during the period covered by an independent auditor's adverse opinion; or (ii) the payments, expenses, transfers, and transactions an independent auditor who gives an adverse opinion, in consultation with the state Medicaid director, is able to reasonably determine resulted in the adverse opinion; (e) if an independent auditor issues a disclaimer of opinion, all payments made, expenses incurred, transfers, and transactions of a risk contractor during the intended period of the uncompleted or prevented audit, unless, no more than 60 days after the date on which the independent auditor issues the disclaimer: (i) all impediments to the performance of an independent audit are eliminated to the satisfaction of the independent auditor and the Medicaid director; (ii) the independent auditor conducts and completes a full, independent audit consistent with generally accepted auditing standards; and (iii) the independent auditor issues a complete audit report with a qualified or unqualified opinion; (f) a payment, expense incurred, transfer, or transaction incident to or contributing to, directly or indirectly, the exceptions or qualified matters identified in an independent auditor's qualified opinion; (g) a payment, incurred expense, transfer, or transaction made as a result, in whole or in part, of a conflict of interest; (h) the excess amount of a payment that a Medicaid provider makes to a related party as a result of higher rates, favorable reimbursement policies or practices, financial incentives, more favorable terms and conditions, a preference in medical and utilization management practices, or preferences in market shares; (i) a payment made: (i) for goods or services, or intracompany or intercompany services, determined on any basis other than or higher than a market-competitive, arm's length arrangement, with no financial favoritism; and (ii) by or on behalf of a risk contractor for the risk contractor's: (A) parent organization; (B) subcontractor; (C) supplier; (D) manufacturer; (E) distributor; or (F) vendor; or (j) a payment made to, or for the costs of, a person listed in: (i) the United States Department of Health and Human Services' Office of Inspector General's List of Excluded Individuals/Entities; (ii) the CMS National Plan and Provider Enumeration System exclusion list; (iii) the United States Social Security Administration death master file; (iv) exclusions or disqualifications from the General Services Administration's System for Award Management; or (v) another database described in: (A) an agreement between the division and a managed care organization to provide goods and services in the Medicaid program; or (B) federal or state law or regulations. (10) "Inspector general" means the inspector general of Medicaid services appointed under Section 63A-13-201. (11) "Key employee" means an employee with authority over: (a) clinical operations; (b) medical management; (c) compliance; (d) reporting; (e) program integrity; (f) contracting; (g) network management; (h) claims processing; (i) utilization review; (j) financial management; (k) Medicaid provider relations; (l) government relations; or (m) any other function material to the administration of a Medicaid risk contract. (12) "Managed care organization" means a comprehensive full risk managed care delivery system that contracts with the Medicaid program or the Children's Health Insurance Program to deliver health care through a managed care plan. (13) "Managed care plan" means a risk-based delivery service model authorized by Section
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