§ 363-D — Provider compliance program

§ 363-d. Provider compliance program. 1. The legislature finds that\nmedical assistance providers may be able to detect and correct payment\nand billing mistakes and fraud if required to develop and implement\ncompliance programs. It is the purpose of such programs to organize\nprovider resources to resolve payment discrepancies and detect\ninaccurate billings, among other things, as quickly and efficiently as\npossible, and to impose systemic checks and balances to prevent future\nrecurrences. The legislature accordingly declares that it is in the\npublic interest that providers within the medical assistance program\nimplement compliance programs. The legislature also recognizes the wide\nvariety of provider types in the medical assistance program and the need\nfor compliance programs that reflect a provider's size, complexity,\nresources, and culture. For a compliance program to be effective, it\nmust be designed to be compatible with the provider's characteristics.\nAt the same time, however, the legislature determines that there are key\ncomponents that must be included in every compliance program and such\ncomponents should be required if a provider is to be a medical\nassistance program participant. Accordingly, the provisions of this\nsection require providers to adopt effective compliance program\nelements, and make each provider responsible for implementing such a\nprogram appropriate to its characteristics.\n 2. Every provider of medical assistance program items and services\nthat is subject to subdivision four of this section shall adopt and\nimplement a compliance program. The office of Medicaid inspector general\nshall create and make available on its website guidelines, which may\ninclude a model compliance program, that reflect the requirements of\nthis section. Such compliance programs shall meet the requirements\nincluded in this subdivision as a condition of payment from the medical\nassistance program. The compliance program required pursuant to this\nsection may be a component of more comprehensive compliance activities\nby the medical assistance provider so long as the requirements of this\nsection are met. Every provider shall adopt and implement an effective\ncompliance program, which shall include measures that prevent, detect,\nand correct non-compliance with medical assistance program requirements\nas well as measures that prevent, detect, and correct fraud, waste, and\nabuse. The compliance program shall include the following requirements:\n (a) Written policies, procedures, and standards of conduct that:\n (1) articulate the organization's commitment to comply with all\napplicable federal and state standards;\n (2) describe compliance expectations as embodied in the standards of\nconduct;\n (3) implement the operation of the compliance program;\n (4) provide guidance to employees and others on dealing with potential\ncompliance issues;\n (5) identify how to communicate compliance issues to appropriate\ncompliance personnel;\n (6) describe how potential compliance issues are investigated and\nresolved by the organization;\n (7) include a policy of non-intimidation and non-retaliation for good\nfaith participation in the compliance program, including but not limited\nto reporting potential issues, investigating issues, conducting\nself-evaluations, audits and remedial actions, and reporting to\nappropriate officials; and\n (8) all requirements listed under 42 U.S.C.1396-a(a)(68).\n (b) Designation of a compliance officer and a compliance committee who\nreport directly and are accountable to the organization's chief\nexecutive or other senior management.\n (c)(1) Each provider shall establish and implement effective training\nand education for its compliance officer and organization employees, the\nchief executive and other senior administrators, managers and governing\nbody members.\n (2) Such training and education shall occur at a minimum annually and\nshall be made a part of the orientation for a new employee and new\nappointment of a chief executive, manager, or governing body member.\n (d) Establishment and implementation of effective lines of\ncommunication, ensuring confidentiality, between the compliance officer,\nmembers of the compliance committee, the organization's employees,\nmanagers and governing body, and the organizations first tier,\ndownstream, and related entities. Such lines of communication shall be\naccessible to all and allow compliance issues to be reported including a\nmethod for anonymous and confidential good faith reporting of potential\ncompliance issues as they are identified.\n (e) Well-publicized disciplinary standards through the implementation\nof procedures which encourage good faith participation in the compliance\nprogram by all affected individuals.\n (f) Establishment and implementation of an effective system for\nroutine monitoring and identification of compliance risks. The system\nshould include internal monitoring and audits and, as appropriate,\nexternal audits, to evaluate the organization's compliance with the\nmedical assistance program requirements and the overall effectiveness of\nthe compliance program.\n (g) Establishment and implementation of procedures and a system for\npromptly responding to compliance issues as they are raised,\ninvestigating potential compliance problems as identified in the course\nof self-evaluations and audits, correcting such problems promptly and\nthoroughly to reduce the potential for recurrence, and ensure ongoing\ncompliance with the medical assistance programs requirements.\n 3. Upon enrollment in the medical assistance program, a provider shall\ncertify to the department that the provider satisfactorily meets the\nrequirements of this section. Additionally, the commissioner of health\nand Medicaid inspector general shall have the authority to determine at\nany time if a provider has a compliance program that satisfactorily\nmeets the requirements of this section.