How To Comply With The Health Care Law

Transcription

1 Compliance and The Deficit Reduction Act NorthCare FY2012/2013 Training Judi Brugman, CA/CDR Supervisor

2 Training Objectives To gain an understanding of: Provisions of the Deficit Reduction Act (DRA) Medicaid Integrity Program (MIP) False Claims Act Federal/Michigan Whistleblower s Act Education Requirements Compliance Program Regional and Local Implications 2

3 Deficit Reduction Act (DRA) of 2005 P.L DRA established the Medicaid Integrity Program under Section 6034 of the Social Security Act, signed into law February 8, Dramatically increased Federal resources to fight Medicaid fraud, waste, and abuse (SA applies the same standards to all funding sources). Provide effective support and assistance to States. 3

4 Medicaid Integrity Program (MIP) The Medicaid Integrity Program directs HHS to enter into contracts to carry out the program s activities, including: Review of actions of Medicaid providers under any type of payment system to determine if their actions have produced fraud, abuse or waste, are likely to, or may potentially result in unintended expenditure on the part of the Medicaid program. Audit of claims for payment of Medicaid services, items, or administrative services rendered including cost reporting, consulting contracts, and various risk contracts. Identification of overpayments to individuals or entities receiving Medicaid Federal funds. Education of providers, managed care entities, beneficiaries, and others with respect to payment integrity and quality of care (DRA training). Claims = Encounters 4

5 Federal False Claims Act (FCA) The False Claims Act is a Federal law that: The Establishes criminal & civil liability Three notable provisions: 1. Civil prosecutions do not require proof of fraud, only proof that provider acted in reckless disregard or deliberate ignorance. No ostrich defense. 2. Qui tam, or whistleblower provisions that allow private citizens to bring suit against providers and collect a portion of monies recovered. 3. Very high penalties assessed on a per claim basis for violators. As much as $11,000 per claim! 5

6 Federal FCA continued The Federal False Claims Act applies when an individual or entity: Knowingly presents (or causes to be presented) to the Federal Government a false or fraudulent claim for payment Knowingly uses (or causes to be used) a false record or statement to get a claim paid by the Federal Government Conspires with others to get a false or fraudulent claim paid by the Federal Government Knowingly uses (or causes to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Federal Government Statute of limitations not later than 10 years after the illegal activity Incentive to report - entitled to proportional share of funds recovered - 15% to 30% Ensures protection under Whistleblower s Act 6

7 Federal FCA continued May 2009, the Federal False Claims Act (FCA) was amended by the Fraud Enforcement and Recovery Act (FERA) which greatly enhanced the federal government s health care fraud enforcement powers. Can be held liable for simply retaining a federal overpayment even if the overpayment was not caused by their own fraudulent conduct ( reverse false payment ) Expanded liability to entities that indirectly receive government funds such as subcontractors Expands protection of whistleblowers Created affirmative duty to refund overpayments within 60 days 7

8 Michigan FCA Michigan False Claims Act Mirrors Federal FCA by also prohibiting: fraud in the obtaining of Medicaid benefits or payments kickbacks or bribes conspiracies in obtaining benefits or payments States may receive incentives as do individuals reporting in good faith. 8

9 Michigan FCA continued Effective January 6, 2009 the Michigan False Claims Act was amended: Increasing the civil penalties associated with submitting false claims to Medicaid Expanding the definition of knowingly to include acting with deliberate ignorance or reckless disregard (i.e. specific intent to defraud is no longer required) Allowing for reverse false claims similar to the federal FERA provisions, whereby it is deemed a violation if a provider retains an overpayment. 9

10 Whistleblower's Protection Act Whistleblower s Protection Act Provides protection to employees who report a violation or suspected violation; to those who participate in hearing, investigations, legislative inquiries, or court actions; and to prescribe remedies and penalties. FERA Expanded the act to include contractors and agents (not just employees) and allows even the CO or biller to be a whistleblower. 10

11 Whistleblower's Protection Act continued An employer shall not: discharge, threaten, or otherwise discriminate against employee who reports or is about to report discharge, demote, suspend, threaten or harass or otherwise discriminate against an employee who initiates, assists, or participates in a proceeding or court action Violations of this act may result in civil action - within 90 days after alleged violation 11

12 Education Requirements Education Requirements - the provisions of the DRA are very specific regarding compliance education: Implement employee, contractor and agent education containing detailed information about the federal and state False Claims Acts, any other administrative remedies for false claims and all whistleblower provisions Develop written policies that include detailed provisions regarding the policies and procedures of the entity for detecting and/or preventing fraud, abuse and waste Include fraud and abuse laws in employee handbook 12

13 Compliance Program DRA Requires Compliance Programs The federal government has, for many years, encouraged health care providers and managed care plans to have compliance programs, built on the federal sentencing guidelines. The DRA now requires all providers or organizations that pay out over $5 Million a year to have an active Compliance Program. 13

