EARLY INTERVENTION EARLY INTERVENTION PROGRAM FOR INFANTS PROGRAM FOR INFANTS AND TODDLERS WITH AND TODDLERS WITH

DISABILITIES-MEDICAID DISABILITIES-MEDICAID COMPLIANCE COMPLIANCE

3/30/113/30/11JAMES G. SHEEHANJAMES G. SHEEHAN

NEW YORK MEDICAID INSPECTOR NEW YORK MEDICAID INSPECTOR GENERALGENERAL

James.Sheehan@OMIG.NY.GOVJames.Sheehan@OMIG.NY.GOV518-473-3782518-473-3782

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20112011

• GOVERNOR CUOMO’S STATE OF THE GOVERNOR CUOMO’S STATE OF THE STATE (January 5, 2011):STATE (January 5, 2011):– MEDICAID AS ONE OF THREE PRIMARY FOCUS MEDICAID AS ONE OF THREE PRIMARY FOCUS

AREASAREAS– NOT BUDGET CUTTING OR TRIMMING, BUT -NOT BUDGET CUTTING OR TRIMMING, BUT -

REINVENTING, REORGANIZING, AND REINVENTING, REORGANIZING, AND REDESIGNING PROGRAMS AND AGENCIESREDESIGNING PROGRAMS AND AGENCIES

– MEDICAID REDESIGN TEAM MEDICAID REDESIGN TEAM – REQUIRES THOROUGH REVIEW OF MEDICAID REQUIRES THOROUGH REVIEW OF MEDICAID

PROGRAMS AND AGENCY PRACTICESPROGRAMS AND AGENCY PRACTICES– ON-TIME BUDGET 2011ON-TIME BUDGET 2011

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PURPOSE OF OMIG WEBINARS-PURPOSE OF OMIG WEBINARS-FULFILLING OMIG’S DUTY IN FULFILLING OMIG’S DUTY IN NYS PHL SECTION 32 -NYS PHL SECTION 32 -•§ 32(17) “ . . . to conduct educational programs for

medical assistance program providers, vendors, contractors and recipients designed to limit fraud and abuse within the medical assistance program.”

• These programs will be scheduled as needed by the provider community. Your feedback on this program, and suggestions for new topics are appreciated.

• Next program: Preschool/School Supportive Health Services Program (SSHSP) Medicaid-in-Education

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GOALS OF THIS PROGRAMGOALS OF THIS PROGRAM

• Education for Medicaid providers and Education for Medicaid providers and municipal/county governmental entities on municipal/county governmental entities on compliance with Medicaid payment compliance with Medicaid payment requirementsrequirements

• Federal funding brings federal oversight-Federal funding brings federal oversight-provider and municipality responsibilities provider and municipality responsibilities under Medicaidunder Medicaid

• Responsibilities of OMIG and DOHResponsibilities of OMIG and DOH

• Audit process and approach Audit process and approach

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CONCERNS OF THIS CONCERNS OF THIS PROGRAMPROGRAM• Complexity of Early Intervention rules-, Complexity of Early Intervention rules-,

Medicaid, Private Insurance, Education Medicaid, Private Insurance, Education

• Complexity of Early Intervention Complexity of Early Intervention reimbursement-Medicaid, state/county, reimbursement-Medicaid, state/county, (through localities and state general fund) (through localities and state general fund) privateprivate

• Not a choice-counties obligated to assure Not a choice-counties obligated to assure provision of early intervention services, provision of early intervention services, obligated to address billing and payment obligated to address billing and payment issuesissues

66

EARLY INTERVENTION-EARLY INTERVENTION-MEDICAIDMEDICAID

• Total Medicaid EI expenditures in NY Total Medicaid EI expenditures in NY $262 million (2010)$262 million (2010)

• Federal share $131 millionFederal share $131 million

• NY City=$205 million total NY City=$205 million total expenditures expenditures

77

Early Intervention – for “infants Early Intervention – for “infants and toddlers with disabilities” and toddlers with disabilities” • (1) Are experiencing developmental delays, as (1) Are experiencing developmental delays, as

measured by appropriate diagnostic instruments measured by appropriate diagnostic instruments and procedures, in one or more of the following and procedures, in one or more of the following areas: areas: – (i) Cognitive development. (i) Cognitive development. – (ii) Physical development, including vision and hearing. (ii) Physical development, including vision and hearing. – (iii) Communication development.(iii) Communication development.– (iv) Social or emotional development.(iv) Social or emotional development.– (v) Adaptive development; (v) Adaptive development;

• (2) Have a diagnosed physical or mental (2) Have a diagnosed physical or mental condition that has a high probability of resulting condition that has a high probability of resulting in developmental delay in developmental delay

88

THE EARLY INTERVENTION THE EARLY INTERVENTION PROGRAM FEDERAL LAW AND PROGRAM FEDERAL LAW AND REGULATIONSREGULATIONS

• Individuals with Disabilities Education Individuals with Disabilities Education ActAct, Part C, Sec. 631, as amended; , Part C, Sec. 631, as amended; 20 U.S.C. 1431 et seq.20 U.S.C. 1431 et seq.

