Office of the Medicaid Inspector General (OMIG) Investigations and More

Transcription

1 Office of the Medicaid Inspector General (OMIG) Investigations and More June 28, 2017 Speaker: Richard A. Marchese, Jr., Esq. Woods Oviatt Gilman LLP ERIE INSTITUTE OF LAW

2 RICHARD A. MARCHESE, ESQ. Partner, Woods Oviatt Gilman LLP Direct: Fax: Practice Areas Elder Law/Long Term Health Care and Medicaid Planning Special Needs Planning Family Wealth Planning Health Care Education New York Law School, JD State University of New York at Albany, BA Bar Admissions State of New York United States District Court for the Western District of New York Richard A. Marchese is a Partner in the firm's Elder Law and Health Care Practice Group responsible for handling all elder law and health care issues. He concentrates his practice in Medicaid and Estate planning, Social Security, Medicare and Medicaid eligibility and recovery matters, asset protection, issues of spousal support, and the use of trusts in Medicaid planning. Mr. Marchese also provides counsel to health care providers in matters of compliance with federal and state regulations, defense of government audits and investigations, voluntary self-disclosures, corporate compliance and professional licensure issues. Prior to joining the firm, Mr. Marchese served for over fifteen years as Chief Counsel to the Monroe County, N.Y. Department of Social Services, advising the Chronic Care, Home Care and Adult Protective units at that agency. He was the director of the Monroe County Provider Fund, Waste and Abuse Demonstration Project, and he now represents Medicaid providers in matters of compliance with government regulations and defense against government audits.

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85 6/28/2017 The New York State OMIG audits, compliance, self-disclosures and more Richard A. Marchese, Jr., Esq. Woods Oviatt Gilman LLP (585) The New York State Office of the Medicaid Inspector General What is the OMIG? 1

86 6/28/2017 The OMIG Mission of the OMIG Who is the OMIG? Dennis Rosen (current). First OMIG was James G. Sheehan was viewed as heavy-handed. Mr. Sheehan Mission to prevent and detect fraud, waste and abuse and recover improperly expended Medicaid funds. 2

87 6/28/2017 New York State Attorney General Medicaid Fraud Control Unit The MFCU. Investigates criminal fraud. Upcoding. Double billing. Billing for unnecessary services. Tension between the MFCU and the OMIG. OMIG website Everything is out in the open. Webinars, publications, audit protocols, final audits, ALJ decisions, corporate integrity agreements. Used to be a lot of secrecy no more. 3

88 6/28/2017 Representing a health care provider that bills Medicaid in New York Billing Medicaid shaking hands with the government. Standing up for the veracity and accuracy of claims, the documentation of such claims, and the legitimacy of those who are providing the services and imputing the claims. Representing a health care provider that bills Medicaid in New York Must be cognizant of collateral investigations and collateral consequences! Are (will) the feds become involved? Will licensing of providers be impacted? Will the OMIG publicize your matter? The earlier you are involved as counsel, the better off your client will be. 4

89 6/28/2017 Record Keeping Medicaid providers are required, as a condition of enrollment in the Program, to prepare and maintain contemporaneous records demonstrating their right to receive payment from the Medicaid Program. The information provided in relation to any claim must be true, accurate and complete. The Government knows all! Salient Software. Used to find targets and anomalies in Medicaid billing. Audits Compliance plans Self-disclosures Negotiating Litigating Exclusions 5

90 6/28/2017 Case of the Pharmacy and Dr. Welby Accuracy versus speed. Pressure to maximize billings. OMIG Audits Death by a thousand paper cuts! Claims audits and reimbursement rate audits. First Notice Audit Engagement Letter (Notice of Audit). Audit can go back six years. Engagement letter will set out time period under review. Should the attorney be notified? 6

91 6/28/2017 Know the Audit Protocol! Make sure the protocol for the time period in question is used. Run mock audits (internal audits) based on the published protocols. From the OMIG s point of view, ignorance is not a defense. The Entrance Conference The Audit commences with the Entrance Conference, which must be held on site within 60 days of the engagement letter. What is the time period in question? Will the audit consist of: All claims within a specific time period? Specific types of claims? A randomly selected sample of claims (usually 100 or 200)? 7