14 NorthCare s Compliance Program NorthCare is in the process of revising all compliance program documents and will have updated policy/procedures (when formally approved by the board) available on our policy/procedure forum and website (www. northcare-up.org) The CEO from each contract agency will be required to sign attesting to their understanding of NorthCare s Code of Compliance Ethics. Corporate Compliance Program Plan outlines expectations and practices that services are managed/provided in an ethical manner and w/in the structure of all laws. Also provides a tool to strengthen the efforts of covered parties to prevent and reduce improper conduct. Corporate Compliance Reporting and Investigative Procedures outlines processes for reporting Anti-Retaliation Policy promotes compliance with the Whistleblower s Act by ensuring no retaliation or retribution for good faith report of suspected wrongdoing Corporate Compliance Program Policy implements the program plan and provides references for covered parties 14

15 NorthCare s Compliance Program continued As a contractor of NorthCare CA, you have an obligation to report any fraud, abuse or waste of Medicaid. The Compliance Reporting Policy details several methods for reporting. These include: Directly to your supervisor, Corporate Compliance Officer, and/or Recipient Rights Officer important thing is to report Written or Verbal Telephone, , Interoffice Mail, Regular Postal Mail Can be submitted anonymously 15

16 NorthCare s Compliance Program continued Fraud intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself or other person. Abuse provider practices that are inconsistent with sound fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. It also includes recipient practices that result in unnecessary cost to the Medicaid program. Waste over utilization of services, or other practices that result in unnecessary costs. Generally caused by misuse of resources and not criminally negligent actions. 16

17 NorthCare s Compliance Program continued Possible examples of Fraud, Abuse, Waste: Providers Lying about credentials Billing for services that were not done Double billing, up coding, unbundling Underutilization not ordering services that are medically necessary Requesting services that are not medically necessary or just in case Falsifying information Beneficiaries Letting someone else use their Medicaid or ABW card Misrepresentation of eligibility status 17

18 MDCH Strategic Priorities January December 2011 A priority identified by the Michigan Department of Community Health is: Implement Office of Health Inspector General to reduce fraud, waste, abuse 18

19 Michigan Medical Law Report Spring 2011 Compliance can be tricky in the age of electronic medical records Auditors and reviewers routinely deny claims because an item or service is found not to be medically necessary Auditors and claim reviewers may deny claims for medical necessity if it appears that the documentation is not tailored to the service performed but is merely a template. Each record should be distinct from the next. Each note should establish the medical necessity for the service provided Medicare, Medicaid and other payor policies address not only billing and coding practices but also documentation 19

20 Michigan Medical Law Report Spring continued All providers who significantly rely upon Medicare and Medicaid funding should review their practices for compliance to avoid becoming a target Effective January 6, 2009 the Michigan False Claims Act was amended Increasing the civil penalties associated with submitting false claims to Medicaid Expanding the definition of knowingly to include acting with deliberate ignorance or reckless disregard (i.e. specific intent to defraud is no longer required) Allowing for reverse false claims similar to the federal FERA provisions, whereby it is deemed a violation if a provider retains an overpayment. 20

21 Behavioral Health Collaborative Solutions OIG work plan for Fraud and abuse focuses on Behavioral AUDIT FINDINGS (Medicare Part B Mental Health Services May 2001) Percentage of claims in each service area that should not have been paid 34% of individual therapy 50% of group therapy 40% of psychological testing services 16% of psychopharmacologic services 21

22 Behavioral Health Collaborative Solutions OIG work plan for Fraud and abuse focuses on Behavioral What were the problems? 41% of the services were billed inaccurately (incorrect codes, non-covered services, excessive billings) 11% of the services were provided by unqualified providers (some incident to issues) 65% of claims denied due to poor or missing documentation 23% of the services were found to be medically unnecessary 22% of the claims represented excessive services (closely related to medical necessity) 8% of the claims were for clients who had a diagnosis that would suggest the need for psychopharmacology but were not receiving those services 22

23 What does this mean for NorthCare CA and our Providers? Paraprofessionals will work under the active supervision of a mental health professional. As budgets have tightened and middle management has eroded in provider agencies, active supervision in many cases has evolved into supervisor s simply signing off on treatment plans, assessments, progress summaries, etc. This series of audits signals the intent of the OIG to examine the current state of active supervision more closely - provider beware. Individual Treatment Plans need to be individualized Example: having the same goals/objectives month after month without progress is a red flag to auditors. Documentation needs to be completed in a timely manner NorthCare s current policy Progress note: best practice is within 24 hours but no more than two days Assessments: no more than five days from the date of the assessment 23

