SCHOOL SUPPORTIVE SCHOOL SUPPORTIVE SERVICES-MEDICAID SERVICES-MEDICAID

COMPLIANCE COMPLIANCE 4/27/114/27/11

JAMES G. SHEEHANJAMES G. SHEEHANNEW YORK MEDICAID INSPECTOR GENERALNEW YORK MEDICAID INSPECTOR GENERAL

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

NYSED: MedinEd@mail.nysed.govNYSED: MedinEd@mail.nysed.gov

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20112011

• GOVERNOR CUOMO’S STATE OF THE GOVERNOR CUOMO’S STATE OF THE STATESTATE– 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 (MRT)MEDICAID REDESIGN TEAM (MRT)– THOROUGH REVIEW OF MEDICAID PROGRAMS THOROUGH REVIEW OF MEDICAID PROGRAMS

AND AGENCY PRACTICESAND AGENCY PRACTICES– ON-TIME BUDGET 2011-FIRST IN MEMORYON-TIME BUDGET 2011-FIRST IN MEMORY

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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: May 25: Home Health Conflict and Exception reports.

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GOALS OF THIS GOALS OF THIS PROGRAMPROGRAM• Education for Medicaid providers, billing entities, Education for Medicaid providers, billing entities,

and municipal/county governmental entities on and municipal/county governmental entities on compliance with Medicaid payment requirementscompliance with Medicaid payment requirements

• Compliance expectations for providers & billersCompliance expectations for providers & billers• Federal funding brings federal oversight-provider Federal funding brings federal oversight-provider

and municipality responsibilities under Medicaidand municipality responsibilities under Medicaid• The CMS Integrity Agreement with New YorkThe CMS Integrity Agreement with New York• Responsibilities of OMIG, DOH, SEDResponsibilities of OMIG, DOH, SED• Audit process and approachAudit process and approach• Compliance Officer Compliance Officer

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CONCERNS OF THIS CONCERNS OF THIS PROGRAMPROGRAM

• Involves both Medicaid and Individuals with Involves both Medicaid and Individuals with Disabilities Education Act (IDEA) Disabilities Education Act (IDEA)

• School districts, Section 4201 schools and School districts, Section 4201 schools and counties are not required to bill Medicaid counties are not required to bill Medicaid for services included in a student’s IEP; for services included in a student’s IEP; they are obligated to provide services they are obligated to provide services pursuant to a student’s IEPpursuant to a student’s IEP

• School districts and counties required to School districts and counties required to provide a free, appropriate public educationprovide a free, appropriate public education

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NEW YORK MEDICAID IN NEW YORK MEDICAID IN EDUCATION ALERT 11-02 EDUCATION ALERT 11-02 (April 22, 2011)(April 22, 2011)

• Billing for SSHSP services furnished on or after Billing for SSHSP services furnished on or after September 1, 2009 has resumed.September 1, 2009 has resumed.

• School districts and Section 4201 schools can bill for School districts and Section 4201 schools can bill for SSHSP Targeted Case Management services provided SSHSP Targeted Case Management services provided prior to July 1, 2010 (refer to:prior to July 1, 2010 (refer to:http://www.oms.nysed.gov/medicaid/medicaid_alerts/alerts_2011/Medicaid_Alert_11-http://www.oms.nysed.gov/medicaid/medicaid_alerts/alerts_2011/Medicaid_Alert_11-2_Billing_SPA0961.pdf2_Billing_SPA0961.pdf

• Extensive training has been provided to clarify Medicaid Extensive training has been provided to clarify Medicaid billing and claiming requirements under SSHSP State billing and claiming requirements under SSHSP State Plan Amendment #09-61 (more than 40,000 school Plan Amendment #09-61 (more than 40,000 school district, county and 4201 school relevant employees district, county and 4201 school relevant employees trained via online and in-person training sessions; school trained via online and in-person training sessions; school district, county and 4201 “relevant employees” must be district, county and 4201 “relevant employees” must be trained to resume billing).trained to resume billing).

