---
kind: "range"
citation: "5 C.F.R. §§ 890.1060–890.1072"
title: "5"
from: "890.1060"
to: "890.1072"
count: 13
url: "https://uscodex.org/cfr/5/890.1060..890.1072"
---

# §890.1060. Purpose and scope of civil monetary penalties and assessments.

- (a) **Civil monetary penalty.** A civil monetary penalty is an amount that OPM may impose on a health care provider who commits one of the violations listed in [§ 890.1061](/cfr/5/890.1061.md). Penalties are intended to protect the integrity of FEHBP by deterring repeat violations by the same provider and by reducing the likelihood of future violations by other providers.
- (b) **Assessment.** An assessment is an amount that OPM may impose on a provider, calculated by reference to the claims involved in the underlying violations. Assessments are intended to recognize monetary losses, costs, and damages sustained by OPM as the result of a provider's violations.
- (c) **Definitions.** In [§§ 890.1060 through 890.1072](/cfr/5/890.1060..890.1072.md):

  Penalty means civil monetary penalty; and

  Penalties and assessments may connote the singular or plural forms of either of those terms, and may represent either the conjunctive or disjunctive sense.

- (d) **Relationship to debarment and suspension.** In addition to imposing penalties and assessments, OPM may concurrently debar or suspend a provider from participating in the FEHBP on the basis of the same violations.
- (e) **Relationship to other penalties provided by law.** The penalties, assessments, debarment, and suspension imposed by OPM are in addition to any other penalties that may be prescribed by law or regulation administered by an agency of the Federal Government or any State.

# §890.1061. Bases for penalties and assessments.

- (a) **Improper claims.** OPM may impose penalties and assessments on a provider if a claim presented by that provider for payment from FEHBP funds meets the criteria set forth in [5 U.S.C. 8902a(d)(1)](/usc/5/8902a.md?p=d-1).
- (b) **False or misleading statements.** OPM may impose penalties and assessments on a provider who makes a false statement or misrepresentation as set forth in [5 U.S.C. 8902a(d)(2)](/usc/5/8902a.md?p=d-2).
- (c) **Failing to provide claims-related information.** OPM may impose penalties and assessments on a provider who knowingly fails to provide claims-related information as otherwise required by law.

# §890.1062. Deciding whether to impose penalties and assessments.

- (a) **Authority of debarring official.** The debarring official has discretionary authority to impose penalties and assessments in accordance with [5 U.S.C. 8902a](/usc/5/8902a.md) and this subpart.
- (b) **Factors to be considered.** In deciding whether to impose penalties and assessments against a provider that has committed one of the violations identified in [§ 890.1061](/cfr/5/890.1061.md), OPM must consider:
  - (1) The number and frequency of the provider's violations;
  - (2) The period of time over which the violations were committed;
  - (3) The provider's culpability for the specific conduct underlying the violations;
  - (4) The nature of any claims involved in the violations and the circumstances under which the claims were presented to FEHBP carriers;
  - (5) The provider's history of prior offenses or improper conduct, including any actions that could have constituted a basis for a suspension, debarment, penalty, or assessment by any Federal or State agency, whether or not any sanction was actually imposed;
  - (6) The monetary amount of any damages, losses, and costs, as described in [§ 890.1064(c)](/cfr/5/890.1064.md?p=c), attributable to the provider's violations; and
  - (7) Such other factors as justice may require.
- (c) **Additional factors when penalty or assessment is based on provisions of § 890.1061(b) or (c).** In the case of violations involving false or misleading statements or the failure to provide claims-related information, OPM must also consider:
  - (1) The nature and circumstances of the provider's failure to properly report information; and
  - (2) The materiality and significance of the false statements or misrepresentations the provider made or caused to be made, or the information that the provider knowingly did not report.

# §890.1063. Maximum amounts of penalties and assessments.


OPM may impose penalties and assessments in amounts not to exceed those set forth in U.S.C. 8902a(d).