• 34 CFR 30334 CFR 303Available: Available: http://www2.ed.gov/programs/osepeihttp://www2.ed.gov/programs/osepeip/legislation.htmlp/legislation.html

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EARLY INTERVENTION STATE EARLY INTERVENTION STATE LAW AND REGULATIONSLAW AND REGULATIONS

• Title II-A of Article 25 of the Public Health LawTitle II-A of Article 25 of the Public Health Law

• Subpart 69-4: Regulations for the Early InterveSubpart 69-4: Regulations for the Early Intervention Programntion Program (10 NYCRR Part 69-4) (10 NYCRR Part 69-4)

• http://www.health.state.ny.us/community/http://www.health.state.ny.us/community/infants_children/early_intervention/infants_children/early_intervention/regulations.htmregulations.htm

1010

CORE MEDICAID CORE MEDICAID REQUIREMENTS 18 NYCRR REQUIREMENTS 18 NYCRR 504.3 FOR ALL PROVIDERS504.3 FOR ALL PROVIDERS• Medicaid is payment in full-no balance billingMedicaid is payment in full-no balance billing• Bill for only services which are medically necessary Bill for only services which are medically necessary

and actually furnishedand actually furnished• Bill only for services to eligible personsBill only for services to eligible persons• Permit audits. . . of all books and records relating to Permit audits. . . of all books and records relating to

services furnished and payments received, services furnished and payments received, including patient histories, case files, and patient-including patient histories, case files, and patient-specific dataspecific data

• Provide information in relation to any claim . . . Provide information in relation to any claim . . . Which is true, accurate, and complete.Which is true, accurate, and complete.

• ““to comply with the rules, regulations, and official to comply with the rules, regulations, and official directives of the department.”directives of the department.”

1111

WHO MAY AUDIT MEDICAID WHO MAY AUDIT MEDICAID EARLY INTERVENTION EARLY INTERVENTION PAYMENTS?PAYMENTS?• Office of Medicaid Inspector General (NY)Office of Medicaid Inspector General (NY)• HHS and Education Office of Inspector General HHS and Education Office of Inspector General

(federal)(federal)• Medicaid Fraud Control Unit (NY)Medicaid Fraud Control Unit (NY)• Medicaid Integrity Contractor (CMS)Medicaid Integrity Contractor (CMS)• NYS Department of Health fiscal audits, which may

include a site visit, of all or any of the following: municipalities, service coordinators, evaluators, or providers of early intervention services. (also performed by contractors)

• Office of State Comptroller (NY)Office of State Comptroller (NY)• Counties and County ComptrollersCounties and County Comptrollers• GAOGAO

1212

OTHER AUDIT/INVESTIGATIVE OTHER AUDIT/INVESTIGATIVE RISKSRISKS

• New York Attorney General actions New York Attorney General actions under the New York False Claims Actunder the New York False Claims Act

• Whistleblower actions under the New Whistleblower actions under the New York False Claims Act (these cases York False Claims Act (these cases limited to private entities)limited to private entities)

• Claims under the federal False Claims under the federal False Claims ActClaims Act

1313

WHO MAY BE AUDITED?WHO MAY BE AUDITED?

• Municipality (county) submitting Municipality (county) submitting claimclaim

• Contracted provider of servicesContracted provider of services

• Service bureau, billing service, or Service bureau, billing service, or electronic media billers preparing or electronic media billers preparing or submitting claims (See 18 NYCRR submitting claims (See 18 NYCRR 504.9) 504.9)

1414

Federal HHS OIG AUDIT 2010 - Review of Early Intervention Services Costs Claimed by New Jersey to the Medicaid Program

• the child receiving the related service was enrolled in the Medicaid program;

• the related service was covered under the program;

• the related service was listed in the child’s treatment plan (Individualized Family Service Plan); and

• the State agency paid the claims within 1 year of the date of receipt.

• http://oig.hhs.gov/oas/reports/region2/20801019.pdf

1515

RESULT OF 2010 HHS/OIG RESULT OF 2010 HHS/OIG AUDIT OF NEW JERSEYAUDIT OF NEW JERSEY• Claims for early intervention submitted as a result

of New Jersey’s “contract with Covansys did not always comply with Federal and State regulations. Of the 100 claims in our random sample, 94 complied with Federal and State requirements, but 6 did not. Of the six noncompliant claims, two claims contained services that were not provided or supported, and four claims were not timely submitted. These deficiencies occurred because the State did not effectively monitor the early intervention program for compliance with certain federal and state requirements.”

• http://oig.hhs.gov/oas/reports/region2/20801019.pdf

1616

WHAT YOU HAVE PROMISED TO WHAT YOU HAVE PROMISED TO DODO

•Application for Approval of Individual Evaluators, Service Providers and Service Coordinators

•DOH-3735(3/05)

•Codified in 10 NYCRR 69-4.5

• Re-application process not yet Re-application process not yet implementedimplemented

1717

WHAT YOU HAVE PROMISED WHAT YOU HAVE PROMISED (AND WE CHECK) (AND WE CHECK)

• Attest to character and competence; (how determine?)• Assure the maintenance of current state licensure and/or

certification and demonstrated proficiency in early childhood development

• Assure that he/she will notify the Department within two working days of suspension, expiration, or revocation of licensure, certification or registration;

• Participate in in-service training or other forms of professional training and education related to the delivery of early intervention services;

• Agree to enter into an approved Medicaid Provider Agreement and to reassign Medicaid benefits to the local county early intervention program or City of New York early intervention program;

• Assure compliance with the confidentiality requirements set forth in regulation.

