Page 12

(b) A provider that does not repay an overpayment within 12 months of the order establishing the overpayment or comply with a repayment plan shall be subject to one of the following: (i) for a provider receiving an ESG, involuntary recoupment of an ESG pursuant to Subsection R986-700-742(3), regardless of whether the provider agrees to recoupment; (ii) voluntary recoupment of a CC payment, if the child care provider agrees to the voluntary recoupment; (iii) the Department may withhold CC payment until the overpayment is paid in full; or (c) the Department may file an abstract of the final administrative order and pursue a lien pursuant to Section 35A-3- 606. (5) A provider shall not penalize any current CC client as a result of the Department's collection action. (i) "Penalize" includes: (A) requiring a client to pay new or additional fees for service, excluding the copayment or amount exceeding the CC payment; or (B) terminating services with the client. (6) If the client or provider files a timely appeal, collection procedures will be stayed during the appeal process. R986-700-732. Intentional Program Violation. (1) An Intentional Program Violation (IPV) occurs when a person: (a) either personally or through a representative; (b) intentionally, knowingly, or recklessly, as defined in Section 76-2-103 concerning definitions of culpable conduct; (c) violates a program rule, or helps another person violate a program rule; (d) in an attempt to: (i) obtain, (ii) maintain, (iii) increase, or (iv) prevent the decrease or termination of CC payment. (2) The evidentiary standard for determining an IPV is clear and convincing evidence. (3) Acts which may constitute an IPV include: (a) making a false or misleading statement; (b) misrepresenting, concealing, or withholding information; (c) posing as someone else; (d) taking, using, or accepting a CC payment the person knew they were not eligible to receive, (e) not reporting the receipt of a CC payment the person knew they were not eligible to receive; (f) not reporting a material change as required by Sections R986-700-727 and R986-100-113; and (g) committing an act intended to mislead, misrepresent, conceal or withhold a fact, or propound a falsity. (4) When an IPV is alleged, the Department may: (a) refer the case for criminal prosecution; (b) in the case of a client IPV, issue a notice of agency action finding the person committed an IPV, which the person may appeal through the fair hearing process set forth in Rule R986-100; (c) in the case of a provider IPV which occurred before May 8, 2020, or for which the Director of OCC does not recommend disqualifying the provider, in addition to any increased monitoring or remedial action pursuant to Subsection R986- 700-727(6), issue a notice of agency action establishing an overpayment and penalty finding the provider committed an IPV, which the provider may appeal via the fair hearing process set forth in Rule R986-100; or (d) in the case of a provider IPV for which the Director of OCC recommends disqualifying the provider, in addition to any increased monitoring or remedial action pursuant to Subsection R986-700-727(6), refer the case for an administrative disqualification hearing (ADH) pursuant to Section R986-700-733. (5) The Department may not disqualify a provider unless an ADH has been held and the ALJ has ordered disqualification or the provider has been criminally convicted. (6) The Department may not make a concurrent referral for an ADH and a criminal prosecution. (a) If a case referred for criminal prosecution is dismissed or referred back to the Department without prosecution, the Department may issue a notice of agency action or refer the case for an ADH pursuant to Subsection R986-700-732(4). (7) A provider found to have committed an IPV will be responsible for repayment of both any related overpayment and a civil penalty pursuant to Subsection 35A-3-603(4). R986-700-733. Administrative Disqualification Hearing (ADH). (1) An ADH will be held if the Director of OCC recommends disqualifying a provider pursuant Subsections R986-700- 726(2), R986-700-730(4), or R986-700-732(4). If the provider does not participate in the ADH, the ALJ will make a decision based solely on the evidence before the ALJ. (2) The hearing procedures set forth in Rule R986-100 apply to an ADH unless otherwise specified or inconsistent with this section. (3) The Division of Adjudication will schedule any ADH. Each party will be given 30-days' notice of the date and time of the ADH.