# §890.1064. Determining the amounts of penalties and assessments to be imposed on a provider.

- (a) **Authority of debarring official.** The debarring official has discretionary authority to set the amounts of penalties and assessments in accordance with law and this subpart.
- (b) **Factors considered in determining amounts of penalties and assessments.** In determining the amounts of penalties and assessments to impose on a provider, the debarring official must consider:
  - (1) The Government's interests in being fully compensated for all damages, losses, and costs associated with the provider's violations, including:
    - (i) Amounts wrongfully paid from FEHBP funds as the result of the provider's violations and interest on those amounts, at rates determined by the Department of the Treasury;
    - (ii) All costs incurred by OPM in investigating a provider's sanctionable misconduct; and
    - (iii) All costs incurred in OPM's administrative review of the case, including every phase of the administrative sanctions processes described by this subpart;
  - (2) The Government's interests in deterring future misconduct by health care providers;
  - (3) The provider's personal financial situation, or, in the case of an entity, the entity's financial situation;
  - (4) All of the factors set forth in § [890.1062(b)](/cfr/5/890.1062.md?p=b) and [(c)](/cfr/5/890.1062.md?p=c); and
  - (5) The presence of aggravating or less serious circumstances, as described in [paragraphs (c)(1) through (c)(7)](#c-1..c-7) of this section.
- (c) **Aggravated and less serious circumstances.** The presence of aggravating circumstances may cause OPM to impose penalties and assessments at a higher level within the authorized range, while less serious violations may warrant sanctions of relatively lower amounts. [Paragraphs (c)(1) through (c)(7)](#c-1..c-7) of this section provide examples of aggravated and less serious violations. These examples are illustrative only, and are not intended to represent an exhaustive list of all possible types of violations.
  - (1) The existence of many separate violations, or of violations committed over an extended period of time, constitutes an aggravating circumstance. OPM may consider conduct involving a small number of violations, committed either infrequently or within a brief period of time, to be less serious.
  - (2) Violations for which a provider had direct knowledge of the material facts (for example, submitting claims that the provider knew to contain false, inaccurate, or misleading information), or for which the provider did not cooperate with OPM's or an FEHBP carrier's investigations, constitute aggravating circumstances. OPM may consider violations where the provider did not have direct knowledge of the material facts, or in which the provider cooperated with post-violation investigative efforts, to be less serious.
  - (3) Violations resulting in substantial damages, losses, and costs to OPM, the FEHBP, or FEHBP-covered persons constitute aggravating circumstances. Violations producing a small or negligible overall financial impact may be considered to be less serious.
  - (4) A pattern of conduct reflecting numerous improper claims, high-dollar false claims, or improper claims involving several types of items or services constitutes aggravating circumstances. OPM may consider a small number of improper claims for relatively low dollar amounts to be less serious.
  - (5) Every violation involving any harm, or the risk of harm, to the health and safety of an FEHBP enrollee, must be considered an aggravating circumstance.
  - (6) Any prior violation described in [§ 890.1062(b)(5)](/cfr/5/890.1062.md?p=b-5) constitutes an aggravating circumstance. OPM may consider repeated or multiple prior violations to represent an especially serious form of aggravating circumstances.
  - (7) OPM may consider other circumstances or actions to be aggravating or less serious within the context of an individual case, as the interests of justice require.

# §890.1065. Deciding whether to suspend or debar a provider in a case that also involves penalties and assessments.


In a case where both penalties and assessments and debarment are proposed concurrently, OPM must decide the proposed debarment under the same criteria and procedures as if it had been proposed separately from penalties and assessments.


