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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Filed under Health Care Reform, Medicaid, Medicaid Fraud

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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Filed under Behavioral Health, Health Care Reform, Insurance, Mental Health

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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Filed under False Claims Act, Federal Case Updates, Fraud and Abuse, Medicaid, Medicaid Fraud, Medicare, Medicare Fraud

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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Filed under NY Office of Medicaid Inspector General

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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Filed under Medicare, Medicare Fraud

FTC Seeks Changes to Protect Consumer Health Information

The Federal Trade Commission (“FTC”) is urging Congress to ensure the data brokerage industry becomes more transparent and accountable, which could change the way consumers’ personal, health-related information is gathered and shared.  These recommendations may change the landscape of the HIPAA regulations to better ensure protection of sensitive health information.

On May 27, 2014, the FTC released a report based upon its comprehensive study of nine data brokers, ranging in size and prominence in the community.  Data brokers make millions of dollars each year collecting and disseminating massive amounts of personal, sensitive information they have obtained from consumers.  This affects nearly every consumer in the United States, and the current laws in place do not effectively regulate data brokers or their access to consumer information, especially when it comes to individuals’ health-related information. Continue reading

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Filed under HIPAA

Experienced Nurse Practitioners Will Have More Flexibility with Collaborators in 2015

There’s some cautiously good news for nurse practitioners in New York State: nurse practitioners with about two years of experience will no longer have to complete written practice agreements with physicians, beginning in 2015.  Instead, experienced nurse practitioners will need to have a “collaborative relationship” with either a physician in the nurse practitioner’s specialty or a hospital that uses physicians in the nurse practitioner’s specialty.

As current nurse practitioners know, all nurse practitioners must have a written practice agreement and written practice protocols that govern the nurse practitioner’s practice.  When a nurse practitioner and a physician differ concerning diagnosis or treatment, the physician’s diagnosis or treatment wins out. 

Under the new law, which takes effect on January 1, 2015, nurse practitioners who have been practicing for more than 3,600 hours—just about two years—can instead have “collaborative relationships” hospitals or physicians.  Nurse practitioners will have to complete forms that the Department of Education will develop to describe the nurse practitioner’s relationship with the hospital or physician.  As part of the collaborative relationship, a nurse practitioner can communicate in person, by phone, or by email with the hospital or physician to discuss patient care and referrals.  Just as before, if a nurse practitioner and a physician disagree, the physician’s recommendation stands.

The new law will sunset on June 30, 2020.  Before then, the budget requires the state to begin collecting information statewide about access to care, and will issue a report on these issues on September 1, 2018.

We have spoken with the Office of the Professions, and that office is aware of the new law, and is evaluating its options for enforcing it.  Although the law does not go into effect until next year, nurse practitioners who have practiced for more than 3,600 hours should begin evaluating their options for future collaboration.

The budget bill that enacted the new law, know as the Nurse Practitioners Modernization Act, may be viewed here.

We will be monitoring this issue as the regulators begin work to put the new law into effect.  If you have questions on this and any other issues relevant to Nurse Practitioners, please feel free to contact Caitlin Monjeau at cmonjeau@oalaw.com.

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Filed under New York State Agencies, Professions

Office of the Medicaid Inspector General Releases 2014-2015 Work Plan

The New York State Office of the Medicaid Inspector General (“OMIG) has released its State Fiscal Year 2014-2015 Work Plan. You can find the press release at: http://www.omig.ny.gov/latest-news/764-2014-15-work-plan

The Work Plan is a road map of where the OMIG intends to go in terms of its anti fraud, waste and abuse efforts within the Medicaid program. The OMIG’s mission is one of “preventing and detecting fraudulent, abusive, and wasteful practices within the Medicaid [program and recovering improperly expended Medicaid funds while promoting high quality patient care.” The Work Plan intends to “fight fraud, improve integrity and quality, and save taxpayer dollars.”