• DOH-3735(3/05) 10 NYCRR 69-4.5 10 NYCRR 69-4.5

1818

WHAT YOU HAVE PROMISEDWHAT YOU HAVE PROMISED

– Keep any records necessary to disclose the extent of services the Provider furnishes to recipients receiving assistance under the New York State Plan for Medical Assistance;

– On request, furnish the New York State Department of Health, or its designee, and the Secretary of the United States Department of Health and Human Services, and the New York State Medicaid Fraud Control Unit any information maintained under paragraph (A) (1), and any information regarding any Medicaid claims reassigned by the Provider to the local early intervention agency;

– Abide by all applicable Federal and State laws and regulations, including the Social Security Act, New York State Social Services Law, part 42 of the Code of Federal Regulations and Title 18 of the Codes, Rules and Regulations of the State of New York

– DOH-3735(3/05) 10 NYCRR 69-4.5 10 NYCRR 69-4.5

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Limiting fraud and abuse within the Medicaid program

• ““Fraud means an Fraud means an intentional intentional deception or misrepresentationdeception or misrepresentation made with the knowledge that the made with the knowledge that the deception could result in an deception could result in an unauthorized benefit to the provider unauthorized benefit to the provider or another person . . .” 18 NYCRR or another person . . .” 18 NYCRR 515.1 515.1

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Limiting fraud and abuse within the Medicaid program• ““Abuse means provider practices that are inconsistent with sound Abuse means provider practices that are inconsistent with sound

fiscal, business, or medical practices, and result in an fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet for services that are not medically necessary or that fail to meet professionally recognized standards for health care. It also professionally recognized standards for health care. It also includes recipient practices that result in unnecessary cost to the includes recipient practices that result in unnecessary cost to the Medicaid program.” 42 CFR 455.2-similar provision in state Medicaid program.” 42 CFR 455.2-similar provision in state regulations 18 NYCRR 515.1 (b)regulations 18 NYCRR 515.1 (b)

• ““Abuse” does not require intentional conduct-it is measured by Abuse” does not require intentional conduct-it is measured by objective measuresobjective measures–Medically unnecessary careMedically unnecessary care–Care that fails to meet recognized professional standardsCare that fails to meet recognized professional standards–““provider practices that are inconsistent with sound provider practices that are inconsistent with sound fiscal . . .practices”fiscal . . .practices”–failing to bill other payors failing to bill other payors

2121

THE SIX GREATEST MEDICAID THE SIX GREATEST MEDICAID PROGRAM RISKS IN EI PROGRAM RISKS IN EI • RISK #1: Using excluded persons to provide services reimbursable by RISK #1: Using excluded persons to provide services reimbursable by

Medicaid.Medicaid.

• RISK #2: Failing to refund identified overpayments to the Medicaid RISK #2: Failing to refund identified overpayments to the Medicaid program.program.

• RISK #3: Failing to maintain an “effective” compliance program as RISK #3: Failing to maintain an “effective” compliance program as required by 18 NYCRR 521 (if over $500,000).required by 18 NYCRR 521 (if over $500,000).

• RISK #4: Failing to require and maintain records demonstrating medical RISK #4: Failing to require and maintain records demonstrating medical necessity (as shown by authorization) , authorization, and actual necessity (as shown by authorization) , authorization, and actual performance of a reimbursable service.performance of a reimbursable service.

• RISK #5: Failing to supervise service bureaus or billing companies RISK #5: Failing to supervise service bureaus or billing companies submitting claims or receiving payment.submitting claims or receiving payment.

• RISK #6: Failing to assure proper payment by third parties before RISK #6: Failing to assure proper payment by third parties before Medicaid. Medicaid.

2222

RISK #1: Using Excluded RISK #1: Using Excluded Persons to Provide Services Persons to Provide Services Reimbursable by MedicaidReimbursable by Medicaid

• See OMIG’s Exclusion Webinar on our See OMIG’s Exclusion Webinar on our website at website at http://www.omig.ny.gov/data/images/http://www.omig.ny.gov/data/images/stories/Webinar/6-8-stories/Webinar/6-8-10_exclusion_webinar_final.ppt10_exclusion_webinar_final.ppt

2323

Program ExclusionsProgram Exclusions

• StatuteStatute

• RegulationRegulation

• Federal OIG GuidanceFederal OIG Guidance

• Federal CMS GuidanceFederal CMS Guidance

• State Guidance Mandated by CMSState Guidance Mandated by CMS

• Condition of NY provider enrollment or NY state Condition of NY provider enrollment or NY state contractcontract

• Virtually no case law (criminal, civil, or Virtually no case law (criminal, civil, or administrative) on extent and effect of exclusion administrative) on extent and effect of exclusion

2424

CMS EXCLUSION CMS EXCLUSION REGULATIONREGULATION• “No payment will be made by Medicare,

Medicaid or any of the other federal health care programs for any item or service furnished by an excluded individual or entity, or at the medical direction or on the prescription of a physician or other authorized individual who is excluded when the person furnishing such item or service knew or had reason to know of the exclusion.” 42 CFR 1001.1901 (b)

• Focus is not on the relationship but on the payment.

