nelson ppt [read-only]
TRANSCRIPT
2/14/2014
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DEALING WITH THE TEXAS OIG
HCCA Southwest Regional Conference
Grapevine, Texas
February 21, 2014
DISCLAIMERS
�Do not represent the Texas Health and Human Services Commission Office of Inspector General.
�Do not speak on behalf of DLA Piper LLP (US). Personal opinions only.
�Not to be construed as legal advice. Each case will differ.
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FOUNDATIONS
AUTHORITY CLARIFIED
�Authority vested in OIG rather than HHSC
�Adds “prevention” and “detection”
�Adds “waste”
�Adds “audit, inspection, and review”
�Authority includes any state-administered health or human service program that is wholly or partly federally funded
GOVERNMENT CODE § 531.102
�Office of Inspector General responsible
�Prevention, detection, audit, inspection, review, and investigation
�Fraud, waste, and abuse
�Provision and delivery of
�All health and human services in the state
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GOVERNMENT CODE § 531.102
� Including state-administered health or human services that are wholly or partly federally funded
�Enforcement of state law relating to those services
�HHSC may obtain necessary information or technology
�Statute does not limit any other agency’s authority
FEDERAL COORDINATION
�Federal funding of Medicaid at approximately 60%
�State must report and repay any identified overpayments within 60 days or one year if related to fraud or abuse
�State must refund the federal share of that overpayment unless provider bankrupt or out of business
SIGNIFICANT MATTERS
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MEDICAID INCREASING
�Even without expansion, the Exchanges will capture some people currently eligible for Medicaid but unenrolled
�Estimated 300,000 new enrollees by end of 2014
�Assuming no poverty rate increases
�States reaching out to beneficiaries are seeing higher than expected growth though Exchanges
STAFFING EXPANSION
�Legislature authorized 127 new investigators and auditors
�New Medical Director and Dental Director
�Ensure that a qualified expert reviews
�Medical necessity findings and
�Quality of care findings
�Prior to any payment hold, recoupment, or penalties
STAFFING EXPANSION
�Legislature added five commissioned peace officers to the OIG Medicaid Provider Integrity section
�Administratively attached to Department of Public Safety.
�Must obtain Attorney General approval for some activities
�Access to certain databases and information
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EXPANDED FUNCTIONS
�New Intelligence Unit in Enforcement:
�LYNXeon graph pattern analytics
�Identified $ 100 M in suspicious claims by last June
�SSLC investigations of abuse, neglect, or exploitation extended to State Hospitals
PERENNIAL ISSUES
NEW RULES - INVESTIGATIONS
�Preliminary Investigation
�Begins within 30 days of receiving complaint
�Settlement discussions to avoid further investigation
�Routine payment correction by fiscal agent if no wrongdoing found
�Forward for full investigation
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NEW RULES - INVESTIGATIONS
�Preliminary report with findings
�Allegation
�Evidence reviewed
� Procedures used in preliminary investigation
�Findings
�Whether full investigation is warranted
NEW RULES - INVESTIGATIONS
�After Preliminary Investigation
�Full investigation if warranted
�Annual training for investigators required
�OIG required to post description and video on its website explaining process for determining payment holds
RULE AMENDMENT - AUTHORITY
�preventing, detecting, auditing, inspecting, reviewing and investigating fraud, abuse, overpayments, and waste in the provision and delivery of Medicaid and all other state-administered HHS programs and services that are wholly or partly federally funded;
�ensuring compliance with state law relating to the provision of health and human services.
