P R E S E N T E D B Y:

Self-Disclosures by Medicaid ProvidersSeptember 14, 2010

Presented by:

James Sheehan Robert Hussar

Medicaid Inspector General First Deputy

James.Sheehan@omig.ny.gov Robert.Hussar@omig.ny.gov

(518) 473-3782

www.OMIG.ny.gov

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OMIG WEBINARS - Part of OMIG’s Educational Responsibilities

Public Health Law §32 –

Medicaid IG functions/duties/responsibilities

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.

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OMIG WEBINARS - Part of OMIG’s Educational Responsibilities

• Previous Webinars:

– Addressing Excluded Persons in Medicaid

Employment and Contracting in New York

June 8, 2010

– Section 6402 of PPACA and the Duty of

Disclosure of “Identified” Overpayments

July 14, 2010

• Next program: Compliance with Medicaid

third-party billing and payment obligations -September 28, 2010, 2 pm ET

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GOALS OF THIS PRESENTATION

– Review law and regulations requiring

self-disclosures by Medicaid providers

and ordering physicians

– Review requirement 7 of the “effective”

Medicaid compliance program for

prompt investigation and self-disclosure

– Review the process used by OMIG to

address self-disclosures

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Disclosure Authorities

• OMIG enabling legislation

– PHL § 32 (18)

• PPACA §6402

• False Claims Act (FCA)

• SSL §363-d(2)(g) and 18 NYCRR Part 521

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Public Health Law § 32 (18)

• [T]o, in conjunction with the commissioner,

develop protocols to facilitate the efficient

self-disclosure and collection of

overpayments and monitor such collections,

including those that are self-disclosed by

providers. The provider's good faith self-

disclosure of overpayments may be

considered as a mitigating factor in the

determination of an administrative

enforcement action.

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SECTION 6402 MEDICARE AND MEDICAID PROGRAM INTEGRITY

PROVISIONS

• ‘‘(d) Reporting and returning of overpayments

• ‘‘(1) In general—If a person has received anoverpayment, 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.”

PPACA

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SEC. 6402 (d) MEDICARE AND MEDICAID

PROGRAM INTEGRITY PROVISIONS

• ‘‘(2) Deadline for reporting and returning

overpayments—An overpayment must be

reported and returned under paragraph (1) by

the later of—

• ‘‘(A) the date which is 60 days after the date on

which the overpayment was identified; or

• ‘‘(B) the date any corresponding cost report is

due, if applicable.

PPACA

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FERA Amendments to the False Claims Act (FCA)- May 2009

1. Expand FCA liability for the retention of overpayments, even where there is no false claim

2. Add a materiality requirement to the FCA, defining it broadly

3. Expand protections for whistleblowers

4. Expand the statute of limitations

5. Provide relators with access to documents obtained by government

6. Expand FCA liability to indirect recipients of federal funds

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THE MAY, 2009 FERA Amendments to the False Claims Act (FCA)

and the matching 2010 Schneiderman-Silver NY FERA Amendments

1. Expand FCA liability to indirect recipients of

federal and state funds

2. Expand FCA liability for the improper

retention of overpayments, even where there

is no “knowing” false claim

3. Add a materiality requirement to the FCA,

defining it broadly

4. Expand protections for whistleblowers to

include contractors as well as employees

5. Expand the statute of limitations

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ADDITIONAL PROVISIONS OF 2010 NEW YORK FERA ACT

• Establishing anti-blacklisting protections against whistleblowers, so company “y” cannot refuse to hire a qualified worker because he or she reported company “x” for fraud;

• Clarification that whistleblowers who use the freedom of information act are not barred from suing a contractor for fraud because he or she created a public disclosure of information; and

• The first-in-the-nation ban on employers from suing employees who provide evidence of fraud to law enforcement in a False Claims Act case.

Governor Paterson signed into law on August 13, 2010; took effect August 27, 2010http://assembly.state.ny.us/leg/?default_fld=&bn=A11568%09%09&Text=Y

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Defendant violates FCA if he or she:

• “knowingly conceals or knowingly and

improperly avoids or decreases an

obligation to pay or transmit money or

property to the government” (new 31

U.S.C. 3729(a)(1) (G))

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Mandated Provider Compliance Programs

Every provider of medical assistance program

items and services ….shall adopt and implement

an “effective” compliance program

- Social Services Law § 363-d

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Social Services Law § 363-d and 18 NYCRR Part 521

• Published January 14th (draft), June 24th (adoption)

In Effect 10/1/09

• Requires:

– those subject to Articles 28 and 36 of the Public Health Law;

– those subject to Articles 16 and 31 of the Mental Hygiene Law;

and

– those that order services or supplies or receive reimbursement,

directly or indirectly, or submit claims for at least $500,000 in a

year …

to adopt/implement an “effective” compliance program.

• Annual certification by December 31 that provider has an

effective compliance program.

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Provider Compliance Programs - Elements

1. Written policies and procedures.

2. An employee vested with responsibility for day-to-day compliance

program operation.

