2/14/2014 DEALING WITH THE TEXAS OIG. Do not represent the Texas Health and Human Services Commission Office of Inspector General.

Transcription

1 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. 1

2 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 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 2

3 GOVERNMENT CODE 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 3

4 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 4

5 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 5

6 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. 6

7 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 7

8 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 8

9 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 9

10 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 10

11 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

12 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 12

13 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 13

14 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 14

15 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