2525

PROGRAM EXCLUSIONPROGRAM EXCLUSION

• Federal authority and requirement on Federal authority and requirement on providersproviders– No claims based on work of excluded No claims based on work of excluded

personspersons

• Federal authority and mandate on Federal authority and mandate on state Medicaid programsstate Medicaid programs– No state Medicaid claims to CMS based No state Medicaid claims to CMS based

on work of excluded personson work of excluded persons

2626

Impact of Exclusion on Health Impact of Exclusion on Health Care ProvidersCare Providers•Once exclusion occurs, health care providers:Once exclusion occurs, health care providers:

– May employ or contract with excluded persons, May employ or contract with excluded persons, but may not allow excluded persons to provide but may not allow excluded persons to provide or to direct the ordering or delivery of services or to direct the ordering or delivery of services or supplies, or to undertake certain or supplies, or to undertake certain administrative duties (IFSP team evaluator, administrative duties (IFSP team evaluator, service providers, service coordinators, local service providers, service coordinators, local early intervention official) early intervention official)

– Whether or not direct care activities are Whether or not direct care activities are involvedinvolved

– If any part of the task is reimbursed by federal If any part of the task is reimbursed by federal program (Medicaid) dollarsprogram (Medicaid) dollars

– Note: Staffing agencies must screen potential Note: Staffing agencies must screen potential candidates to ensure that they have not been candidates to ensure that they have not been excluded prior to being sent to providers for excluded prior to being sent to providers for work. Providers must develop and enforce work. Providers must develop and enforce contractual agreements to ensure prescreening contractual agreements to ensure prescreening occurs.occurs.

2727

THE NEW YORK STATE THE NEW YORK STATE EXCLUSION REGULATIONEXCLUSION REGULATION

• 18 NYCRR 515.518 NYCRR 515.5 Sanctions effect: (a) Sanctions effect: (a) No payments will be made to or on No payments will be made to or on behalf of any person for the medical behalf of any person for the medical care, services or supplies furnished care, services or supplies furnished by or under the supervision of the by or under the supervision of the person during a period of exclusion person during a period of exclusion or in violation of any condition of or in violation of any condition of participation in the program. participation in the program.

2828

RISK #2: Failing to Refund RISK #2: Failing to Refund Identified Overpayments to the Identified Overpayments to the Medicaid Program- ACA Medicaid Program- ACA § 6402 6402• ‘‘(d) REPORTING AND RETURNING OF

OVERPAYMENTS—• ‘‘(1) IN GENERAL — If a person has received an

overpayment, the person shall—• ‘‘(A) report and return the overpayment to

the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, at the correct address; and

• ‘‘(B) notify the Secretary, State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment . . .

2929

ACA ACA § 6402 and False Claims 6402 and False Claims ActAct

• Failure to report, refund, and explain Failure to report, refund, and explain overpayments within 60 days of overpayments within 60 days of identification can give rise to a claim of identification can give rise to a claim of “knowing” failure to repay under the “knowing” failure to repay under the False Claims ActFalse Claims Act

• See OMIG Webinar: See OMIG Webinar: http://www.omig.ny.gov/data/images/sthttp://www.omig.ny.gov/data/images/stories/Webinar/7-14-ories/Webinar/7-14-10_ppaca_webinar.ppt10_ppaca_webinar.ppt

3030

RETURNING OVERPAYMENTS IN RETURNING OVERPAYMENTS IN NEW YORK TO THE MEDICAID NEW YORK TO THE MEDICAID PROGRAMPROGRAM

• Report and return the overpayment to the State at the correct address

• In New York, Medicaid overpayments should be returned, reported, and explained to OMIG

• OMIG’s correct address:– Office of the Medicaid Inspector General– 800 North Pearl Street– Albany, New York 12204

• May also use DOH adjustment process for multiple funders through Brad Hutton (BJH08@Health.State.NY.US)

3131

VOIDS AND SMALL VOIDS AND SMALL OVERPAYMENTSOVERPAYMENTS• Providers may use void process through CSC (the eMedNY claims

system) for smaller or routine claims. A void is submitted to negate a previously paid claim based upon a billing error or late reimbursement by a primary carrier.

• Overpayments of smaller or routine claims which cannot be attributed to billing error or late reimbursement by a primary carrier should be reported to CSC in writing. These should include known mistakes in CSC or DOH billing and payment programs.

• eMedNY call center: 1-800-343-9000, M – F, 7:30 am – 6:00 pm; eMedNY call center: 1-800-343-9000, M – F, 7:30 am – 6:00 pm; email: HIPAADESK3@csc.comemail: HIPAADESK3@csc.com

• See http://www emedny.org/provider manuals for instructions on See http://www emedny.org/provider manuals for instructions on submission of voids.submission of voids.

• NYEIS System also can be used to initiate report and refund NYEIS System also can be used to initiate report and refund process process

3232

WHAT IS AN WHAT IS AN “OVERPAYMENT”?“OVERPAYMENT”?

