July, 12, 2011

One of the few New York legislative victories to emerge this season was a bill (A.5686-A, Gottfried/S.3184-A) passed by both the Senate and the Assembly providing certain protections for practitioners in an Office of Medicaid Inspector General (OMIG) audit.

I have chosen to highlight this bill’s passage as an example of why protections are needed against payors and audits against practitioners. OMIG is a particularly scary agency because in its creation the legislature granted OMIG an enormous amount of authority. OMIG took that authority and began a series of fraud investigations against providers, the likes of which this State had not seen. When OMIG visited a facility it would bring a team, similar to SWAT, to infiltrate and compile data. So, the passage of a bill offering protections for practitioners dealing with OMIG - is, how do I say this? - A BIG DEAL!

The bill, which awaits the Governor’s signature, provides that:

- Recovery of payments made by OMIG to a practitioner may be taken by OMIG only after notice, and not less than 60 days after final agency action (which means the whole audit must be complete, including appeals, etc);

- OMIG may not re-audit something audited by another agency unless for good cause (the “good cause” provision opens the door to challenge OMIG’s audit decision);

- Providers are protected from penalty if they complied with agency policies or interpretations (which may not be changed retroactively);

- Where a recovery is claimed for a technical or administrative error, the provider must have a chance to re-submit;

- When extrapolation is used, there must be detailed notice of the methodology and it must be statistically valid.

Of course, all of the above points may sound a bit counter-intuitive, in that, of course practitioners should be afforded these basic rights in a record review or investigation. The point of today's article is that practitioners were NOT being afforded basic rights of having a final determination before having money taken from them, nor were they given the basic right of a comprehensible overview of the reasons why they were found to owe money back to Medicaid. Still, with the few protections afforded by the bill hopefully put into place, you should contact an attorney anytime you are contacted by OMIG to ensure that your practice is treated on a somewhat even playing field.

Another reason why I have brought this topic up is because with the creation of the OMIG Dental Fraud Unit and efforts ramping up against all practitioners in general, now is the time to ensure that any bills you are submitting or services you are ordering that are reimbursable by Medicaid funds (Medicaid-HMOs included) are substantiated with appropriate documentation.


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