A View From New York: Compliance Mandates You May See in Your State Health Care Compliance Association (HCCA) April 23, 2013 National Harbor, Maryland Carol Booth, Compliance Specialist NYS Office of Medicaid Inspector General - Bureau of Compliance What Will Be Covered: Elements and requirements of New York s mandatory compliance obligation New York State Office of the Medicaid Inspector General compliance program reviews - CPRs Certification requirements Social Services Law and Deficit Reduction Act 2 1
Office of Medicaid Inspector General (OMIG) Established in 2006 as an independent program integrity entity within New York s Department of Health (DOH) Our 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 high-quality patient care. 3 New York State s Social Services Law Social Services Law 363-d The legislature finds that medical assistance [Medicaid] providers may be able to detect and correct payment and billing mistakes and fraud if required to develop and implement compliance programs 4 2
OMIG s Bureau of Compliance Mission Statement: To educate, assist and assess Medicaid program providers in meeting their obligation to establish and operate effective compliance programs that will prevent or in the alternative detect and address fraud, waste and abusive practices within the Medicaid program. 5 Provider Obligations under Title 18 New York Codes, Rules and Regulations - NYCRR 18 NYCRR 521.1 General requirements and scope To be eligible to receive medical assistance payments for care, services, or supplies, or to be eligible to submit claims for care, services, or supplies for or on behalf of another person, the following persons shall adopt and implement effective compliance programs 6 3
Required Elements of a Compliance Plan 7 New York State Social Services Law 363-d. sub 2 and 18 NYCRR 521.3(c) Element 1: Written policies and procedures that describe compliance expectations as embodied in a code of conduct or code of ethics, implement the operation of the compliance program, provide guidance to employees and others on dealing with potential compliance issues, identify how to communicate compliance issues to appropriate compliance personnel and describe how potential compliance problems are investigated and resolved. 8 4
Element 2: Designate an employee vested with responsibility for the day-to-day operation of the compliance program; such employee s duties may solely relate to compliance or may be combined with other duties so long as compliance responsibilities are satisfactorily carried out; such employees shall report directly to the entity s chief executive or other senior administrator designated by the chief executive and shall periodically report directly to the governing body on the activities of the compliance program. 9 Element 3: Training and education of all affected employees and persons associated with the provider, including executives and governing body members on compliance issues, expectations and the compliance program operation; such training shall occur periodically and shall be made a part of the orientation for a new employee, appointee, or associate, executive and governing body member. 10 5
Element 4: Communication lines to the responsible compliance position, as described in Element 2, that are accessible to all employees, persons associated with the provider, executives and governing body members, to allow compliance issues to be reported; such communication lines shall include a method for anonymous and confidential good faith reporting of potential compliance issues as they are identified. 11 Element 5: Disciplinary policies to encourage good faith participation in the compliance program by all affected individuals, including policies that articulate expectations for reporting compliance issues and assist in their resolution and outline sanctions for: i. failing to report suspected problems; ii. iii. participating in non-compliant behavior; or encouraging, directing, facilitating or permitting either actively or passively non-compliant behavior. Such disciplinary policies shall be fairly and firmly enforced. 12 6
Element 6: A system for routine identification of compliance risk areas specific to the provider type, for selfevaluation of such risk areas, including but not limited to internal audits and as appropriate external audits, and for evaluation of potential or actual non-compliance as a result of such self-evaluations and audits, credentialing of providers and persons associated with providers, mandatory reporting, governance, and quality of care of medical assistance program beneficiaries. 13 Element 7: A system for responding to compliance issues as they are raised; for investigating potential compliance problems; responding to compliance problems as identified in the course of self-evaluations and audits; correcting such problems promptly and thoroughly and implementing procedures, policies and systems as necessary to reduce the potential for recurrence; identifying and reporting compliance issues to the Department of Health or the Office of Medicaid Inspector General; and refunding overpayments. 14 7
Element 8: A policy of non-intimidation and nonretaliation for good faith participation in the compliance program, including but not limited to reporting potential issues, investigating issues, self-evaluations, audits and remedial actions, and reporting to appropriate officials as provided in NYS Labor Law sections 740 and 741. 15 Compliance Program Reviews (CPRs) 16 8
Compliance Program Reviews (CPRs) 1. CPR - Desk Review 2. CPR - On-site Review Announced or Unannounced 3. CPR - Verification Review Unannounced 17 Certification Requirement 18 9