\n (a) A compliance program that is accepted by the federal department of\nhealth and human services office of inspector general and remains in\ncompliance with the standards promulgated by such office shall be deemed\nin compliance with the provisions of this section, so long as such plans\nadequately address medical assistance program risk areas and compliance\nissues.\n (b) A compliance program that meets Federal requirements for managed\ncare provider compliance programs, as specified in the contract or\ncontracts between the department and the Medicaid managed care provider\nshall be deemed in compliance with the provisions in this section, so\nlong as such programs adequately address medical assistance program risk\nareas and compliance issues. For purposes of this section, a managed\ncare provider is as defined in paragraph (c) of subdivision one of\nsection three hundred sixty-four-j of this chapter, and includes managed\nlong term care plans.\n (c) In the event that the commissioner of health or the Medicaid\ninspector general finds that the provider does not have a satisfactory\nprogram within ninety days after the effective date of the regulations\nissued pursuant to subdivision four of this section, the provider may be\nsubject to any sanctions or penalties permitted by federal or state laws\nand regulations, including revocation of the provider's agreement to\nparticipate in the medical assistance program.\n (d)(1) In the first instance of the Medicaid inspector general's\ndetermination that the provider, including a Medicaid managed care\nprovider, that has failed to adopt and implement a compliance program\nwhich satisfactorily meets the requirements of this section, the\nMedicaid inspector general may impose a monetary penalty of five\nthousand dollars per calendar month, for a maximum of twelve calendar\nmonths against a provider, including Medicaid managed care providers.\n (2) The Medicaid inspector general may impose a monetary penalty of up\nto ten thousand dollars per calendar month, for a maximum of twelve\ncalendar months against a provider, including a Medicaid managed care\nprovider, that has failed to adopt and implement a compliance program\nwhich satisfactorily meets the requirements of this section, if a\npenalty was previously imposed under subparagraph one of this paragraph\nwithin the previous five years.\n (e) A provider, including a Medicaid managed care provider, against\nwhom a monetary penalty is imposed pursuant to paragraph (d) of this\nsubdivision shall be entitled to notice and an opportunity to be heard,\nincluding the right to request a hearing pursuant to section twenty-two\nof this chapter.\n 4. Providers that shall be subject to the provisions of this section\ninclude, but are not limited to:\n (a) those subject to the provisions of articles twenty-eight and\nthirty-six of the public health law;\n (b) those subject to the provisions of articles sixteen and thirty-one\nof the mental hygiene law;\n (c) notwithstanding the provisions of section forty-four hundred\nfourteen of the public health law, managed care providers, as defined in\nsection three hundred sixty-four-j of this title and includes managed\nlong-term care plans; and\n (d) other providers of care, services and supplies under the medical\nassistance program for which the medical assistance program is a\nsubstantial portion of their business operations.\n 5. (a) The Medicaid inspector general, in consultation with the\ndepartment of health, shall promulgate any regulations necessary to\nimplement this section.\n (b) The Medicaid inspector general shall accept programs and processes\nimplemented pursuant to section forty-four hundred fourteen of the\npublic health law as satisfying the obligations of this section and the\nregulations promulgated thereunder when such programs and processes\nincorporate the objectives contemplated by this section.\n 6. (a) If a person has received an overpayment under the medical\nassistance program, the person shall:\n (1) report and return the overpayment to the department; and\n (2) notify the Medicaid inspector general in writing of the reason for\nthe overpayment.\n (b) An overpayment shall be reported and returned under paragraph (a)\nof this subdivision by the later of: (1) the date which is sixty days\nafter the date on which the overpayment was identified; or (2) the date\nany corresponding cost report is due, if applicable. A person has\nidentified an overpayment when the person has or should have through the\nexercise of reasonable diligence, determined that the person has\nreceived an overpayment and quantified the amount of the overpayment. A\nperson should have determined that the person received an overpayment\nand quantified the amount of the overpayment if the person fails to\nexercise reasonable diligence and the person in fact received an\noverpayment.\n (c) The deadline for returning overpayments shall be tolled when the\nfollowing occurs:\n (1) the Medicaid inspector general acknowledges receipt of a\nsubmission to the Medicaid inspector general's self-disclosure program\nunder subdivision seven of this section, and shall remain tolled until\nsuch time as a self-disclosure and compliance agreement, pursuant to\nsubdivision seven of this section is fully executed, the person\nwithdraws from the self-disclosure program, the person repays the\noverpayment and any interest due, or the person is removed from the\nself-disclosure program by the Medicaid inspector general; or\n (2) in the absence of a finding of fraud a person may repay an\noverpayment through installment payments as described in subdivision\nseven of this section and shall remain tolled until such time as the\nprovider repays the overpayment and any interest due, the Medicaid\ninspector general rejects the installment payment schedule requested by\nthe provider, or the provider fails to comply with the terms of the\ninstallment payment schedule.