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NEW YORK MEDICAID IN NEW YORK MEDICAID IN EDUCATION ALERT 11-02 EDUCATION ALERT 11-02 (April 22, 2011)(April 22, 2011)

• All documentation supporting the provider’s right to bill Medicaid for services must be in place prior to the submission of claims for Medicaid reimbursement:

• Verification of medical necessity (e.g., written order/referral),

• Verification that the service was provided by a Medicaid qualified provider, including fulfillment of “under the direction of” or supervision requirements,

• A contemporaneous record of each encounter, and • An Individualized Education Program (IEP) which identifies

the service being billed. • http://www.oms.nysed.gov/medicaid/medicaid_alerts/

alerts_2011/Medicaid_Alert_11-2_Billing_SPA0961.pdf

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MEDICAID IN EDUCATION-A MEDICAID IN EDUCATION-A PRIORITY ISSUE FOR PRIORITY ISSUE FOR FEDERAL HHS/OIGFEDERAL HHS/OIG

• 2010 SEPT Review of New Jersey’s Medicaid School-Based Health Claims Submitted by Public Consulting Group, Inc. A-02-07-01052 Report

• 2010 APR Review of New Jersey’s Medicaid School-Based Health Claims Submitted by Maximus, Inc. A-02-07-01051 Report

• 2010 MAR Review of Arizona’s Medicaid Claims for School-Based Health Services A-09-07-00051 Report

• 2009 APR Review of Timeliness of West Virginia’s Retroactive Claims for Medicaid School-Based Services. A-03-06-00201 Report

• 2008 FEB Review of New Jersey's Medicaid School-Based Rates. A-02-04-01017 Report

• 2007 OCT Medicaid School-Based Services in Utah – Review of Payment Rates. A-07-06-04069 Report

• 2007 MAY Review of Medicaid Reimbursement Rate for School-Based Health Services in Maryland. A-03-05-00206 Report

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MEDICAID IN EDUCATION-A MEDICAID IN EDUCATION-A PRIORITY ISSUE FOR PRIORITY ISSUE FOR HHS/OIGHHS/OIG• Findings: “Our reviews through fiscal year

(FY) 2010 found that states’ claims for the Federal share of Medicaid included school-based services that did not always fully comply with Federal and State standards. We identified Medicaid overpayments for school-based health services with the Federal share of the overpayments totaling an estimated $1.4 billion.”

• HHS/OIG “Compendium of Unimplemented Recommendations March 31, 2011” | Part III page 7

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Compliance agreement has a number of components, including mandatory training of relevant employees and confidential disclosure of suspected fraud, waste and abuse

$540 million repayment in whistleblower case: $440 million payment by New York State $100 million repayment by New York City

OMIG audits Independent audit Annual written reports Annual training

NEW YORK/CMS Compliance Agreement-2009

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Confidential Disclosure Contact

Rose FiresteinRose FiresteinCompliance OfficerCompliance Officer

New York State Department of HealthNew York State Department of HealthOffice of General CounselOffice of General Counsel90 Church Street, 4th Floor90 Church Street, 4th FloorNew York, New York 10007New York, New York 10007Telephone: 212/417-4393Telephone: 212/417-4393Facsimile: 212/417-4392Facsimile: 212/417-4392ref01@health.state.ny.usref01@health.state.ny.us

Compliance Agreement

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Audits Audits requiredrequired by CMS by CMS

• Over $1,000,000 – all will be audited Over $1,000,000 – all will be audited (NYC on an annual basis)(NYC on an annual basis)

• $250,000 - $1,000,000 – randomly audit $250,000 - $1,000,000 – randomly audit 25 providers (districts or counties) 25 providers (districts or counties) annuallyannually

• Up to $250,000 – randomly audit 10 Up to $250,000 – randomly audit 10 providers (districts or counties) annuallyproviders (districts or counties) annually

OMIG MEDICAID IN EDUCATION AUDITS

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Written Orders and Referrals must include:Written Orders and Referrals must include:• The name of the child for whom the order is written;The name of the child for whom the order is written;

• The complete date the order was written and signed;The complete date the order was written and signed;

• The service that is being ordered;The service that is being ordered;

• Provider’s contact information (office stamp or Provider’s contact information (office stamp or preprinted address and telephone number);preprinted address and telephone number);

• Signature of a NYS-licensed and registered physician, Signature of a NYS-licensed and registered physician, a physician assistant, or a licensed nurse practitioner a physician assistant, or a licensed nurse practitioner acting within his or her scope of practice (for acting within his or her scope of practice (for psychological counseling services this also includes psychological counseling services this also includes an appropriate school official and for speech therapy an appropriate school official and for speech therapy services, a speech-language pathologist*);services, a speech-language pathologist*);

