Missouri Medicaid Audit and Compliance: Suspension of Medicaid Payments

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Missouri Medicaid Audit and Compliance
Suspension of Medicaid Payments

• Presentation before the Missouri Bars Health and
  Hospital Law Committee
• November 18, 2011
• Markus P. Cicka, J.D., L.L.M. (Health Law)
• Director Missouri Medicaid Audit and Compliance
• Missouri Department of Social Services
• 205 Jefferson St., 2nd Floor, P.O. Box 6500
• Jefferson City, MO 65102-6500
• [phone] (Telephone)
• [phone] (Fax)
• Markus.Cicka_at_dss.mo.gov

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Suspension of Medicaid Payments Based Upon
Pending Investigations of Credible Allegations of
Fraud
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Background

• Section 6402(h)(2) of the Affordable Care Act
• Federal Financial Participation (FFP) in the
  Medicaid program shall not be made with respect
  to any amount expended for items or services
  (other than an emergency item or service, not
  including items or services furnished in an
  emergency room of a hospital) furnished by an
  individual or entity to whom a State has failed
  to suspend payments under the plan during any
  period when there is pending an investigation of
  a credible allegation of fraud against the
  individual or entity as determined by the State,
  unless the State determines that good cause exits
  not to suspend such payments.
• Implementing Regulations (published February 2,
  2011)
• Effective date March 25, 2011
• http//edocket.access.gpo.gov/2011/pdf/2011-1686.p
  df

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Purpose

• Affordable Care Act Program Integrity
  Initiatives
• The new authorities offer more protections to
  keep those who are intent on committing fraud out
  of the programs, identifying and addressing
  fraudulent payment issues promptly, and ensuring
  the integrity of Medicare, Medicaid, and CHIP.
• Temporarily stopping payments to providers and
  suppliers in cases of suspected fraud. Under the
  new rules, if there has been a credible fraud
  allegation, payments should be suspended while an
  action or investigation is underway.
• Previously, States had the option to suspend, or
  withhold payments, where there was reliable
  evidence of fraud. The Affordable Care Act
  lowered the threshold from reliable evidence to
  credible allegation.

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Good Cause

• Specific requests by law enforcement that State
  officials not suspend (or continue to suspend)
  payment.
• State determines that other available remedies
  implemented by the State could more effectively
  or quickly protect Medicaid funds than would
  implementing (or continuing) a payment
  suspension.
• Provider furnishes written evidence that
  persuades the State that a payment suspension
  should be terminated or imposed only in part.
• State agency determines that certain specific
  criteria are satisfied by which recipient access
  to items or services would otherwise be
  jeopardized.

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Good Cause (continued)

• A State may, at its discretion, discontinue an
  existing suspension to the extent law enforcement
  declines to cooperate in certifying that a matter
  continues to be under investigation and therefore
  warrants continuing the suspension.
• State agency determines that a payment suspension
  (in whole or in part) is not in the best
  interests of the Medicaid program.
• The credible allegation focuses solely on a
  specific type of claim or arises from only a
  specific business unit of a provider and the
  State determines and documents that a suspension
  in part would effectively insure that potentially
  fraudulent claims were not continuing to be paid.
• The State determines that a payment suspension
  (whole/partial) is not in the best interests of
  the Medicaid program.

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Notice of Suspension

• Notify Medicaid Fraud Control Unit (MFCU) or
  other appropriate law enforcement agency of
  payment suspension
• MFCU could request delay of notification to
  provider
• Notice of Suspension to Providers
• Within 5 days of imposing suspension
• Up to 30 days if requested by law enforcement in
  writing to delay such notice
• Law enforcement can renew their requests for
  delay in sending the notice to providers up to
  two times but may not exceed 90 days

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Notice to Providers (continued)

• Content of Notice
• Payments are being suspended (Whole/partial) in
  accordance with 42 CFR 455.23
• General allegations/nature of suspension
• Suspension is temporary and cite the
  circumstances under which the suspension will be
  lifted
• Specify the types of Medicaid claims or business
  units of a provider for which the suspension is
  effective
• Provider has right to submit written evidence for
  consideration
• Specify applicable State administrative appeals
  process and relevant citations to State law

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Duration of Suspension

• Payment suspensions are temporary and will not
  continue after
• The State agency or prosecuting authorities
  determine that there is insufficient evidence of
  fraud by the provider or
• Legal proceedings related to the providers
  alleged fraud are completed.

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Referral to Medicaid Fraud Control Unit

• Fraud referral to MFCU or other appropriate law
  enforcement agency
• In writing
• Must occur no later than the next business day
  after the suspension is enacted
• Conform to CMS performance standards for
  suspected fraud referrals
• http//www.cms.gov/FraudAbuseforProfs/downloads/f
  raudreferralperformancestandardsstateagencytomfcu.
  pdf
• Fraud referral concerns can be addressed in MOU
  with State
• Quarterly Certification
• The State must request quarterly certifications
  from the MFCU that the matter continues to be
  under investigation.

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Implementation Status

• February 2, 2011 Final rule published
  http//edocket.access.gpo.gov/2011/pdf/2011-1686.p
  df
• March 25, 2011 Information Bulletin and
  Frequently Asked Questions issued
  http//www.cms.gov/cmcsBulletins/downloads/payment
  -suspensions-info-bulletin-3-25-2011.pdf

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Documentation

• Maintain for at least 5 years
• Notices of suspension
• Fraud referrals to MFCU or other law enforcement
  agency
• Quarterly certifications of the status of an
  investigation from MFCU
• Notices documenting the termination of a payment
  suspension
• Good Cause
• Suspension not imposed imposed only in part or
  discontinued
• Detailed information regarding the basis for the
  good cause and how long the good cause is
  expected to last

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Annual Report to the Secretary

• Categories of Information
• Nature of suspected fraud
• Basis for suspension
• Outcome of suspension
• Good cause to not suspend, discontinue or suspend
  only in part
• Amount of program dollars saved that are
  associated with each payment suspension
• Initial report April 2012

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Questions