# §890.1066. Notice of proposed penalties and assessments.

- (a) **Written notice.** OPM must inform a provider of proposed penalties and assessments by written notice, sent via certified mail with return receipt requested, to the provider's last known street or post office address. OPM may, at its discretion, use an express service that furnishes a verification of delivery instead of postal mail.
- (b) **Statutory limitations period.** OPM must send the notice to the provider within 6 years of the date on which the claim underlying the proposed penalties and assessments was presented to an FEHBP carrier. If the proposed penalties and assessments do not involve a claim presented for payment, OPM must send the notice within 6 years of the date of the actions on which the proposed penalties and assessments are based.
- (c) **Contents of the notice.** OPM's notice must contain, at a minimum:
  - (1) The statement that OPM proposes to impose penalties and/or assessments against the provider;
  - (2) Identification of the actions, conduct, and claims that comprise the basis for the proposed penalties and assessments;
  - (3) The amount of the proposed penalties and assessments, and an explanation of how OPM determined those amounts;
  - (4) The statutory and regulatory bases for the proposed penalties and assessments; and
  - (5) **Instructions for responding to the notice, including specific explanations regarding—**
    - (i) The provider's right to contest the imposition and/or amounts of penalties and assessments before they are formally imposed; and
    - (ii) OPM's right, if the provider does not contest the proposed penalties and assessments within 30 days of the date he receives the notice, to implement them immediately without further administrative appeal or recourse.
- (d) **Proposing debarment in the same notice.** OPM may propose a provider's debarment in the same notice that also proposes penalties and assessments. In this case, the notice must also provide the elements of information required to appear in a notice of proposed debarment under [§ 890.1006(b)](/cfr/5/890.1006.md?p=b).
- (e) **Procedures if the notice cannot be delivered.** OPM must apply the provisions of [§ 890.1006(f)](/cfr/5/890.1006.md?p=f) if the notice of proposed penalties and assessments cannot be delivered as originally addressed.
- (f) **Sending notice by electronic means.** [Reserved]

# §890.1067. Provider contests of proposed penalties and assessments.

- (a) **Contesting proposed sanctions.** A provider may formally contest the proposed penalties and assessments by sending a written notice to the debarring official within 30 days after receiving the notice described in [§ 890.1066](/cfr/5/890.1066.md). The debarring official must apply the administrative procedures set forth in §§ [890.1069](/cfr/5/890.1069.md) and [890.1070](/cfr/5/890.1070.md) to decide the contest.
- (b) **Contesting debarments and financial sanctions concurrently.** If OPM proposes debarment and penalties and assessments in the same notice, the provider may contest both the debarment and the financial sanctions in the same proceeding. If the provider pursues a combined contest, the requirements set forth in [§§ 890.1022 through 890.1024](/cfr/5/890.1022..890.1024.md), as well as this section, apply.
- (c) **Settling or compromising proposed sanctions.** The debarring official may settle or compromise proposed sanctions at any time before issuing a final decision under [§ 890.1070](/cfr/5/890.1070.md).

# §890.1068. Effect of not contesting proposed penalties and assessments.

- (a) **Proposed sanctions may be implemented immediately.** In the absence of a timely response by a provider as required in the notice described in [§ 890.1066](/cfr/5/890.1066.md), the debarring official may issue a final decision implementing the proposed financial sanctions immediately, without further procedures.
- (b) **Debarring official sends notice after implementing sanctions.** Immediately upon issuing a final decision under [paragraph (a)](#a), the debarring official must send the provider written notice, via certified return receipt mail or express delivery service, stating:
  - (1) The amount of penalties and assessments imposed;
  - (2) The date on which they were imposed; and
  - (3) The means by which the provider may pay the penalties and assessments.
- (c) **No appeal rights.** A provider may not pursue a further administrative or judicial appeal of the debarring official's final decision implementing any sanctions if a timely contest was not filed in response to OPM's notice under [§ 890.1066](/cfr/5/890.1066.md).

# §890.1069. Information the debarring official must consider in deciding a provider's contest of proposed penalties and assessments.

- (a) **Documentary material and written arguments.** As part of a provider's contest, the provider must furnish a written statement of reasons why the proposed penalties and assessments should not be imposed and/or why the amounts proposed are excessive.
- (b) **Mandatory disclosures.** In addition to any other information submitted during the contest, the provider must inform the debarring official in writing of:
  - (1) Any existing, proposed, or prior exclusion, debarment, penalty, assessment, or other sanction that was imposed by a Federal, State, or local government agency, including any administrative agreement that purports to affect only a single agency; and
  - (2) Any current or prior criminal or civil legal proceeding that was based on the same facts as the penalties and assessments proposed by OPM.
- (c) **In-person appearance.** A provider may request a personal appearance (in person, by telephone conference, or through a representative) to provide testimony and oral arguments to the debarring official.