NYS Compliance Certification Requirement 18 NYCRR 521.3(b) Required Provider Duties Upon applying for enrollment in the medical assistance program, and during the month of December each year thereafter, a required provider shall certify to the department, using a form provided by the Office of the Medicaid Inspector General on its website, that a compliance program meeting the requirements of this Part is in place. 19 Federal Deficit Reduction Act of 2005 Certification Requirement If they are paid $5 million by NYS in Medicaid funds during a federal fiscal year, providers in NYS must also certify annually that they meet the requirements of the Federal Deficit Reduction Act of 2005. DRA requirements involve whistleblower protections and federal and state false claims act requirements, among others. 20 10
Consequences for Failure to Meet the Mandatory Compliance Program Obligation 21 Authority 18 NYCRR 521.4(c) Determination of Adequacy of Compliance Program In the event that the commissioner of health or the Medicaid inspector general finds that the required provider does not have a satisfactory program, the provider may be subject to any sanctions or penalties permitted by federal or state laws and regulations, including revocation of the provider s agreement to participate in the medical assistance program. 22 11
Join our listserv; receive information about upcoming events (sign-up information on OMIG home page) Follow us on Twitter: @NYSOMIG LinkedIn Dedicated e-mail address: OMIG and Compliance information@omig.ny.gov compliance@omig.ny.gov Audit reports, positive reports and protocols And much more on www.omig.ny.gov 23 Compliance Officers, thank you for your diligence and oversight of compliance programs keeping them alive and fresh. Management, thank you for your hard work and dedication by supporting compliance officers which helps protect the integrity of our national healthcare systems and programs. Most of all, we thank all of you for your time here today. 24 12
Carol Booth, RN, CHC Compliance Specialist New York State Office of the Medicaid Inspector General 800 North Pearl Street, Albany, NY 12204 (518) 408 0401 (OMIG s Compliance Line) compliance@omig.ny.gov carol.booth@omig.ny.gov 25 A View From New York: Compliance Mandates You May See in Your State Health Care Compliance Association (HCCA) April 23, 2013 National Harbor, Maryland *** Susan V. Kayser, Partner, Duane Morris LLP 2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm and Affiliate Offices New York London Singapore Los Angeles Chicago Houston Hanoi Philadelphia San Diego San Francisco Palo Alto Baltimore Boston Washington, D.C. Las Vegas Atlanta Miami Pittsburgh Newark Boca Raton Wilmington Cherry Hill Lake Tahoe Ho Chi Minh City Duane Morris LLP A Delaware limited liability partnership 13
Background Federal Law/Affordable Care Act Mandate for nursing home compliance plans Effective date: March 23, 2013 Status/federal regulations New York/Social Services Law/OMIG Medicaid s health care provider compliance programs mandated since 2009 Your state may look to NY for guidance 27 Effective Compliance Program Effective is the key word Not just a nice looking plan sitting on the shelf Integration into daily operations is critical 28 14
Effective Compliance Plan Likely outcomes: Prevent fraud, waste, abuse Detect fraud, waste, abuse that may occur Correct any issues detected Good business practice, generally OMIG: extensive educational efforts 29 Compliance Program Required Provider Duties Every required provider shall adopt and implement an effective compliance program. Required providers compliance programs shall be applicable to: 1) Billings; 2) Payments; 3) Medical necessity and quality of care; 4) Governance; 5) Mandatory reporting; 6) Credentialing; and 7) Other risk areas that are or should with due diligence be identified by the provider (provider specific issues) Element 6 30 15
Written Policies and Procedures Code of Conduct is distinct from other aspects of compliance program Distribute to employees Document implementation of compliance program Keep governing body in the loop 31 Designation of Compliance Officer Who should be the Compliance Officer? - Employee (vested) Position of authority Approachable Knowledgeable Committed Report directly to governing body, at least periodically Compliance Officer with other job responsibilities? 32 16
Training Train and re-train Orientation and ongoing in-services Document training Include governing body Ensure trainer s understanding of applicable laws 33 Communications to Compliance Officer Provide various methods for making a report/asking questions, including anonymous reports Posters on premises Train and re-train Keep lines of communication open 34 17
Disciplinary Policies Announce and enforce consequences for: failure to report problems acting contrary to standards of conduct failure to follow compliance P&P Encourage and reward meaningful participation Include corporate compliance as evaluation factor 35 Identification of Risk Areas Systematic approach - develop a system for risk identification Internal or external audits? How identify audit topics? OIG/OMIG Work Plans OIG/OMIG alerts and reports OIG/AG investigations OMIG audit initiatives/audit findings Weaknesses identified internally 36 18
Identification of Risk Areas Possible Audit Areas for Nursing Homes three-day hospital stay MDS assessment dates Physical therapy requirements Physician certification Atypical antipsychotic drugs (off-label) Cost reporting Excluded employees and ordering providers 37 Responding to Compliance Issues Form a compliance committee? Develop investigation protocol Involve outside counsel? Similar to survey plan of corrections: determine cause, correct, monitor for reoccurrence 38 19
Responding to Compliance Issues If overpayments identified Report and return: mandated by Affordable Care Act, 6402(d) Involve counsel? OMIG Self-Disclosure Guidance 39 Certification Requirement Procedure has evolved How can a provider determine whether its program is effective? 40 20
Certification Requirement OMIG Self-Assessment Tool Introduced 10/26/2010 in a Medicaid Alert Guides the evaluation process 41 Provider Obligations Governing Body Tone from the top The buck stops here 42 21
Contact Information Susan V. Kayser, Esq. Partner Duane Morris LLP 1540 Broadway, New York, NY 10036 4086 (212) 692 1058 svkayser@duanemorris.com 43 22