• ‘‘‘‘(B) OVERPAYMENT—The term (B) OVERPAYMENT—The term ‘‘overpayment’’ means any ‘‘overpayment’’ means any fundsfunds that a that a personperson receives or retains receives or retains under title XVIII (Medicare) or XIX under title XVIII (Medicare) or XIX (Medicaid) to which the person, after (Medicaid) to which the person, after applicable reconciliation, is applicable reconciliation, is not not entitledentitled under such title” under such title”

• ““fundsfunds” not “” not “benefitbenefit””

3333

WHO MUST RETURN THE WHO MUST RETURN THE OVERPAYMENT?OVERPAYMENT?• A “person” (which includes corporations and A “person” (which includes corporations and

partnerships) who has “received” or “retained” the partnerships) who has “received” or “retained” the overpaymentoverpayment

• Focus on “receipt”; payment need not come Focus on “receipt”; payment need not come directly from Medicaid; if “person” “retains” directly from Medicaid; if “person” “retains” overpayment due the program, violation occurs overpayment due the program, violation occurs

• ““person” includes a an individual program enrollee person” includes a an individual program enrollee or subcontractor as well as a program provider or or subcontractor as well as a program provider or suppliersupplier

• Is a state agency a “person”? Is a state agency a “person”? Vermont v. USVermont v. US 529 529 U.S. 765 (2000); is local government a state U.S. 765 (2000); is local government a state agency? agency? Cook County v. USCook County v. US 123 S. Ct. 1239 (2003) 123 S. Ct. 1239 (2003)

3434

WHEN MUST AN WHEN MUST AN OVERPAYMENT BE RETURNED? OVERPAYMENT BE RETURNED?

• ACA ACA § 6402(d)(2) 6402(d)(2)

• An overpayment must be reported and An overpayment must be reported and returned . . .by the later of -returned . . .by the later of -– (A) the date which is 60 days after the date (A) the date which is 60 days after the date

on which the overpayment was on which the overpayment was identifiedidentified; ; oror

– (B) the date on which any corresponding (B) the date on which any corresponding cost report is due, if applicablecost report is due, if applicable

3535

WHEN IS AN OVERPAYMENT WHEN IS AN OVERPAYMENT “IDENTIFIED”?“IDENTIFIED”?• ““identified” for an organization means that the fact of an identified” for an organization means that the fact of an

overpayment, not the amount of the overpayment has been overpayment, not the amount of the overpayment has been identified. (e.g., patient was dead at time service was identified. (e.g., patient was dead at time service was allegedly rendered, APG claim includes service not allegedly rendered, APG claim includes service not rendered, charge master had code crosswalk error)rendered, charge master had code crosswalk error)

• Compare with language from CMS proposed 42 CFR Compare with language from CMS proposed 42 CFR 401.310 overpayment regulation 67 FR 3665 (1/25/02 draft 401.310 overpayment regulation 67 FR 3665 (1/25/02 draft later withdrawn)later withdrawn)– ““If a provider, supplier, or individual identifies a Medicare If a provider, supplier, or individual identifies a Medicare

payment received in excess of amounts payable under the payment received in excess of amounts payable under the Medicare statute and regulations, the provider, supplier, or Medicare statute and regulations, the provider, supplier, or individual must, within 60 days of identifying or learning of the individual must, within 60 days of identifying or learning of the excess payment, return the overpayment to the appropriate excess payment, return the overpayment to the appropriate intermediary or carrier.” intermediary or carrier.”

3636

WHEN IS AN OVERPAYMENT WHEN IS AN OVERPAYMENT “IDENTIFIED”?“IDENTIFIED”?• Employee or contractor identifies Employee or contractor identifies

overpayment in hotline call or emailoverpayment in hotline call or email• Patient advises that service not receivedPatient advises that service not received• RAC advises that dual eligible Medicare RAC advises that dual eligible Medicare

overpayment has been found overpayment has been found • OMIG sends letter re deceased patient, OMIG sends letter re deceased patient,

unlicensed or excluded employee or unlicensed or excluded employee or ordering physicianordering physician

• Qui tamQui tam or government lawsuit allegations or government lawsuit allegations • Criminal indictment or information Criminal indictment or information

3737

DOCUMENTING GOOD FAITH DOCUMENTING GOOD FAITH EFFORT TO IDENTIFY EFFORT TO IDENTIFY OVERPAYMENTSOVERPAYMENTS

• Create a record to demonstrate to the government Create a record to demonstrate to the government that your organization collected or attempted to that your organization collected or attempted to address allegations of overpayments address allegations of overpayments – Develop standard form to document employee’s internal Develop standard form to document employee’s internal

disclosure disclosure – Document interviews Document interviews – Document evidence and means to determine if credible Document evidence and means to determine if credible – Record employees involved in deliberations and decisions Record employees involved in deliberations and decisions

3838

SOME REASONS FOR SOME REASONS FOR OVERPAYMENTSOVERPAYMENTS

• Duplicate payments of the same service(s). Duplicate payments of the same service(s).

• Incorrect provider payee. Incorrect provider payee.

• Payment for services not authorized on IFSP. Payment for services not authorized on IFSP.

• Services not actually rendered. Services not actually rendered.

• Payment made by a primary insurance. Payment made by a primary insurance.

• Payment for services rendered during a period Payment for services rendered during a period of non-entitlement (transition out of program). of non-entitlement (transition out of program).

