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
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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.
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Office of Medicaid Inspector General (OMIG)
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…”
New York State’s Social Services Law
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“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.”
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OMIG’s Bureau of Compliance Mission Statement:
18 NYCRR § 521.1General requirements and scope
“To be eligible to receive medical assistance payments for care, services, or supplies, or tobe eligible to submit claims for care, services,or supplies for or on behalf of another person,the following persons shall adopt andimplement effective compliance programs…”
Provider Obligations under Title 18
New York Codes, Rules and Regulations - NYCRR
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Required Elements of a Compliance Plan
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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.
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► 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.
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► 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.
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► 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.
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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. participating in non-compliant behavior; or iii. encouraging, directing, facilitating or permitting
either actively or passively non-compliant behavior.
Such disciplinary policies shall be fairly and firmly enforced.
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► Element 6: A system for routine identification of compliance risk areas specific to the provider type, for self-evaluation 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.
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► 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.
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► Element 8: A policy of non-intimidation and non-retaliation 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.
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Compliance Program Reviews (CPRs)
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Compliance Program Reviews (CPRs)
1. CPR - Desk Review 2. CPR - On-site Review
Announced or Unannounced3. CPR - Verification Review
Unannounced
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Certification Requirement
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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.”
NYS Compliance Certification Requirement
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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.
Federal Deficit Reduction Act of 2005
Certification Requirement
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Consequences for Failure to Meet the Mandatory Compliance Program Obligation
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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.”
Authority
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Join our listserv; receive information about upcoming events (sign-up information on OMIGhome page)
Follow us on Twitter: @NYSOMIG LinkedIn Dedicated e-mail address: OMIG and Compliance
[email protected]@omig.ny.gov
Audit reports, positive reports and protocols And much more on www.omig.ny.gov
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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.
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Carol Booth, RN, CHCCompliance Specialist
New York State Office of the Medicaid Inspector General
800 North Pearl Street, Albany, NY 12204(518) 408‐0401 (OMIG’s Compliance Line)
[email protected]@omig.ny.gov
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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
www.duanemorris.com
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
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“Effective” Compliance Program
• “Effective” is the key word– Not just a nice looking plan sitting on the shelf– Integration into daily operations is critical
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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
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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
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Compliance Program Required Provider Duties
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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
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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
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Training
• Train and re-train• Orientation and ongoing in-services• Document training• Include governing body• Ensure trainer’s understanding of applicable
laws
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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
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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
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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
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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
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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
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Responding to Compliance Issues
• If overpayments identified– Report and return: mandated by Affordable Care
Act, § 6402(d)– Involve counsel?
• OMIG Self-Disclosure Guidance
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Certification Requirement
• Procedure has evolved• How can a provider determine whether its
program is “effective”?
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Certification Requirement
• OMIG Self-Assessment Tool– Introduced 10/26/2010 in a Medicaid Alert– Guides the evaluation process
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Provider Obligations
• Governing Body– Tone from the top– The buck stops here
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Contact Information
Susan V. Kayser, Esq.Partner
Duane Morris LLP1540 Broadway, New York, NY 10036‐4086
(212) 692‐1058
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