Missouri Medicaid Audit and Compliance: Suspension of Medicaid Payments

1. Missouri Medicaid Audit and Compliance: Suspension of Medicaid Payments Presentation before the Missouri Bar’s 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 (573) 751-3399 (Telephone) (573) 526-4375 (Fax) Markus.Cicka@dss.mo.gov

2. Suspension of Medicaid Payments Based Upon Pending Investigations of Credible Allegations of Fraud

3. 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.pdf

4. 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.”

5. 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.

6. 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.

7. 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

8. 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

9. 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 provider’s alleged fraud are completed.

10. 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/fraudreferralperformancestandardsstateagencytomfcu.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.

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

12. 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

13. 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

14. Questions Markus P. Cicka, J.D., L.L.M. (Health Law)