92 6/28/2017 Random sampling of paid claims The dreaded extrapolation projecting of failed claims over the whole universe of claims. Obtain details at the entrance conference. 18 NYCRR (g) An extrapolation upon an audit utilizing a statistical sampling method certified as valid will be presumed in the absence of expert testimony and evidence to the contrary, to be an accurate determination of the total overpayments made or penalty to be imposed. Extrapolation Challenge to extrapolation must underpayments be considered? In this case, yes! Bulmahn v. NYS OMIG and DOH, 106 A.D.3d 1504 (4 th dept. 2013) Final Audit Report Review of 820 River Street, Inc. illustrates the severe impact of extrapolation. 8

93 6/28/2017 Field Audit Should attorney be present? Ask for all OMIG requests to be made in writing or by e- mail. Make copies of everything provided to auditor. All questions asked of staff should be referred to audit response team. Exit Conference Should attorney attend Yes. Chance to make your case to the auditor. Last opportunity to provide documentation. Face-to-face contact is always better than communicating by or letter. 9

94 6/28/2017 Draft Audit Report 30 days to respond to report. Failure to object to any adjustment or disallowed claim will preclude raising such objections in further proceedings! (18 NYCRR 517.5) Must put all your cards on the table. Final Audit Report Must be furnished within 40 days of the draft report, or 40 days from receipt of your objections (18 NYCRR 517.6). Must inform provider of right to appeal by requesting an administrative hearing within 60 days of date of the report beware of statute of limitations! 10

95 6/28/2017 Negotiate? Settle? Beware of statute of limitations! request a hearing to preserve rights! Matter of St. Barnabas Hospital Audit # Affirmed in St. Barnabas Hosp. v. State of New York Office of the Medicaid Inspector Gen., 2015 N.Y. Misc. LEXIS 1685 Challenging the audit at an administrative hearing Risk! Adjusted lower confidence level versus adjusted point estimate. Lower number comes off the table if you request a Fair Hearing. If you choose not to settle this audit through re-payment of the adjusted lower confidence limit, you have a right to challenge these findings where the OMIG will seek to defend the adjusted point estimate 11

96 6/28/2017 The Administrative Hearing Matter of Christian Ambulette, Inc., Audit # OMIG sought recovery of overpayment of $2,154, At issue: Payment to a provider of ambulette services will only be made for services documented in contemporaneous records in accordance with 18 NYCRR Matter of Christian Ambulette, Inc., Audit # All claims at issue involved transportation of Medicaid recipients to and from a kidney dialysis center. OMIG argued that the time of service requirements were inferred. ALJ reversed the findings of the OMIG, and reduced the overpayment. 12

97 6/28/2017 Judicial challenge Again, beware of statute of limitations for an Article 78 Proceeding (four months from the date of the hearing decision). OMIG will seek interest tacked on to reimbursement request. OMIG Self-Disclosure Program Self-policing. Designed to encourage providers to investigate and report matters that involve possible fraud, waste, abuse or inappropriate payment of funds. Self-disclosure and repayment of overpayments within 60 days of identification is mandatory under section 6402(a) of the ACA. 13

98 6/28/2017 Self-Disclosure What is the date of identification? How far back should the provider investigate? Use of provider statistical sampling must be approved by the OMIG. OMIG generally good to work with as they want to encourage self-disclosure. Provider Compliance Programs Mandatory for all providers who claim or bill over $500,000 to Medicaid in any given year. NYS SSL 363-d, 18 NYCRR Part 521 Written policy Compliance officer Training and education Open lines of communication Policy of non-intimidation and non-retaliation 14

99 6/28/2017 Compliance Annual training for Board of Directors. Annual certification with the OMIG. Designate an employee vested with responsibility for compliance (i.e., a compliance officer). Exclusion The Medicaid Death Penalty! Exclusion checks OIG and OMIG exclusion lists Applies to all providers, nurses, staff, coders, billers (including contractors and sub-contractors) Critical to do an exclusion check on a periodic basis 15

100 6/28/2017 Publicity OMIG loves to make public pronouncements Try to limit as much as possible Your role as counsel Get involved as early on as possible in the audit process. Communicate with OMIG as much as possible try to limit client communication. Know the protocols for audits that apply to your client encourage mock audits. Think through very carefully about pros and cons of selfdisclosing. 16

101 6/28/2017 Thank You! Richard A. Marchese, Jr., Esq. Partner Direct Dial: Direct Fax: Mobile: