House Bill 1743 Senate Bill 826. By: Carla J. Cox. Jackson Walker L.L.P. Austin, Texas (512) 236-2000. House Bill 1743 Amendments to Sections 32.0321 regarding Medicaid Fraud Prepayment Reviews.
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By: Carla J. Cox
Jackson Walker L.L.P.
Prepayment reviews of a claim for Medicaid reimbursement to determine whether claim involves fraud or abuse
Payment may be withheld for 5 working days for prepayment review without notice.
Postpayment holds on payment of future claims if department has reliable evidence of:
Notice – Provider must be given notice of postpayment hold not later than 5th working day after imposition of hold
Expedited administrative hearing is available on timely written request by provider. Hearing must be requested within 10 days of receipt of notice of hold.
Hearing – Department only has to make a prima facie case that the evidence it relied on is relevant, reliable and credible and material to the issue of fraud.
Department does not have to prove that fraud actually occurred.
Informal resolution – Department to adopt rules to provide for informal resolution.
Provider has 10 days from date of notice to seek informal resolution.
Request for informal resolution does not extend deadline for requesting expedited hearing.
Department (but not provider) may request that expedited hearing be stayed pending completion of informal review.
Actions prohibited (continued):
1-c) Soliciting or receiving payments in cash or in kind to induce a person to purchase, lease or order items that are paid for by the Medicaid program.
1-d) Paying or offering to pay any remuneration to induce a person to refer an individual to another person for Medicaid services.
1-e) Paying or offering to pay any remuneration to induce a person to purchase, lease or order items that are paid for by the Medicaid program.
1-f) Providing an inducement to a individual, recipient, provider or employee of a provider for the purpose of influencing a decision regarding selection of a provider of Medicaid services or goods paid for by the Medicaid program.
Generally accepted business practices, as determined by department rule, including
Conducting a marketing campaign
Providing token items of minimal value that advertise a trade name
Providing complimentary refreshments at an informational promotional meeting
Conduct authorized by the federal safe harbor provisions
The amount paid as a result of the violation plus interest;
AND an administrative penalty = two times the amount paid;
Plus $5,000-$15,000 for a violation that results in an injury to an elderly or disabled person and a 10 year exclusion from the Medicaid program; or
Up to $10,000 for each violation that does not result in an injury to an elderly and a three year exclusion from the Medicaid program.
Department may waive exclusion based on criteria to be set out by rule.
Violation is a state jail felony
Attorney General can prosecute with the consent of local prosecutor
REPORTING RESIDENT DEATHS
There are two different reporting requirements under Senate Bill 826
First Reporting Requirement:
Article 49.24 of the Texas Code of Criminal Procedure
Facility superintendent or general manager (i.e. the administrator or their designee) must report the death of
Individual under the care, custody or control, or residing in the facility
To the Attorney General’s Medicaid Fraud Control Unit whenever they are required by Article 49.04 to report the death to a justice of the peace.
Article 49.04 of the Texas Code of Criminal Procedure
Requires that if a resident dies in a hospital or other health care facility and an attending physician is unable to certify the cause of death:
Death must be reported to a justice of the peace of the precinct in which the facility is located.
First Rule of Reporting Resident Death – Report the death of a resident who dies in your facility to the Attorney General and to the Justice of the Peace if the resident’s attending physician is unable to certify the cause of death
Educate your attending physicians:
Many physicians do not actually certify a resident’s cause of death until after the reporting deadlines. Attending physicians need to be aware that if they are unable to certify a cause of death, the death will have to be reported.
When a resident dies, ask the attending physician if he will be able to certify the resident’s cause of death. If the answer is no, file a report.
Second reporting requirement:
Article 49.25 of the Texas Rules of Criminal Procedure
When the general manager of an institution becomes aware of a patient/resident death under the circumstances set out in Section 6(a) of Article 49.25, the facility manager must notify:
The medical examiner or the city or county police
The Attorney General’s Medicaid Fraud Control Unit
These reporting requirements apply if the administrator is aware of a death even if the death occurs outside the nursing home.
Note: Subsection 8 above requires reporting of the death to the county medical examiner while Section 49.24 requires that the death be reported to the justice of the peace. Therefore, when the attending physician cannot be certain of the cause of death, it appears that you must report to the justice of the peace, the medical examiner and the Attorney General’s Medicaid Fraud Control Unit.
Medicaid Fraud Control Unit’s Web Site
Requires provider to enter provider ID # in order to get copy of the form to fill out
AG’s August 29, 2003 letter to providers
States that the preferred method of filing is for the provider to fill out the form on-line and submit it electronically to the AG’s office
Report may also be faxed to the AG’s office
Suggest that you print out form and have it reviewed by appropriate corporate personnel or legal counsel before submitting
Medicaid Fraud Control Units of the Attorney General’s Office
The Office of Investigations and Enforcement (HHSC) – this will become a part of the newly created Office of the Inspector General
Newly created OIG is budgeted to have 316 FTE’s
The Office of the Inspector General of the US Department of Health and Human Services (OIG) – Also investigates Medicare Fraud
As a result of the combined efforts of the MFCU, OIG and federal prosecutors, there were 44 Medicare/Medicaid fraud convictions in Texas in FY02 and over $17 million in recoveries.
Nationwide in FY02, 3448 individuals and entities were excluded.
The MFCU currently reviews all 2567s and the resolution of complaints of abuse. MFCU may independently investigate suspected abuse even if TDHS has cleared the facility.
Have a plan:
1. Establish a contact person and a backup contact person who will be the primary contact for the investigator. Require that the contact person or backup contact be contacted immediately when the investigator enters the facility.
2. Write down the name(s) and position(s) of the investigator or agent. Determine if the investigator has a search warrant and, if so, request a copy of the search warrant. A copy of any search warrant should be immediately provided to legal counsel.
3. It may be prudent to contact legal counsel early on in the investigation.