Audit Standards: Medicaid State Plan Amendment (09-61) – Written Orders/Referrals

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Audit Standards: Medicaid State Medicaid State Plan Amendment (09-61) – Written Plan Amendment (09-61) – Written Orders/ReferralsOrders/Referrals

Written Orders and Referrals must include Written Orders and Referrals must include (continued):(continued):

• The time period for which services are being The time period for which services are being ordered; ordered;

• The ordering practitioner’s National Provider The ordering practitioner’s National Provider Identifier (NPI) or license number; and, Identifier (NPI) or license number; and,

• Patient diagnosis and/or reason/need for ordered Patient diagnosis and/or reason/need for ordered services.services.

*For purposes of the SSHSP, where written referrals are permitted*For purposes of the SSHSP, where written referrals are permitted

(e.g., speech therapy services, psychological counseling services), (e.g., speech therapy services, psychological counseling services),

the written referral must include the information listed above.the written referral must include the information listed above.

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Audit Standards: Medicaid State Plan Amendment (09-61) – Session Notes

Session notes must include: Student’s name Specific type of service provided Whether the service was provided individually or in a

group (specify the actual group size) The setting in which the service was rendered (school,

clinic, other) Date and time the service was rendered (length of

session – record session start time and end time) Brief description of the student’s progress made by

receiving the service during the session Name, title, signature and credentials of the person

furnishing the service and signature/credentials of supervising clinician as appropriate

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Documentation Required to Documentation Required to Support Medicaid Support Medicaid Reimbursement Reimbursement

• IEPIEP

• Written ordersWritten orders

• Written referralsWritten referrals

• Documenting Documenting service deliveryservice delivery– Session notesSession notes

• UDO/Supervision if UDO/Supervision if applicableapplicable

• Provider credentials Provider credentials kept on filekept on file

• Special Special TransportationTransportation– Medical/Behavioral Medical/Behavioral

need (included in need (included in IEP)IEP)

– Documented Documented receipt of Medicaid receipt of Medicaid covered service covered service

– Transportation logsTransportation logs

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Training Relevant employee database

http://www.forms2.nysed.gov/oms/medicaid/shsp.cfm Annual relevant employee training Relevant employee listings from each school district, county and 4201 school SED is following up with school districts, counties and 4201 schools that are

notin compliance with the relevant employee mandatory training requirement; training requirement needs to be met before school district, county or 4201 is permitted to bill Medicaid

Compliance Agreement

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SCHOOL SUPPORTIVE SCHOOL SUPPORTIVE SERVICES-MEDICAIDSERVICES-MEDICAID

• Total Medicaid expenditures in NY Total Medicaid expenditures in NY 2009-10 school year: $159.8 million 2009-10 school year: $159.8 million

• Federal share $98.4 millionFederal share $98.4 million

• NY City=$ million total NY City=$ million total reimbursements:reimbursements:– Calendar year 2009: $14,903,539Calendar year 2009: $14,903,539– Calendar year 2010: $60,903,843Calendar year 2010: $60,903,843

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SCHOOL SUPPORTIVE SCHOOL SUPPORTIVE PROGRAM FEDERAL LAW PROGRAM FEDERAL LAW AND REGULATIONSAND REGULATIONS

• Individuals with Disabilities Education Individuals with Disabilities Education ActAct, Part B (ages 3-21), Part B (ages 3-21)

2020

SCHOOL SUPPORTIVE SCHOOL SUPPORTIVE PROGRAM FEDERAL LAW PROGRAM FEDERAL LAW AND REGULATIONSAND REGULATIONS• Part 200 of the Part 200 of the

NYSED Commissioner's Regulations: NYSED Commissioner's Regulations:  http://www.p12.nysed.gov/specialed/ http://www.p12.nysed.gov/specialed/lawsregs/part200.htmlawsregs/part200.htm

• NYSED's special education NYSED's special education department's Web site:department's Web site:

• http://www.p12.nysed.gov/specialed/ http://www.p12.nysed.gov/specialed/

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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.”