3939

MORE REASONS FOR MORE REASONS FOR OVERPAYMENTSOVERPAYMENTS

• Failure to refund credit balancesFailure to refund credit balances

• Excluded ordering or servicing personExcluded ordering or servicing person

• Patient deceased Patient deceased

• Servicing person lacked required license Servicing person lacked required license or certification (e.g., CFY speech or certification (e.g., CFY speech students beyond period of approved students beyond period of approved supervision) supervision)

• Billing system errorBilling system error

4040

GOVERNMENT IS USING DATA GOVERNMENT IS USING DATA TO DETECT OVERPAYMENTS TO DETECT OVERPAYMENTS

• EXCLUDED PERSONSEXCLUDED PERSONS• DECEASED OR TRANSITIONED DECEASED OR TRANSITIONED

ENROLLEESENROLLEES• DECEASED PROVIDERSDECEASED PROVIDERS• CREDIT BALANCESCREDIT BALANCES• WHAT IS GO-BACK OBLIGATION WHAT IS GO-BACK OBLIGATION

WHEN PROVIDER IS PUT ON NOTICE WHEN PROVIDER IS PUT ON NOTICE THAT SYSTEMS ARE DEFICIENT?THAT SYSTEMS ARE DEFICIENT?

4141

““OVERPAYMENT” INCLUDES:OVERPAYMENT” INCLUDES:

• PAYMENT RECEIVED OR RETAINED FOR PAYMENT RECEIVED OR RETAINED FOR SERVICES ORDERED OR PROVIDED BY SERVICES ORDERED OR PROVIDED BY EXCLUDED PERSON EXCLUDED PERSON “no payment will be made by Medicare, Medicaid or any of the other Federal health care programs for any item or service furnished by an excluded individual or entity or at the medical direction or on the prescription of a physician or other authorized individual who is excluded . . .” 42 CFR 1001.1901

4242

OMIG DISCLOSURE OMIG DISCLOSURE GUIDANCEGUIDANCE•“OMIG is not interested in

fundamentally altering the day-to-day business processes of organizations for minor or insignificant matters. Consequently, the repayment of simple, more routine occurrences of overpayment should continue through typical methods of resolution, which may include voiding or adjusting the amounts of claims.”

4343

OMIG SELF DISCLOSURE FORM OMIG SELF DISCLOSURE FORM FROM WWW.OMIG.NY.GOVFROM WWW.OMIG.NY.GOV

• You must provide written, detailed information about your self disclosure. This must include a description of the facts and circumstances surrounding the possible fraud, waste, abuse, or inappropriate payment(s), the period involved, the person(s) involved, the legal and program authorities implicated, and the estimated fiscal impact. (Please refer to the OMIG self-disclosure guidance for additional information.)

4444

RISK #3: Failing to Maintain an RISK #3: Failing to Maintain an “Effective” Compliance “Effective” Compliance Program as Required by 18 Program as Required by 18 NYCRR 521 (if billing over NYCRR 521 (if billing over $500,000 per year)$500,000 per year)• See OMIG Webinar: Evaluating See OMIG Webinar: Evaluating

Effectiveness of Compliance Effectiveness of Compliance ProgramsPrograms

• http://www.omig.ny.gov/data/http://www.omig.ny.gov/data/images/stories/Webinar/images/stories/Webinar/compliance_webinar_11-17-10.pptcompliance_webinar_11-17-10.ppt

4545

Maintaining an “Effective” Maintaining an “Effective” Compliance ProgramCompliance Program

• 18 NYCRR 52118 NYCRR 521

• Requires an 8 step effective Requires an 8 step effective compliance programcompliance program

• Requires an annual certification by Requires an annual certification by December 31 of each yearDecember 31 of each year

• Applies to both governments and Applies to both governments and providers (directly or indirectly)providers (directly or indirectly)

4646

NY Mandatory Compliance NY Mandatory Compliance Program- Prior to ACAProgram- Prior to ACA• NY Medicaid law and regulation: every provider receiving NY Medicaid law and regulation: every provider receiving

more than $500,000 per year must have, and certify to, an more than $500,000 per year must have, and certify to, an effective compliance program with eight mandatory elements. effective compliance program with eight mandatory elements. 18 NYCRR 52118 NYCRR 521

• Statute – November 2006; Regulation – 7/1/09Statute – November 2006; Regulation – 7/1/09

• Mandatory compliance includes Mandatory compliance includes – Audit program, Audit program, – Disclosure to state of overpayments received, when identified Disclosure to state of overpayments received, when identified (over 80 (over 80

disclosures in 2009)disclosures in 2009)– Risk assessment, audit and data analysisRisk assessment, audit and data analysis– Response to issues raised through hotlines, employee issuesResponse to issues raised through hotlines, employee issues

• Effective program required by 10/1/09Effective program required by 10/1/09

• Certification of effective compliance program – 12/31/09Certification of effective compliance program – 12/31/09

• Evaluation - ongoingEvaluation - ongoing

4747

RISK #4: Failing to Require and RISK #4: Failing to Require and Maintain Records Maintain Records Demonstrating IFSP Approval, Demonstrating IFSP Approval, Authorization, and Actual Authorization, and Actual Performance of a Reimbursable Performance of a Reimbursable ServiceService• Documentation requirements specific Documentation requirements specific

to Early Intervention set forth at :to Early Intervention set forth at :

• http://www.health.state.ny.us/commhttp://www.health.state.ny.us/community/infants_children/early_interventunity/infants_children/early_intervention/memo03-1.htm#_toc41982738ion/memo03-1.htm#_toc41982738; 10 NYCRR 69-4.26 ; 10 NYCRR 69-4.26

