Congress Questions ONC’s Authority to Pursue Health IT Safety Center

The House of Representatives has grown increasingly skeptical of the Office of the National Coordinator for Health Information (“ONC”) and its plans to expand its programming and reach.  House members have questioned whether the ONC has the authority to make changes it has recently proposed.

In a June 3, 2014, letter to the Office of the National Coordinator for Health Information Technology (“ONC”), the United States House Committee on Energy and Commerce (“Committee”) asked the agency to explain its presumed authority to implement new regulatory measures in the realm of Health Information Technology (“Health IT”).  The letter, signed by Chairman Fred Upton (R-MI), Vice Chairman Marsha Blackburn (R-TN), Subcommittee on Health Chairman Joseph R. Pitts (R-PA), and Subcommittee on Communications and Technology Chairman Greg Walden (R-OR), asked ONC to respond to a number of questions, including “When the authorization for the Medicare and Medicaid Incentive program expires, under what statutory authority does ONC believe it is able to regulate Health IT and electronic health records, particularly in (but not limited to) non-Meaningful Use areas?” Continue reading

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Attention OASAS Providers: OMIG Releases Compliance Guidance for Inpatient Chemical Dependency Rehabilitation and Outpatient Chemical Dependency Services

The New York State Office of the Medicaid Inspector General (“OMIG”) has released Compliance Guidance for use by providers regulated by the New York State Office of Alcoholism and Substance Abuse Services (“OASAS”).

New York State Social Services Law Section 363-d and the implementing regulations at 18 NYCRR Part 521 require OMIG to routinely identify compliance risk areas relating to the particular type of services being offered by Medicaid providers.  The purpose of the OMIG’s Compliance Guidance is to offer examples of compliance risk areas that may be of particular concern to those providing Inpatient Chemical Dependence Rehabilitation and Outpatient Chemical Dependence services.  Many of the examples are taken from OMIG Audit Protocols for OASAS Chemical Dependence Programs and Services, which can be found on OMIG’s Web site at www.omig.ny.gov.

The OMIG Compliance Guidance for OASAS providers may be found here.

Kathleen Evers wrote this post.  For more information, please contact David R. Ross, who served as Acting New York State Medicaid Inspector General under governors Pataki and Spitzer, as well as General Counsel, Deputy Medicaid Inspector General, and Director of Audits and Investigations for the Office of the Medicaid Inspector General.  Prior to his service at the OMIG, David held several positions at the New York State Office of Alcoholism and Substance Abuse Services, including Acting General Counsel, Deputy Counsel, and Associate Counsel.  He can be reached at (518) 462-5601 or via e-mail at dross@oalaw.com.

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The Trouble with RACs

It seems the United States House of Representatives has taken aim at Medicare Recovery Audit Contractors (“RACs”). The RACs are private, non-governmental entities that are authorized by the Medicare program to conduct audits of Medicare providers and suppliers.

In December, 2013, the Office of Medicaid Hearings and Appeals (“OMHA”) sent a letter to providers with “a significant number of Medicare appeals currently pending” informing them that OMHA had temporarily suspended all Medicare claim and entitlement appeals “due to the rapid and overwhelming increase in claim appeals.” At the end of 2013, the number of appeal requests had grown to approximately 15,000 per week. The goal of the suspension was to “allow OMHA to adjudicate appeals involving almost 357,000 claims for Medicare services and entitlements already assigned to its 65 Administrative Law Judges.” The current wait time for a hearing to review the results of a RAC audit with an Administrative Law Judge is over two years. Continue reading

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“I Might Be Injured, Someday…Maybe?” Courts Question Plaintiffs’ Standing in HIPAA Breach Suits Alleging Future Harm

Illinois courts have now dismissed two class action law suits against Advocate Health and Hospitals Corporation (“Advocate”), stemming from a July 2013 breach of personal health information (“PHI”) when four unencrypted laptop computers were stolen from Advocate’s administrative offices.  The computers collectively contained the PHI, including names, addresses, dates of birth, Social Security Numbers, diagnoses, medical record numbers, the identity of treating physicians or departments, and health insurance data, of over 4 million Advocate consumers. 