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WHO MAY AUDIT MEDICAID WHO MAY AUDIT MEDICAID SCHOOL SUPPORTIVE SCHOOL SUPPORTIVE SERVICES PAYMENTS?SERVICES PAYMENTS?• Office of Medicaid Inspector General (NY)Office of Medicaid Inspector General (NY)

• HHS and Education Office of Inspector HHS and Education Office of Inspector General (federal)General (federal)

• Medicaid Fraud Control Unit (NY)Medicaid Fraud Control Unit (NY)

• Medicaid Integrity Contractor (CMS)Medicaid Integrity Contractor (CMS)

• Office of State Comptroller (NY)Office of State Comptroller (NY)

• Counties and County ComptrollersCounties and County Comptrollers

• GAOGAO

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OTHER OTHER AUDIT/INVESTIGATIVE 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

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WHO MAY BE AUDITED?WHO MAY BE AUDITED?

• School districts, counties and Section School districts, counties and Section 4201 schools submitting claim4201 schools submitting claim

• 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)

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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 school districts, counties and section 4201 schools.

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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

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THE FOUR GREATEST THE FOUR GREATEST MEDICAID PROGRAM RISKS MEDICAID PROGRAM RISKS IN SCHOOL SERVICESIN SCHOOL SERVICES

• RISK #1: Using excluded persons to provide services reimbursable RISK #1: Using excluded persons to provide services reimbursable by Medicaid.by 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 more than $500,000).required by 18 NYCRR 521 (if more than $500,000).

• RISK #4: Failing to supervise service bureaus or billing companies RISK #4: Failing to supervise service bureaus or billing companies submitting claims or receiving payment.submitting claims or receiving payment.

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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

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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

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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.

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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

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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, but May employ or contract with excluded persons, but may not allow excluded persons to provide or to may not allow excluded persons to provide or to direct the ordering or delivery of services or direct the ordering or delivery of services or supplies, or to undertake certain administrative supplies, or to undertake certain administrative duties (CSE/CPSE members, service providers) duties (CSE/CPSE members, service providers)

– Whether or not direct care activities are involvedWhether or not direct care activities are involved– 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 work. excluded prior to being sent to providers for work. Providers must develop and enforce contractual Providers must develop and enforce contractual agreements to ensure prescreening occurs.agreements to ensure prescreening occurs.

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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 or person during a period of exclusion or in violation of any condition of in violation of any condition of participation in the program. participation in the program.

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RISK #2: Failing to Refund RISK #2: Failing to Refund Identified Overpayments to Identified Overpayments to the Medicaid Program- ACA the Medicaid Program- ACA § 64026402• (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 . . .

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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

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

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VOIDS AND SMALL VOIDS AND SMALL OVERPAYMENTSOVERPAYMENTS• Providers may use void process through Computer Sciences Providers may use void process through Computer Sciences

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

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

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

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

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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””

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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 an individual program enrollee or Person” includes an individual program enrollee or subcontractor as well as a program provider 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)

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WHEN MUST AN WHEN MUST AN OVERPAYMENT BE OVERPAYMENT BE RETURNED?RETURNED? • ACA ACA § 6402(A) 6402(A)

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

date on which the overpayment was date on which the overpayment was identifiedidentified; or; or

– (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

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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

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SOME REASONS FOR SOME REASONS FOR OVERPAYMENTSOVERPAYMENTS

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

• Incorrect provider payeeIncorrect provider payee

• Payment for services not authorized Payment for services not authorized

• Services not actually rendered Services not actually rendered

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MORE REASONS FOR MORE REASONS FOR OVERPAYMENTSOVERPAYMENTS

• Failure to refund credit balancesFailure to refund credit balances

• Excluded ordering or servicing Excluded ordering or servicing personperson

• Patient deceased Patient deceased

• Servicing person lacked required Servicing person lacked required license or certification license or certification

• Billing system errorBilling system error

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““OVERPAYMENT” OVERPAYMENT” INCLUDES:INCLUDES:

• PAYMENT RECEIVED OR RETAINED FOR SERVICES ORDERED OR PROVIDED BY 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

4545

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.”

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OMIG SELF-DISCLOSURE OMIG SELF-DISCLOSURE FORM FROM FORM FROM WWW.OMIG.NY.GOVWWW.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.)