4848

DOCUMENTATION SUBMISSION DOCUMENTATION SUBMISSION REQUIREMENTS FROM REQUIREMENTS FROM PROVIDERS TO MUNICIPALITIES PROVIDERS TO MUNICIPALITIES FOR MEDICAID BILLING FOR MEDICAID BILLING• Recipient identification (name, sex, age). Recipient identification (name, sex, age). • Unit of service (e.g., home and community/facility-Unit of service (e.g., home and community/facility-

based, etc.) and specific type of service provided. based, etc.) and specific type of service provided. • Date(s) service was rendered. Date(s) service was rendered. • ICD-9 diagnostic code (until 10/1/2013, then ICD-10) ICD-9 diagnostic code (until 10/1/2013, then ICD-10) • CPT code for delivered services. CPT code for delivered services. • Name, address and license number of contracting Name, address and license number of contracting

individual professionalindividual professional• Name and identifying information of the early Name and identifying information of the early

intervention provider and individual licensing intervention provider and individual licensing information information

4949

DOCUMENTATION DOCUMENTATION MAINTENANCE AND MAINTENANCE AND RETENTION REQUIREMENTS RETENTION REQUIREMENTS FOR MEDICAID BILLINGFOR MEDICAID BILLING• Name and license, certification, or registration number (current as of Name and license, certification, or registration number (current as of

the date of service) of the professional who directly delivered the the date of service) of the professional who directly delivered the diagnostic or treatment service. diagnostic or treatment service.

• A copy of the Individualized Family Service Plan (IFSP). (current as of A copy of the Individualized Family Service Plan (IFSP). (current as of the date of service)the date of service)

• Authorization from the municipality to deliver the service. (current as Authorization from the municipality to deliver the service. (current as of the date of service)of the date of service)

• Written orders or recommendations from specific medical Written orders or recommendations from specific medical professionals when required for the services being provided.professionals when required for the services being provided.

• Early Intervention Memorandum 93-2 (Reissued with no Change December 2000) available at December 2000) available at http://www.nyhealth.gov/guidance/oph/cch/bei/ ; 10 NYCRR 69-4.26 http://www.nyhealth.gov/guidance/oph/cch/bei/ ; 10 NYCRR 69-4.26

5050

Risk #5: Failing to Supervise Risk #5: Failing to Supervise Service Bureaus or Billing Service Bureaus or Billing Companies Submitting Claims Companies Submitting Claims or Receiving Paymentor Receiving Payment

• See OMIG Webinar-Third Party Billing See OMIG Webinar-Third Party Billing in the Medicaid programin the Medicaid program

• http://www.omig.ny.gov/data/images/http://www.omig.ny.gov/data/images/stories/Webinar/1-12-11_third_party_stories/Webinar/1-12-11_third_party_billing_final.pptbilling_final.ppt

5151

Duty to Supervise Service Duty to Supervise Service Bureaus or Billing Companies Bureaus or Billing Companies Submitting Claims or Receiving Submitting Claims or Receiving PaymentPayment• Who is responsible if the billing Who is responsible if the billing

company makes a mistake?company makes a mistake?

• the person or entity on behalf of the person or entity on behalf of whom the claim is submitted.whom the claim is submitted.

5252

Questions for Health Care Questions for Health Care Providers About Third-Party Providers About Third-Party BillersBillers• If any non-employee submits your claims, If any non-employee submits your claims,

checks enrollment, or obtains authorizations, checks enrollment, or obtains authorizations, have you received a written representation have you received a written representation that the person or entity has a records that the person or entity has a records preservation policy consistent with EMEDNY-preservation policy consistent with EMEDNY-414601 (i.e., six years from the date of 414601 (i.e., six years from the date of claims submission) for material and data claims submission) for material and data your organization submits, and 10 NYCRR 69-your organization submits, and 10 NYCRR 69-4.26 requirements (to age 21 for educational 4.26 requirements (to age 21 for educational records)? records)?

5353

"Compliance Program "Compliance Program Guidance for Third-Party Guidance for Third-Party Medical Billing Companies,“ 63 Medical Billing Companies,“ 63 FR 70138-70152 (December FR 70138-70152 (December 18, 1998)18, 1998)• billing for items or services not actually documented; billing for items or services not actually documented; • unbundling and upcoding of claims;unbundling and upcoding of claims;• computer software programs that encourage billing computer software programs that encourage billing

personnel to enter data in fields indicating services personnel to enter data in fields indicating services were rendered though not actually performed or were rendered though not actually performed or documented; documented;

• knowing misuse of provider identification numbers knowing misuse of provider identification numbers which results in improper billing in violation of rules which results in improper billing in violation of rules governing reassignment of benefits;governing reassignment of benefits;

• billing company incentives that violate the anti-billing company incentives that violate the anti-kickback statute;kickback statute;

• percentage billing arrangements. percentage billing arrangements.

5454

New York State Regulation-New York State Regulation-Required enrollment Required enrollment

• ““Persons submitting claims, verifying Persons submitting claims, verifying client eligibility, . . . Except those client eligibility, . . . Except those persons employed by providers persons employed by providers enrolled in the medical assistance enrolled in the medical assistance program, must enroll in the medical program, must enroll in the medical assistance program. . . “ 18 NYCRR assistance program. . . “ 18 NYCRR 504.9504.9

• Is your billing company enrolled? Is your billing company enrolled?