3. Training and education of all affected employees and persons.

4. Communication lines to the responsible compliance position.

5. Disciplinary policies to encourage good faith compliance program

participation.

6. A system to routinely identify compliance risk areas.

7. A system for responding to compliance issues as they arise to include

identifying and reporting compliance issues to DOH and OMIG and

refunding overpayments.

8. A policy of non-intimidation and non-retaliation for good faith

compliance program participation.

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OMIG Compliance Review

Element 7:

Responding to Compliance Issues

�Prompt Investigation

�Proper Mandatory Reporting

�Self-Disclosures

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DEMONSTRATING AN EFFECTIVE COMPLIANCE PROGRAM

• The program meets the statutory requirements of the

Social Services Law and mandates imposed by CMS

on Medicaid providers (Structure)

• The program is “effective” (Operations)

– CULTURE (Do employees and contractors know about

the program? Do they trust it? Is it used?)

– PROCESS (How does the program identify risks and

potential overpayments? Respond to identified issues?)

– OUTCOMES (performance on OMIG measures)

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STATE OF NEW YORKOFFICE OF THE MEDICAID INSPECTOR GENERAL

800 North Pearl StreetAlbany, New York 12204

Self-Disclosure Guidance

March 12, 2009

http://www.omig.ny.gov/data/images/stories/self_disclosure/omig_provider_self_disclosure_guidance.pdf

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OMIG Disclosure Protocol – Advisory Committee

Deborah A. BrownGreater NY Hospital Association

Keir N. DougallKatten Muchin Roseman LLP

Paul DrogoschDeloitte & Touche, LLP

Joel DziengielewskiKPMG

Dan Heim NYAHSA

Steven L. IngrahamHarris Beach PLLC

Edward S. KornreichProskauer Rose

Brian McGovern Cadwalader Wickersham Taft

Kelly SaudersDeloitte & Touche, LLP

Mark W. ThomasRepresenting HANYS and HCAWilson Elser Moskowitz Edelman &

Dicker LLP

Ellen WeissmanHodgson Russ

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OMIG Disclosure Protocol

• Collaborative process, but OMIG’s document

• Highlights

– Recognize/reward for doing the right thing

– Transparent, fair and consistent process

– Broader than OIG’s application

– Assumes good-faith participation

– Providers retain due process rights—if we

disagree about appropriate resolution, provider

can exercise hearing rights after OMIG audit

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Provider self-disclosure guidance

Benefits

• Credibility of compliance officer and provider

• Demonstrate effectiveness of compliance program

• Possible:

– Flexibility of provider review

– Avoidance of interest for a pre-determined period

– Allow extended payback period

– Avoidance of exclusion, penalties

– Avoidance of a CIA (depending on facts)

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• Risks of Failure to Make Disclosure:

– PPACA 6402/FERA Liability

– Ineffective compliance program can be basis

for exclusion of organization or officers

– Accounting and internal reporting/IRS 990 (for

non-profits)

– OMIG may already know about the issue• Whistleblowers/qui tam complaints

• Hotline calls (1-877-87 FRAUD or 1-877-873-7283))

• Data mining and analysis

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Disclosures by calendar year

• 2008 59

• 2009 137

• 2010* 124

* year to date (September 10, 2010)

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EXAMPLES OF SELF-DISCLOSURES

• Hiring, retention of excluded persons by

providers• Excluded physician hired as pharmacist

• Existing employees not checked against exclusion lists

• Contract staff not checked against exclusion lists

– Billing for services ordered by excluded person

– REMEMBER: PAYMENT FOR ANY

SERVICE ORDERED BY, OR

PROVIDED BY, AN EXCLUDED PERSON

IS AN OVERPAYMENT REQUIRING

DISCLOSURE

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EXAMPLES OF SELF-DISCLOSURES

• Responding to OMIG projects• Deceased recipients

• Billing for home health, personal care during in-patient stay

• Billing separately for goods or services included in rate

• Billing for services by uncredentialed persons

• Failure of response by compliance officer or billing staff to

contact letters

• Compliance with Pharmacy Swipe Care Initiative

• Providers are responsible not only to respond to

OMIG project letters, but to assess whether

compliance failure goes beyond claims identified by

OMIG, and to disclose the additional claims.