According to the Work Plan, the OMIG has established nine “business line teams” that each consist of multiple OMIG personnel from various functional areas within the OMIG that work as a team. The goals of these specialized, multidisciplinary teams include improved efficiency, more thorough reviews and investigations, and reduced time to completion.

Broad areas of Medicaid service provision that the OMIG has established business line teams for include, but are not limited to, the following: home and community care services; hospital and outpatient services; managed care; medical services in an educational setting; mental health, chemical dependence and developmental disabilities services; pharmacy and durable medical equipment; physicans, dentists and laboratories; residential health care facilities; and transportation.  Each business line will face varying degrees of scrutiny by the OMIG during this state fiscal year. There is a discussion of each area in the Work Plan available at: http://omig.ny.gov/images/stories/work_plan/2014-15_work_plan.pdf

In addition to the Business Line Teams discussed above, the OMIG also conducts various activities that relate to Medicaid program integrity across multiple business lines. The OMIG is again emphasizing the requirement for Medicaid providers to have an effective compliance plan, and the OMIG will be reviewing compliance plans for effectiveness. Part of an effective compliance plan, and the most significant part as far as the government is concerned, is the ability of the provider to identify and return Medicaid overpayments that the provider has received. The 60 day “report, repay and explain” self-disclosure requirement imposed by the federal Affordable Care Act is also a game changer. The OMIG will continue to review providers who do not make periodic self disclosures or who have never made such disclosures.

The areas listed in the OMIG’s Work Plan that cross multiple business lines are as follows:

AIDS-Related Issues

Ambulatory Patient Groups

Collaborative Efforts with Law Enforcement/Medicare Fraud Strike Force

Collaborative Managed Care Surveys

Compliance Program General Guidance and Assistance

Compliance Program Reviews

Corporate Integrity Agreement Enforcement

County Demonstration Program

Enrollment and Reinstatement

Estate and Casualty Recovery

Fee-for-Service Third-Party Retroactive Recovery Projects

Kickbacks and Inducements

Location of Services Unknown to New York State Department of Health

Managed Care Third-Party Retroactive Recovery Projects

Medicaid Consumer Investigations

Medicaid Electronic Health Records Incentive Payment Program

Medicaid Integrity Contract Audits

Medicaid Recovery Audit Contractor

Medicare Coordination of Benefits with Provider-Submitted Claims

Patient Protection from Disqualified Providers

Payment Error Rate Measurement Project

Pre-Enrollment Review

Prepayment Insurance Verification

Prepayment Review

Prior Findings

Self-Disclosure Efforts

Third-Party Liability and Commercial Direct Billing

Undercover Operations

There will be a continued emphasis on excluding those providers who commit fraud and abuse. Those who commit “inappropriate and fraudulent acts” will face exclusion from the Medicaid program, then, by operation of law, exclusion from the Medicare program, and in essence become virtually unemployable by most health care providers who accept federal funds.

If you would like to discuss any of the areas identified in the OMIG’s Work Plan, or anything else related to the Medicaid program, please feel free to contact the author of this article, David R. Ross, Esq., who was formerly New York State’s Acting Medicaid Inspector General under Governors Pataki and Spitzer. Mr. Ross was also the Director of OMIG audits and investigations as well as the OMIG’s General Counsel. He can be contacted via e-mail at dross@oalaw.com or reached by telephone at (518) 462-5601.

 

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Filed under Fraud and Abuse, Health Care Reform, Medicaid, Medicaid Fraud, New York State Agencies, NY Office of Medicaid Inspector General

National Health Care Fraud Abuse Control Program Reports Record Recoveries and Return on Investment

Through their Health Care Fraud Abuse Control program (“HCFAC”), the United States Departments of Justice (“DOJ”) and the United States Department of Health and Human Services (“HHS”) have recovered more than $19 billion from health care providers over the last five years.  A report released on February 26 shows that the program’s three-year return on investment in fraud and abuse investigations is $8.10 for every dollar spent—this is a record high for the 17-year-old program.  These numbers suggest that the federal government’s interest in investigating and prosecuting health care fraud and abuse is as strong as ever.