# §890.1070. Deciding contests of proposed penalties and assessments.

- (a) **Debarring official reviews entire administrative record.** After the provider submits the information and evidence authorized or required by [§ 890.1069](/cfr/5/890.1069.md), the debarring official shall review the entire official record to determine if the contest can be decided without additional administrative proceedings, or if an evidentiary hearing is required to resolve disputed material facts.
- (b) **Previously determined facts.** Any facts relating to the basis for the proposed penalties and assessments that were determined in prior due process proceedings are binding on the debarring official in deciding the contest. “Prior due process proceedings” are those set forth in [§ 890.1025(a)(1) through (4)](/cfr/5/890.1025.md?p=a-1..a-4).
- (c) **Deciding the contest without further proceedings.** To decide the contest without further administrative proceedings, the debarring official must determine that:
  - (1) The preponderance of the evidence in the administrative record as a whole demonstrates that the provider committed a sanctionable violation described in [§ 890.1061](/cfr/5/890.1061.md); and
  - (2) The evidentiary record contains no bona fide dispute of any fact material to the proposed financial sanction. A “material fact” is a fact essential to determining whether a provider committed a sanctionable violation for which penalties and assessments may be imposed.
- (d) **Final decision without further proceedings.** If the debarring official determines that paragraphs [(c)(1)](#c-1) and [(c)(2)](#c-2) of this section both apply, a final decision may be issued, imposing financial sanctions in amounts not exceeding those proposed in the notice to the provider described in [§ 890.1066](/cfr/5/890.1066.md).
- (e) **Insufficient evidence.** If the debarring official determines that a preponderance of the evidence does not demonstrate that the provider committed a sanctionable violation described in [§ 890.1061](/cfr/5/890.1061.md), the notice of proposed sanctions described in [§ 890.1066](/cfr/5/890.1066.md) must be withdrawn.
- (f) **Disputed material facts.** If the debarring official determines that the administrative record contains a bona fide dispute about any fact material to the proposed sanction, he must refer the case for a fact-finding hearing to resolve the disputed fact or facts. The provisions of § [890.1027(b)](/cfr/5/890.1027.md?p=b) and [(c)](/cfr/5/890.1027.md?p=c), [890.1028](/cfr/5/890.1028.md), and [890.1029(a)](/cfr/5/890.1029.md?p=a) and [(b)](/cfr/5/890.1029.md?p=b) will govern such a hearing.
- (g) **Final decision after fact-finding hearing.** After receiving the report of the fact-finding hearing, the debarring official must apply the provisions of paragraphs [(c)](#c), [(d)](#d), and [(e)](#e) of this section to reach a final decision on the provider's contest.

# §890.1071. Further appeal rights after final decision to impose penalties and assessments.


If the debarring official's final decision imposes any penalties and assessments, the affected provider may appeal it to the appropriate United States district court under the provisions of [5 U.S.C. 8902a(h)(2)](/usc/5/8902a.md?p=h-2).


# §890.1072. Collecting penalties and assessments.

- (a) **Agreed-upon payment schedule.** At the time OPM imposes penalties and assessments, or the amounts are settled or compromised, the provider must be afforded the opportunity to arrange an agreed-upon payment schedule.
- (b) **No agreed-upon payment schedule.** In the absence of an agreed-upon payment schedule, OPM must collect penalties and assessments under its regular procedures for resolving debts owed to the Employees Health Benefits Fund.
- (c) **Offsets.** As part of its debt collection efforts, OPM may request other Federal agencies to offset the penalties and assessments against amounts that the agencies may owe to the provider, including Federal income tax refunds.
- (d) **Civil lawsuit.** If necessary to obtain payment of penalties and assessments, the United States may file a civil lawsuit as set forth in [5 U.S.C. 8902(i)](/usc/5/8902.md?p=i).
- (e) **Crediting payments.** OPM must deposit payments of penalties and assessments into the Employees Health Benefits Fund.