• Roster billing, deceased patient billing

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EXAMPLES OF SELF-DISCLOSURES

• Conduct by employees, contractors, or

treating professionals• False time sheets/time allocations

• Certifications

• False progress reports/treatment plans

• Altered or destroyed patient records

• Created, modified, or altered records in preparation for or

during course of audit

• Theft from or abuse of patients

• Backdating records

• Stealing controlled substances from patients or inventory

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EXAMPLES OF SELF-DISCLOSURES

• Credit Balances

– If your balance sheet has a reserve

for payments due third parties, you

have an overpayment

– Note contrast with Medicare

program, which requires quarterly

reporting of credit balances on form

HCFA-838

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EXAMPLES OF SELF-DISCLOSURES

• PRESCRIPTION DRUG PRICE REPORTING AND

BILLING

– 340b violations (failure to pass along federal

discounted price to Medicaid by hospitals or health

centers)

– Failure to submit claim using cash price where

lower than Medicaid price

– Failure to charge “net of rebate” pricing

– “brown-bagging” of drugs which are included in

price of other covered service (e.g., anti-nausea

drugs for chemotherapy)

– Billing for drugs when patient not in facility

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Process - Returning Overpayments

• “report and return the overpayment to the state at the correct address” PPACA 6402

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

• OMIG’s correct address:

Office of the Medicaid Inspector General

Division of Medicaid Audit – Self Disclosure

Attention: John Daniels/Rick Tompkins

800 North Pearl Street

Albany, New York 12204

• Providers may use void process through CSC (the eMedNYclaims system) for smaller or routine claims.

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General process

• Identify issue

• Contact/notify OMIG

• Quantify issue

• Submit disclosure

• OMIG verification

• Reconciliation

• Repayment agreement/process

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Self Disclosure Letter content

• Complete description of circumstances surrounding the

disclosure. This should include identifying:

�Provider name, provider type, and Medicaid ID of the

billing provider;

� the service provided (including patient ID and dates of

service);

� the methodology of documenting and billing the service;

� the nature of the improper payment or other violation;

�how the improper payment or other violation was

identified

� amount of the overpayment by Medicaid.

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Self-Disclosure Letter content

� Identify the time period the payments encompass and why the

search was not expanded beyond that period.

� OMIG will not require or expect providers to look back

more than six years from the date of disclosure unless the

disclosure involves a base year cost report, or OMIG

determines that there is a basis to suspect fraud.

� Actions taken to stop the conduct and prevent reoccurrence.

� Any relevant facts including total amount billed and amount of

overpayment by Medicaid.

� Personnel involved in the improper payment, personnel who

found the problem, and personnel involved in rectifying the

problem.

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Self Disclosure Letter content

� Statutes, regulations and Medicaid program rules implicated. (if known)

�Name, phone number, correspondence address and email address of the disclosure contact person.

�Attachment of a CD containing an Excel file of the overpayment claims billed to Medicaid.

�Attestation of accuracy and completeness

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Process Issues

• Is there ongoing risk of harm to Medicaid patients

or Medicaid program which must be addressed?

• Does the identified issue or conduct require

disclosure under New York’s mandatory

compliance regulation or PPACA 6402?

• Timing of disclosure.

• Professional or outside assistance with disclosure

• Methods to quantify and document internal

investigation or review (data, records, interviews)

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Process

• Repayment Mechanisms

– Voids/adjustments

– Checks

– Withholds

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Practical Tips

1. Stop problem/protect patients

2. Disclose early (but definitely w/in 60 days)

3. Discuss proposed methodology w/OMIG

4. Use OMIG’s form @ www.omig.ny.gov under

compliance

5. Make complete submission

6. Provide full access to records

7. Don’t include a check until OMIG completes

verification

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9. Create a record to demonstrate to the government

that your organization conducted an appropriate

review

– Develop standard form to document employee’s internal

disclosure

– Document interviews

– Document evidence and means to determine if credible

– Record employees involved in deliberations and decisions

10. Review OMIG Web site, workplan, final audits,

Compliance Alerts, Medicaid Updates, and Webinars

Practical Tips

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Provider self-disclosure guidance

• Expectation of timely and truthful information

• Expectation of full access to records

• When an agreement cannot be reached on the amount of an

overpayment, the overpayment will be handled through the

prescribed audit process

• Some conduct will require disclosure or reporting to other entities

(e.g., certain claims for dual-eligible patients will involve billing

to both Medicare and Medicaid). Under PPACA 6402, providers

are required to make disclosures to both programs

Miscellaneous (but IMPORTANT)

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WHAT DOES OMIG DO WITH DISCLOSURES?

• We count the number and extent of disclosures as an outcome measure of our effectiveness as an agency

• We review them for accuracy, and consistency with the rules, and consult with program agencies on rules application

• We use them to plan compliance reviews, audits, investigations, match projects, and credit balance reviews of providers who have not disclosed

• We refer allegations of improper conduct of individuals discovered by the provider to the Division of Medicaid Investigations for review

• Upon completion, we send a close-out letter to the provider summarizing our resolution of the disclosure

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• Self-disclosure protocol

• Compliance materials (guidance coming soon)

• More than 2,000 provider audit reports, detailing

findings in specific industry

• Annual work plans

• Corporate Integrity Agreements

• New York excluded provider list

• Listserv

www.omig.ny.gov

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Conclusion

• Required to disclose

• Reasonable, timely handling

• Demonstrate effective compliance program

• We will be putting together a list of frequently

asked questions for the OMIG Web site based

upon your responses to this Webinar. Your

questions should be addressed to:

Wanda.Fischer@omig.ny.gov