5555

RISK #6: Failing to Assure RISK #6: Failing to Assure Proper Payment by Third Proper Payment by Third Parties Before MedicaidParties Before Medicaid

• Ongoing disputes with insurors about Ongoing disputes with insurors about coveragecoverage

• Guidance Document on Claiming Guidance Document on Claiming Commercial Insurance for Early Commercial Insurance for Early intervention Guidance Document intervention Guidance Document 2003-2 2003-2

5656

Additional Medicaid Program Additional Medicaid Program Integrity ACA Requirements: ACA Integrity ACA Requirements: ACA § 6401– Provider Screening & § 6401– Provider Screening & Disclosure RequirementsDisclosure Requirements

• Applicants/providers re-enrolling would be Applicants/providers re-enrolling would be required to disclose current or previous required to disclose current or previous affiliations with any provider or supplier affiliations with any provider or supplier that has uncollected debt, has had their that has uncollected debt, has had their payments suspended, has been excluded payments suspended, has been excluded from participating in a Federal health care from participating in a Federal health care program, or has had their billing privileges program, or has had their billing privileges revoked.revoked.

5757

Additional Medicaid Program Additional Medicaid Program Integrity ACA ProvisionsIntegrity ACA Provisions• STATE REQUIREMENTS:STATE REQUIREMENTS:• § 6501 – Termination of Provider Participation§ 6501 – Termination of Provider Participation

• States are required to terminate individuals or entities from States are required to terminate individuals or entities from Medicaid programs if individuals/entities were terminated from Medicaid programs if individuals/entities were terminated from Medicare or other state plan under same title.Medicare or other state plan under same title.

• § 6502 – Exclusion Relating to Certain Ownership, Control and § 6502 – Exclusion Relating to Certain Ownership, Control and Management AffiliationsManagement Affiliations

• Exclude if entity/individual owns, controls or manages an entity Exclude if entity/individual owns, controls or manages an entity that: (1) failed to repay overpayments, (2) is suspended, that: (1) failed to repay overpayments, (2) is suspended, excluded or terminated from participation in any Medicaid excluded or terminated from participation in any Medicaid program, or (3) is affiliated with an individual/entity that has program, or (3) is affiliated with an individual/entity that has been suspended, excluded or terminated from Medicaid.been suspended, excluded or terminated from Medicaid.

• ALTERNATE PAYEE REQUIREMENTS:ALTERNATE PAYEE REQUIREMENTS:• §6503 – Billing agents, clearinghouses, or other alternate payees that §6503 – Billing agents, clearinghouses, or other alternate payees that

submit Medicaid claims on behalf of health care provider must register submit Medicaid claims on behalf of health care provider must register with State and Secretary in a form and manner specified by Secretarywith State and Secretary in a form and manner specified by Secretary

5858

CONCLUSION: THE THREE CONCLUSION: THE THREE MOST IMPORTANT MEDICAID MOST IMPORTANT MEDICAID INTEGRITY PROVISIONS OF ACAINTEGRITY PROVISIONS OF ACA• 1. MANDATORY REPORTING AND 1. MANDATORY REPORTING AND

REPAYMENT OF OVERPAYMENTS BY REPAYMENT OF OVERPAYMENTS BY “PERSONS”“PERSONS”

• 2. RETENTION OF OVERPAYMENT IS A 2. RETENTION OF OVERPAYMENT IS A FALSE CLAIM (invokes penalties and FALSE CLAIM (invokes penalties and whistleblower provisions)whistleblower provisions)

• 3. MANDATORY COMPLIANCE PLANS 3. MANDATORY COMPLIANCE PLANS

5959

UPCOMING WEBINAR UPCOMING WEBINAR INFORMATIONINFORMATION

• April Webinar- Preschool/School April Webinar- Preschool/School Supportive Health Services Program Supportive Health Services Program (SSHSP) Medicaid-in-Education(SSHSP) Medicaid-in-Education

• Previous Webinars (Previous Webinars (www.omig.ny.govwww.omig.ny.gov))– Excluded partiesExcluded parties– Self disclosures, overpaymentsSelf disclosures, overpayments– Effective compliance program and Effective compliance program and

whistleblower issues, evaluating effectiveness whistleblower issues, evaluating effectiveness of compliance programsof compliance programs

– Third-party billingThird-party billing

6060

FREE STUFF FROM OMIGFREE STUFF FROM OMIG

• OMIG website - www.OMIG.ny.govOMIG website - www.OMIG.ny.gov• Mandatory compliance program-hospitals, Mandatory compliance program-hospitals,

managed care, all providers over $500,000/yearmanaged care, all providers over $500,000/year• Over 1500 provider audit reports, detailing Over 1500 provider audit reports, detailing

findings in specific industry findings in specific industry • 66-page work plan issued 4/20/09 - shared with 66-page work plan issued 4/20/09 - shared with

other states and CMS, OIG (new one coming in other states and CMS, OIG (new one coming in July, 2010)July, 2010)

• Listserv (put your name in, get emailed updates)Listserv (put your name in, get emailed updates)• New York excluded provider listNew York excluded provider list• Follow us on Twitter: NYSOMIGFollow us on Twitter: NYSOMIG