HHS Looks to Collect $12 Million from New York State for Unallowable Continuous 24-Hour Personal Care Services

In 2011, the United States Department of Health and Human Services Office of the Inspector General (“HHS OIG”) investigated New York City’s Medicaid claims for continuous 24-hour personal care services, an area that previous HHS OIG audits consistently identified as one vulnerable to  fraud, waste, and abuse.

Personal care services, as defined by New York State regulations, provide assistance to individuals who require partial or total assistance with day-to-day personal care activities such as hygiene, feeding, or dressing.[1]  An individual whose medical condition or physical disabilities requires assistance during both the day and night may be eligible to receive 24-hour continuous services.[2]

After agreeing to settle its audit with New York City for $70 million, HHS OIG turned its focus to the rest of New York State to determine whether a systemic compliance problem existed concerning Federal Medicaid reimbursement of continuous 24-hour personal care claims.  The state-wide audit covered the remaining counties except Ulster.  The decision to audit Ulster County separately is addressed in our blog post about the March, 2015 County Report.

In its February, 2015 report, HHS OIG found that for calendar years 2007 through 2011, New York State claimed $33.8 million in reimbursement for continuous 24-hour personal care claims, exclusive of Ulster County and New York City.  Review of these claims resulted in a finding that approximately 80% of the claims did not meet Federal and State requirements.  The errors were largely related to non-compliance by certain local districts who stated that they were unaware of the Federal and State requirements related to continuous 24-hour personal care services.

HHS OIG’s report states that New York made claims for unallowable services because providers did not ensure that the following regulatory requirements were met[3]:

 

  1. No independent medical review
  2. No nursing assessment
  3. No physician’s order
  4. Physician’s order not completed within 30 days of medical examination
  5. No social assessment
  6. Aide did not meet in-service training requirements
  7. Services not documented
  8. No nursing supervision
  9. Aide did not receive basic training

 

HHS OIG found that New York State shared the responsibility for the submission errors because of its failure to adequately monitor the counties’ administration of the personal care services programs or compliance with Federal and State requirements.

 

While the New York State Department of Health (“NYSDOH”) agrees that its personal care services programs need improvement to ensure compliance with Federal and State regulations, it did not expressly agree or disagree with the alleged overpayment amount.  In its response to the report, NYSDOH explained that the Office of the Medicaid Inspector General (“OMIG”) is currently in the process of reviewing HHS OIG’s findings, after which it will determine whether a refund is appropriate.  HHS OIG, however, is standing by its findings and recommendations and will continue to seek repayment from New York State.

 

The HHS OIG state-wide report can be found 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.

[1] 18 N.Y.C.R.R. 505.14(a)(1).

[2] Id. at (a)(5).

[3] New York State requirements can be found in 18 N.Y.C.R.R. § 505.14.


David Ross

About David Ross

David is Partner and concentrates his practice on Medicaid, Medicare and private insurance audits & investigations, Health Law including fraud and abuse, governmental investigations of all kinds, Medicaid compliance plans and Article 78 cases. He is head of our Government Investigations practice and also works in Healthcare Fraud & Abuse.