In both suits, the plaintiff class alleged the breach was a direct result of Advocate’s negligence, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Personal Information Protection Act, as well as an invasion of privacy and an intentional infliction of emotional distress.  Continue reading

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Auditing the Auditors: OSC Audits the OMIG and Questions the Accuracy of OMIG’s Cost Saving Figures

The New York State Office of the State Controller (“OSC”) has released its audit of the New York State Office of the Medicaid Inspector General (“OMIG”) entitled “Accuracy of Reported Cost Savings.” The final report, issued July 11th, presented OSC’s findings regarding the accuracy of the OMIG’s reported cost savings for calendar years 2008 through 2012. Continue reading

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Attention OMH Continuing Day Treatment Providers: OIG Releases Audit of CDT Programs, Seeks Repayment of over $18 Million to Federal Medicaid Program

The United States Department of Health and Human Services Office of the Inspector General (“OIG”) conducted an audit of New York State’s nonhospital-based Continuing Day Treatment (“CDT”) program.  

CDT services are clinic services administered by the New York State Office of Mental Health (“OMH”). OMH’s CDT program provides Medicaid recipients with treatment designed to maintain and/or enhance current levels of functioning and skills, to maintain community living, and to develop self-awareness and self-esteem through the exploration and development of strengths and interests. CDT services include, but are not limited to, assessment and treatment planning, discharge planning, medication therapy, case management, psychiatric rehabilitation, and activity therapy.

To be eligible for the CDT program, a recipient must have a diagnosis of a designated mental illness as well as a dysfunction due to a mental illness. The recipient’s treatment plan must be completed in a timely manner; be signed and approved by both the recipient and the physician involved in the treatment; include a diagnosis of a designated mental illness, treatment goals, objectives, and related services, a plan for the provision of additional services, and criteria for discharge planning; and be reviewed every 3 months. Additionally, progress notes must be recorded at least every 2 weeks by the clinical staff members who provided CDT services to the recipient. The progress notes must identify the particular services provided and the changes in goals, objectives, and services, as appropriate. In addition, CDT services must be adequately documented, including type, duration, and need for continuing services.

The OIG audit report alleges that New York State claimed federal Medicaid reimbursement for nonhospital CDT services that did not comply with federal and State requirements. Of the 100 claims in the OIG’s random sample, 66 claims complied with federal and State requirements, while 34 claims allegedly did not.  The audit period was from April 1, 2009 to August 17, 2011.

According to the OIG audit report, the alleged deficiencies occurred because (1) certain nonhospital CDT providers did not comply with federal and State regulations and (2) the State did not ensure that OMH adequately monitored the CDT program for compliance with certain federal and State requirements. On the basis of the sample results, the OIG estimated that the State improperly claimed at least $18,093,953 in federal Medicaid reimbursement for nonhospital CDT services that did not meet federal and State requirements.

The OIG recommended that the State refund $18,093,953 to the Federal Government;  work with OMH to issue guidance to the provider community regarding federal and State requirements for claiming Medicaid reimbursement for nonhospital CDT services; and work with OMH to improve OMH’s monitoring of the CDT program to ensure compliance with federal and State requirements.

According to the OIG audit report, New York State responded as follows:. “In written comments on our draft report, the State agency disagreed with our first recommendation (financial disallowance) and did not indicate concurrence or nonconcurrence with our remaining recommendations. Specifically, State agency officials stated that we based our findings entirely on State regulations and, if OMH found claims to have violated the State regulations we cited, those violations “would not have rendered the services non-reimbursable.” The State agency also disagreed with our determination that, for one sampled claim, progress notes were not prepared by a staff member who provided a service. Specifically, State agency officials stated that, for the sampled claim (#73), a progress note clearly demonstrated that “the treatment provider was actively engaged” with the beneficiary during the 2-week period that included the sampled service date. In addition, the State agency disagreed with our determination that certain sampled claims did not meet reimbursement standards. State agency officials indicated that their preliminary analysis of our workpapers revealed that providers supplied us with schedules of group services that beneficiaries were scheduled to attend each day they visited the CDT provider. State agency officials stated that these schedules document the frequency and types of services planned for each beneficiary.”