4747

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

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

• 18 NYCRR 52118 NYCRR 521

• Requires an eight-step effective Requires an eight-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): school providers (directly or indirectly): school districts, counties, Section 4201 schools, districts, counties, Section 4201 schools, agency service providersagency service providers

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

than $500,000 per year must have, and certify to, an effective than $500,000 per year must have, and certify to, an effective compliance program with eight mandatory elements. 18 NYCRR compliance program with eight mandatory elements. 18 NYCRR 521521

• 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 (over 80 disclosures Disclosure to state of overpayments received, when identified (over 80 disclosures

in 2009)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 – annually in Certification of effective compliance program – annually in December, started 12/09December, started 12/09

• Evaluation - ongoingEvaluation - ongoing

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Risk #4: Failing to Supervise Risk #4: Failing to Supervise Service Bureaus or Billing Service Bureaus or Billing Companies Submitting Companies Submitting Claims or Receiving PaymentClaims or 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/http://www.omig.ny.gov/data/images/stories/Webinar/1-12-images/stories/Webinar/1-12-11_third_party_billing_final.ppt11_third_party_billing_final.ppt

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Duty to Supervise Service Duty to Supervise Service Bureaus or Billing Companies Bureaus or Billing Companies Submitting Claims or Submitting Claims or Receiving PaymentReceiving Payment

• Who is responsible if the billing Who is responsible if the billing company makes a mistake?company makes a mistake?

• The school district, county or Section The school district, county or Section 4201 school is responsible and must 4201 school is responsible and must ensure that contractors (if used) bill ensure that contractors (if used) bill appropriately.appropriately.

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)?

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““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.

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New York State Regulation-New York State Regulation-Required EnrollmentRequired 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

Additional Medicaid Program Additional Medicaid Program Integrity ACA Requirements: Integrity ACA Requirements: ACA § 6401– Provider ACA § 6401– Provider Screening & Disclosure Screening & Disclosure RequirementsRequirements• 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.

5656

Additional Medicaid Additional Medicaid Program Integrity ACA Program Integrity ACA ProvisionsProvisions• 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 Secretary.with State and Secretary in a form and manner specified by Secretary.

5757

Additional ResourcesAdditional Resources

• Medicaid-in-Education homepage:Medicaid-in-Education homepage: http://http://www.oms.nysed.gov/medicaid/www.oms.nysed.gov/medicaid/• Medicaid-in-Education Questions & AnswersMedicaid-in-Education Questions & Answers

http://www.oms.nysed.gov/medicaid/q_and_a/http://www.oms.nysed.gov/medicaid/q_and_a/• Office of Professions homepage:Office of Professions homepage: http://www.op.nysed.gov http://www.op.nysed.gov • National Alliance for Medicaid in Education National Alliance for Medicaid in Education http://medicaidforeducation.org/ http://medicaidforeducation.org/ • LEAnet LEAnet http://www.theleanet.com/http://www.theleanet.com/

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SSHSP Technical SSHSP Technical AssistanceAssistance

• Technical assistance questions Technical assistance questions should be directed to the Med-in-Ed should be directed to the Med-in-Ed mailbox (MedinEd@mail.nysed.gov)mailbox (MedinEd@mail.nysed.gov)

• Compliance issues should be Compliance issues should be forwarded to local compliance officer forwarded to local compliance officer or Rose Firestein if they cannot be or Rose Firestein if they cannot be resolved at the local (district, county resolved at the local (district, county level)level)

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UPCOMING WEBINAR UPCOMING WEBINAR INFORMATIONINFORMATION

• May 25 Webinar: Home Health Care: May 25 Webinar: Home Health Care: Conflict and Exception ReportsConflict and Exception Reports

• Previous Webinars (www.omig.ny.gov)Previous Webinars (www.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– Early InterventionEarly Intervention

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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 managed care, all providers over $500,000/year$500,000/year

• More than 3,000 provider audit reports, More than 3,000 provider audit reports, detailing findings in specific industry detailing findings in specific industry

• 2011 Work Plan (2012 Work Plan to come in 2011 Work Plan (2012 Work Plan to come in October 2011)October 2011)

• Listserv (put your name in, get emailed Listserv (put your name in, get emailed updates)updates)

• New York excluded provider listNew York excluded provider list• Follow us on Twitter: NYSOMIGFollow us on Twitter: NYSOMIG