For perspective, the current five-year recovery amount—$19.2 billion—is more than double the $9.4 billion recovery for the previous five-year period.  All of this is despite the loss of $30.6 million as a result of the budget-related sequestration in 2013.

HCFAC is a creation of the 1996 HIPAA statute, and is a joint project of DOJ and HHS.  Moreover, the high reported return on investment illustrates that HCFAC is a money-maker for Medicare—HCFAC’s appropriations come from the Medicare Hospital Insurance Trust Fund, also known as the Medicare Part A Trust Fund.

In the last year alone, DOJ filed 137 cases in this area, and charged 345 individuals with crimes.  It secured 234 guilty pleas and 46 convictions.  Defendants sentenced in the 2013 fiscal year served an average of 52 months in prison.

Not to be outdone, the Centers for Medicare and Medicaid Services (“CMS”) have banned over 225,000 individuals and entities from billing Medicare between March 2011 and September 2013.

The OIG Report may be accessed here: http://oig.hhs.gov/publications/docs/hcfac/FY2013-hcfac.pdf

The HHS Press Release may be accessed here: http://www.hhs.gov/news/press/2014pres/02/20140226a.html

Caitlin Monjeau and David Ross contributed this post.

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Filed under Fraud and Abuse, Health Care Reform, HIPAA, Medicaid, Medicaid Fraud, Medicare, Medicare Fraud

The OMIG At Work: A Year Of Record Recoveries?

The New York State Office of the Medicaid Inspector General (OMIG) has announced that it has recovered $851 million in Medicaid funds for 2013.  If accurate, this amount will have set a new record (the prior record is claimed to have been $468 million for 2012) for the OMIG in a state where over $53 billion is spent annually on Medicaid. According to the Daily News, more than one half of the $851 million in recoveries, $496 million, originated from a settled dispute with the federal government about whether Medicare (vs. Medicaid) should have been billed for certain home health services. If the $851 million figure is reduced by the amount of the federal settlement, the amount recovered by the OMIG becomes $355 million for 2013.

Governor Cuomo issued a press release on the OMIG recoveries. “With more than $851 million recovered from Medicaid abuses in 2013 alone – the most in the State’s history – New York is truly leading the nation in fighting fraud and protecting taxpayer dollars,” Governor Cuomo said. “Our focus on cleaning up the Medicaid program is showing record-breaking results, and OMIG’s efforts serve as a role model for other states to follow. Eliminating this kind of waste is vital to transforming New York’s healthcare system, and this year’s tremendous amount of recoveries shows that we are well on our way to building a healthier and fairer New York.”

“Fighting Medicaid fraud is a cornerstone of our efforts, and anyone who steals from Medicaid should know that we will find them. OMIG is proud of this record result,” said Medicaid Inspector General James C. Cox. “This is an extraordinary accomplishment, and an historical achievement. Through dedication and perseverance, our staff not only met but exceeded all expectations in recoveries for the year. Governor Cuomo’s support was crucial to our efforts.”

The OMIG’s mission is “to enhance the integrity of the New York State Medicaid program by preventing and detecting fraudulent, abusive, and wasteful practices within the Medicaid program and recovering improperly expended Medicaid funds while promoting a high quality of patient care.”

The Daily News article can be found here: http://www.nydailynews.com/new-york/ny-recoups-851-million-medicaid-funds-article-1.1599885.  Governor Cuomo’s press release can be found here: http://www.governor.ny.gov/press/02032014-medicaid-recoveries.

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). You may call David at 518.462.5601 or e-mail him at dross@oalaw.com

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Filed under Fraud and Abuse, Health Care Reform, Home Health Agency, Long Term Care, Medicaid, New York State Agencies, NY Office of Medicaid Inspector General