As a result of the OIG audit, it is likely that the New York State Office of the Medicaid Inspector General (“OMIG”) will be conducting additional audits of CDT providers. 

The OIG audit report is available at http://oig.hhs.gov/oas/reports/region2/21201011.pdf.  

For more information, please contact the author, David R. Ross, who served as Acting New York State Medicaid Inspector General under governors Pataki and Spitzer, as well as General Counsel, Deputy Medicaid Inspector General, and Director of Audits and Investigations for the Office of the Medicaid Inspector General (OMIG). He can be reached at (518) 462-5601 or via e-mail at dross@oalaw.com

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New York State Attorney General Cracks Down on Mental Health Parity Violations

This year, the New York State Attorney General reached settlements with three health insurance companies for claimed violations of Timothy’s Law.  EmblemHealth (“Emblem”) recently agreed to pay $1.2 million in civil penalties, take remedial action, and participate in restitution which may exceed $31 million.  MVP and Cigna each faced penalties earlier this year. 

Timothy’s Law, enacted in 2006, requires insurance providers to include mental health and chemical dependency coverage.  This mental health parity law precludes insurance companies from having separate limitations on coverage or increased costs for mental, nervous, or emotional disorders, unless the same conditions are placed upon physical illness covered under the policy. Continue reading

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Attention Medicaid and Medicare Providers: US DOJ Sues Providers for Failing to Return Overpayments Within 60 Days

On June 27, 2014, in the case of United States ex rel. Kane v. Healthfirst, Inc., et al., No. 11-2325 (S.D.N.Y.), the United States Department of Justice (USDOJ), via the United States Attorney’s Office for the Southern District of New York, sued several Medicaid providers under the federal False Claims Act for failing to return Medicaid overpayments within 60 days of identifying them. Continue reading

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Attention OPWDD Providers: OMIG Releases Compliance Guidance for Corporate Compliance Programs

The New York State Office of the Medicaid Inspector General (OMIG) has released Compliance Guidance for use by providers regulated by the New York State Office of Persons for Developmental Disabilities (OPWDD).

The routine identification of compliance risk areas, relating to the particular type of services being offered by Medicaid providers, is required for certain providers in accordance with the New York State Social Services Law Section 363-d and implementing regulations at 18 NYCRR Part 521. The purpose of the OMIG’s Compliance Guidance is to give examples of compliance risk areas that may be of particular concern to those providing Day Habilitation, Day Treatment, Residential Habilitation, and Medicaid Service Coordination services. Many of these are taken from OMIG Audit Protocols for Office for People with Developmental Disabilities (OPWDD) programs and services which can be found on OMIG’s Web site at www.omig.ny.gov.

The OMIG Compliance Guidance for OPWDD providers is viewable here.

For more information, please contact the author, David R. Ross, who served as Acting New York State Medicaid Inspector General under governors Pataki and Spitzer, as well as General Counsel, Deputy Medicaid Inspector General, and Director of Audits and Investigations for the Office of the Medicaid Inspector General (OMIG). He can be reached at (518) 462-5601 or via e-mail at dross@oalaw.com.

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HHS OIG 2010 Medicare Audit: $6.7 Billion Misspent for Evaluation and Management Services

The United States Department of Health and Human Services Office of the Inspector General (“OIG”) has completed its audit of 2010 Medicare payments for Evaluation and Management (“E/M”) services. The audit report, available at  https://oig.hhs.gov/oei/reports/oei-04-10-00181.asp, states that the Medicare program overpaid providers $6.7 billion for E/M services that were incorrectly coded or lacked documentation in 2010. The claims error rate was 55% and the dollar value of the overpayments represented 21% of Medicare payments for E/M services that year.  The OIG audit found that 42% of claims for E/M services were incorrectly coded (upcoded, billed at a higher level than appropriate, and downcoded, billed at a lower level than appropriate) and 19% were lacking documentation. This equates to 61% of E/M services being incorrectly billed and/or documented in 2010.  Continue reading

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