\n (d) Any overpayment retained by a person after the deadline for\nreporting and returning the overpayment under paragraph (b) of this\nsubdivision shall be subject to a monetary penalty pursuant to\nsubdivision four of section one hundred forty-five-b of this article.\n (e) For purposes of this subdivision, "person" means a provider of\nservices or supplies, managed care provider, as defined in paragraph (b)\nof subdivision one of section three hundred sixty-four-j of this title\nand includes managed long-term care plans, and does not include\nrecipients of the medical assistance program.\n 7. Self-disclosure program. (a) Notwithstanding the provisions of any\nother law to the contrary, there is hereby established a voluntary\nself-disclosure program to be administered by the Medicaid inspector\ngeneral, in consultation with the commissioner, for all persons\ndescribed in this section owing any overpayment to the medical\nassistance program.\n (b) For purposes of this subdivision, "person" means any person\nproviding services or receiving payment under the medical assistance\nprogram, a managed care provider as defined in paragraph (b) of\nsubdivision one of section three hundred sixty-four-j of this title,\nincluding managed long-term care plans, and any subcontractors or\nnetwork providers thereof.\n (c) In order to be eligible to participate in the self-disclosure\nprogram, a person shall satisfy the following conditions:\n (1) the person is not currently under audit, investigation or review\nby the Medicaid inspector general, unless the overpayment and the\nrelated conduct being disclosed does not relate to the Medicaid\ninspector general's audit, investigation or review;\n (2) the person is disclosing an overpayment and related conduct that\nthe Medicaid inspector general has not determined, calculated,\nresearched or identified at the time of the disclosure;\n (3) the overpayment and related conduct is reported by the deadline\nspecified in subdivision six of this section; and\n (4) the person is not currently a party to any criminal investigation\nbeing conducted by the deputy attorney general for the Medicaid fraud\ncontrol unit or an agency of the United States government or any\npolitical subdivision thereof.\n (d) Notwithstanding subdivision three of section one hundred\nforty-five-b of this article, the Medicaid inspector general may waive\ninterest on any overpayment reported, returned, and explained by an\neligible person under this subdivision. Furthermore, an eligible\nperson's good faith participation in the self-disclosure program may be\nconsidered as a mitigating factor in the determination of an\nadministrative enforcement action.\n (e) To participate in the self-disclosure program, an eligible person\nshall apply by submitting a self-disclosure statement in the form and\nmanner prescribed by the Medicaid inspector general. The statement shall\ncontain all the information required by the Medicaid inspector general\nto effectively administer the self-disclosure program.\n (f) (1) The eligible person shall pay the overpayment amount\ndetermined by the Medicaid inspector general to the department within\nfifteen days of the Medicaid inspector general notifying the person of\nthe amount due.\n (2) In the event the Medicaid inspector general is satisfied that the\nperson cannot make immediate full payment of the disclosed overpayment,\nthe Medicaid inspector general may permit the person to repay the\noverpayment and any interest due through installment payments. The\nMedicaid inspector general may require a financial disclosure statement\nsetting forth information concerning the person's current assets,\nliabilities, earnings, and other financial information before entering\ninto an installment payment plan with the person.\n (3) If the person and the overpayment are eligible under the\nself-disclosure program, the Medicaid inspector general shall be\nauthorized to enter into a self-disclosure and compliance agreement with\nthe person. The self-disclosure and compliance agreement shall be in a\nform to be established by the Medicaid inspector general and include\nsuch terms as the Medicaid inspector general shall require for the\nrepayment of the person's disclosed overpayment and enable and require\nthe person to comply with the requirements of the medical assistance\nprogram in the future. The person shall execute the self-disclosure and\ncompliance agreement within fifteen days of receiving said agreement\nfrom the Medicaid inspector general, or such other timeframe permitted\nby the Medicaid inspector general, provided however, that such other\nperiod is not less than fifteen days.\n (4) If the person provides false material information or omits\nmaterial information in his or her submissions to the Medicaid inspector\ngeneral, or attempts to defeat or evade an overpayment due pursuant to\nthe self-disclosure and compliance agreement executed under this\nsubdivision, or fails to comply with the terms of the self-disclosure\nand compliance agreement, or refuses to execute the self-disclosure and\ncompliance agreement in the timeframes specified under this section,\nsuch agreement shall be deemed rescinded and the provider's\nparticipation in the self-disclosure program terminated.\n (5) A person against whom a self-disclosure and compliance agreement\nis rescinded and participation in the self-disclosure program is\nterminated pursuant to subparagraph four of this paragraph shall be\nentitled to notice.\n (g) The Medicaid inspector general, in consultation with the\ncommissioner, may promulgate regulations, issue forms and instructions,\nand take any and all other actions necessary to implement the provisions\nof the self-disclosure program established under this section to\nmaximize public awareness and participation in such program.\n