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RULE AMENDMENTS - SANCTIONS
�New Violations
�Treating or billing for service to child not accompanied by authorized adult
�Privacy violations in marketing
�MCO failure to obtain prior authorization for marketing
�HITECH incentive program compliance
RULE AMENDMENTS - SANCTIONS
�Reinstatement
�Written finding of good cause required
�Contract cancellation
�Exclusions
DUE PROCESS - NOTICE
�Specific Basis of the Debt or Overpayment
�Description of Supporting Facts
�Representative Sample of Documents
�Extrapolation Methodology
�Calculation of Debt or Overpayment
�Amount of Debt or Overpayment
�Description of Due Process Remedies
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DUE PROCESS – INFORMAL RESOLUTION
� Informal Resolution Meetings (IRM)
�Provider Must Request Within 30 Days
�OIG Schedules IRM Within 60 Days
�OIG Gives 30 Days’ Advance Notice of IRM
�OIG Schedules Later Date Upon Provider’s Request
DUE PROCESS – INFORMAL RESOLUTION
� Informal Resolution Meetings (IRM)
�OIG Records IRM at No Expense to Provider
�Provider May Request Second IRM
�OIG Schedules Second IRM Within 45 Days and Gives 20 Days’ Advance Notice of Setting
DUE PROCESS - APPEALS
�Contested Case Hearings
�Payment Hold heard at SOAH
�Other Sanctions have Choice of Forum
�Provider Pays One-Half of SOAH Costs
�Provider Pays One-Half of Court Reporter Costs
�OIG Will Produce Estimate and Collect Costs in Advance
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DUE PROCESS - APPEALS
�Contested Case Hearings
�OIG Will Schedule Hearing Within 60 Days of Receiving Cost Deposit
�Trial in Travis County District Court
�Substantial Evidence Review
NON-RECURRING SUBJECTS
INITIATIVES – HOSPITAL UR
�New Hospital Utilization Review Rules
�Present on Admission conditions are grounds for disallowance
�“Any other DRG error” may be grounds for conducting a review
�Rule refers to policy in defining observation stay period
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INITIATIVES - WHISTLEBLOWER
�Election of Alternate Remedy
�Attorney General elects to work with OIG in an administrative hearing
�Whistleblower’s private attorney also prosecutes
�Cooperation between OIG, Attorney General, and private counsel against the provider
INITIATIVES - WHISTLEBLOWER
�Election of Alternate Remedy, Continued
�OIG access to whistleblower’s evidence
�Seal partially lifted in favor of OIG
�Relator identified, interviewed, or deposed
�Inside operational information
�Outside Counsel Contracts
THORNY SITUATIONS
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CHALLENGES – ORTHO AND DENTAL
�Mixed Results from Appeals
�First Major Opinion
�Validated OIG’s legal basis for action
�Validated OIG’s interpretation of law
�Accepted Provider’s interpretation of policy
�Found Provider’s testimony more persuasive than OIG’s expert witness
CHALLENGES – ORTHO AND DENTAL
�Mixed Results from Appeals
�Second Major ALJ Opinion re Orthodontics
�Policy subject to professional interpretation
�Not fraud because OIG did not evaluate every patient
�Disregarded OIG’s expert witnesses
�Technical violations did not support payment hold
CHALLENGES – ORTHO AND DENTAL
Election of Alternate Remedy
�ALJ Denied Participation of whistleblower in one case
�Second Major ALJ Opinion re Orthodontics was first alternate remedy proceeding
�Two Hearings in Early 2014
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LESSONS LEARNED - ORTHO AND DENTAL
�Unclear policy hard to enforce
�State held to proving its exact allegations
�ALJs imposed proportionality and reasonableness onto technical basis for sanctions
�Battle of experts decided in favor of Providers
�ALJs unpersuaded by modest sampling
CHALLENGES – HEARING AIDS
�Rule required billing at lowest of actual acquisition cost, invoice, or published fee
�HHSC policy published a fee schedule
�HHSC staff instructed verbally to bill the published fee or the usual and customary cost
�Providers billed according to the schedule, many times higher than acquisition cost
�OIG sought to recoup the difference or disallow payments
CHALLENGES – HEARING AIDS
�Providers complained, asking for clarity
�Providers asked HHSC to change the rule
�HHSC declined to change the rule and issued guidance that going forward, OIG would enforce as written
�OIG declined retroactive enforcement and published guidance that it would begin enforcing as written
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LESSONS LEARNED – HEARING AIDS
�A rule has the force of law. Policy does not.
�Cannot rely on verbal representations of agency staff
�Different divisions of agency have competing and conflicting interests, and they may contradict each other
�Concerted stakeholder efforts may help alleviate conflicted situations
GOOD FOR YOU
PRACTICAL ADVICE: ON-SITE
�Be nice! They are walking into an unknown situation.
�Keep copies of everything you provide.
� If possible, Bates stamp the copies you deliver and a copy for yourself
�32 field offices
�Transfers to reviewing experts and back
�May transfer to other agencies
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PRACTICAL ADVICE: AFTER ON-SITE
�Review the same charts and internal data you provided
�Rectify any overpayments you find
�Claims administrator
�Voluntary disclosure
� Identify and begin to address root causes
�Make needed improvements to compliance plan
PRACTICAL ADVICE: SANCTIONS
�Fight or Flight Decision
�No Complaining or Whining
�OIG required to collect from beneficiaries, too – even if overpayment due to a state error
�New Due Process Rights
�Assess Findings for weaknesses rejected in previous cases
PRACTICAL ADVICE - SANCTIONS
�State must repay 60% of overpayment findings to federal government
�Whether or not recouped from provider
�State’s essential choices limited to:
�Proceed to adverse ruling from ALJ
�Negotiate for lesser repayment and absorb fiscal loss of the federal refund
�Drive the provider into bankruptcy
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PRACTICAL ADVICE
�Make contact with the person indicated on the notice letter.
�During IRMs and other meetings, be polite. Intimidation tactics do not work.
�Articulate valid reasons why the OIG should reconsider its findings.
CONTACT INFORMATION
Karen Nelson
Of Counsel
DLA Piper LLP (US)
401 Congress Avenue
Suite 2500
Austin, TX 78701-3799
512-457-7000