Presentation before the Missouri Bar’s Health and Hospital Law CommitteePresentation before the Missouri Bar’s Health and Hospital Law CommitteeNovember 18, 2011November 18, 2011

Markus P. Cicka, J.D., L.L.M. (Health Law)Markus P. Cicka, J.D., L.L.M. (Health Law)Director – Missouri Medicaid Audit and ComplianceDirector – Missouri Medicaid Audit and Compliance

Missouri Department of Social ServicesMissouri Department of Social Services205 Jefferson St., 2205 Jefferson St., 2ndnd Floor, P.O. Box 6500 Floor, P.O. Box 6500

Jefferson City, MO 65102-6500Jefferson City, MO 65102-6500(573) 751-3399 (Telephone)(573) 751-3399 (Telephone)

(573) 526-4375 (Fax)(573) 526-4375 (Fax)Markus.Cicka@dss.mo.govMarkus.Cicka@dss.mo.gov

BackgroundBackgroundSection 6402(h)(2) of the Affordable Care ActSection 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, 2011http://edocket.access.gpo.gov/2011/pdf/2011-1686.pdf

PurposePurposeAffordable Care Act – Program Integrity InitiativesAffordable Care Act – Program Integrity Initiatives

The new authorities offer more protections to keep those who The new authorities offer more protections to keep those who are intent on committing fraud out of the programs, identifying are intent on committing fraud out of the programs, identifying and addressing fraudulent payment issues promptly, and and addressing fraudulent payment issues promptly, and ensuring the integrity of Medicare, Medicaid, and CHIP.ensuring the integrity of Medicare, Medicaid, and CHIP.

Temporarily stopping payments to providers and suppliers in Temporarily stopping payments to providers and suppliers in cases of suspected fraud. Under the new rules, if there has cases of suspected fraud. Under the new rules, if there has been a credible fraud allegation, payments should be been a credible fraud allegation, payments should be suspended while an action or investigation is underway.suspended while an action or investigation is underway.

Previously, States had the Previously, States had the optionoption to suspend, or withhold to suspend, or withhold payments, where there was “reliable evidence of fraud.” The payments, where there was “reliable evidence of fraud.” The Affordable Care Act lowered the threshold from “reliable Affordable Care Act lowered the threshold from “reliable evidence” to “credible allegation.”evidence” to “credible allegation.”

Good CauseGood CauseSpecific 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.

Good Cause (continued)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.

Notice of SuspensionNotice of SuspensionNotify Medicaid Fraud Control Unit (MFCU) or other

appropriate law enforcement agency of payment suspensionMFCU could request delay of notification to provider

Notice of Suspension to ProvidersWithin 5 days of imposing suspensionUp to 30 days if requested by law enforcement in writing to

delay such noticeLaw enforcement can renew their requests for delay in

sending the notice to providers up to two times but may not exceed 90 days

Notice to Providers (continued)Notice to Providers (continued)Content of Notice

Payments are being suspended (Whole/partial) in accordance with 42 CFR §455.23

General allegations/nature of suspensionSuspension is temporary and cite the circumstances

under which the suspension will be liftedSpecify the types of Medicaid claims or business units of

a provider for which the suspension is effectiveProvider has right to submit written evidence for

considerationSpecify applicable State administrative appeals process

and relevant citations to State law

Duration of SuspensionDuration of SuspensionPayment 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.

Referral to Medicaid Fraud Referral to Medicaid Fraud Control UnitControl Unit

Fraud referral to MFCU or other appropriate law enforcement agencyIn writingMust occur no later than the next business day after the

suspension is enactedConform to CMS’ performance standards for suspected

fraud referralshttp://www.cms.gov/FraudAbuseforProfs/downloads/fraudreferralperformancestandardsstateagencytomfcu.pdf

Fraud referral concerns can be addressed in MOU with StateQuarterly Certification

The State must request quarterly certifications from the MFCU that the matter continues to be under investigation.

Implementation StatusImplementation 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

DocumentationDocumentationMaintain for at least 5 years

Notices of suspensionFraud referrals to MFCU or other law enforcement agencyQuarterly certifications of the status of an investigation

from MFCUNotices documenting the termination of a payment

suspensionGood 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

Annual Report to the SecretaryAnnual Report to the SecretaryCategories of Information:

Nature of suspected fraudBasis for suspensionOutcome of suspensionGood cause to not suspend, discontinue or suspend only in

partAmount of program dollars saved that are associated with

each payment suspension

Initial report: April 2012

Questions

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