24 MCBAP Code of Ethical Conduct Principle 2: Responsibility The counselor shall espouse objectivity and integrity, and maintain the highest standards in the services the counselor offers. The counselor, who is aware of unethical conduct or of unprofessional modes of practice, shall report such inappropriate behavior to the appropriate authority. Principle 4: Legal and Moral Standards The counselor shall uphold the legal and accepted moral codes which pertain to professional conduct. Principle 10: Interprofessional Relationships The counselor shall treat colleagues with respect, courtesy, fairness and good faith and shall afford the same to other professionals. The counselor shall cooperate with duly constituted professional ethics committees and promptly supply necessary information unless constrained by the demands of confidentiality. 24

25 Medicaid Provider Manual Medical Necessity 2.5 Medical Necessity Criteria The following medical necessity criteria apply to Medicaid mental health, developmental disabilities, and substance abuse supports and services. 2.5.A. Medical Necessity Criteria Mental health, developmental disabilities, and substance abuse services are supports, services and treatment: Necessary for screening and assessing the presence of a mental illness, developmental disability or substance use disorder; and/or required to identify and evaluate a mental illness, developmental disability or substance use disorder; and/or intended to treat, ameliorate, diminish or stabilize the symptoms of mental illness, developmental disability or substance use disorder; and/or expected to arrest or delay the progression of a mental illness, developmental disability, or substance use disorder; and/or designed to assist the beneficiary to attain or maintain a sufficient level of functioning in order to achieve his goals of community inclusion and participation, independence, recovery, or productivity 25

26 Medicaid Provider Manual Medical Necessity 2.5.B. Determination Criteria The determination of a medically necessary support, service or treatment must be: based on information provided by the beneficiary, beneficiary s family, and/or other individuals (e.g., friends, personal assistants/aides) who know the beneficiary; and based on clinical information from the beneficiary s primary care physician or health care professionals with relevant qualifications who have evaluated the beneficiary; and for beneficiaries with mental illness or developmental disabilities, based on person- centered planning, and for beneficiaries with substance use disorders, individualized treatment planning; and made by appropriately trained mental health, developmental disabilities, or substance use professionals with sufficient clinical experience; and made within federal and state standards for timeliness; and sufficient in amount, scope and duration of the service(s) to reasonably achieve its/their purpose; and documented in the individual plan of service. 26

27 Medicaid Provider Manual Medical Necessity 2.5.C. Supports, Services and Treatment Authorized by the PIHP Supports, services, and treatment authorized by the PIHP must be: delivered in accordance with federal and state standards for timeliness in a location that is accessible to the beneficiary; and responsive to particular needs of multi-cultural populations and furnished in a culturally relevant manner; and responsive to the particular needs of beneficiaries with sensory or mobility impairments and provided with the necessary accommodations; and provided in the least restrictive, most integrated setting. Inpatient, licensed residential or other segregated settings shall be used only when less restrictive levels of treatment, service or support have been, for that beneficiary, unsuccessful or cannot be safely provided; and delivered consistent with, where they exist, available research findings, health care practice guidelines, best practices and standards of practice issued by professionally recognized organizations or government agencies. 27

28 Medicaid Provider Manual Medical Necessity 2.5.D. PIHP Decisions Using criteria for medical necessity, a PIHP may deny services that are: deemed ineffective for a given condition based upon professionally and scientifically recognized and accepted standards of care; experimental or investigational in nature; or for which there exists another appropriate, efficacious, less-restrictive and cost-effective service, setting, or support that otherwise satisfies the standards for medically-necessary services; and/or employ various methods to determine amount, scope, and duration of services, including prior authorization for certain services, concurrent utilization reviews, centralized assessment and referral, gate-keeping arrangements, protocols, and guidelines. A PIHP may NOT deny services based solely on preset limits of the cost, amount, scope, and duration of services. Instead, determination of the need for services shall be conducted on an individualized basis. 28

29 Medicaid Provider Manual Additional Services (B3s) Medicaid Waiver approved for one year State must work with CMS to realign services funded through 1915(b)(3) authorities and the State Plan to ensure services are provided under the appropriate authorities. PIHPs must make certain Medicaid-funded mental health supports and services available, in addition to the Medicaid State Plan Specialty Supports and Services or Habilitation Waiver Services, through the authority of 1915(b)(3) of the Social Security Act (hereafter referred to as b3s). The intent of B3 supports and services is to fund medically necessary supports and services that promote community inclusion and participation, independence, and/or productivity when identified in the individual plan of service as one or more goals develop during treatment planning. 29

30 Medicaid Provider Manual Criteria for Authorizing b3 Supports and Services Decisions regarding the authorization of a B3 service, including the amount, scope and duration, must take into account the PIHP s documented capacity to reasonably and equitably serve other Medicaid beneficiaries who also have needs for these services. The B3 supports and services are not intended to meet all the individual s needs and preferences, as some needs may be better met by community and other natural supports. The use of natural supports must be documented in the beneficiary s individual plan of service. 30

31 Amount, Scope, and Duration Individualized Treatment Planning Each individualized treatment plan must include the completion of a bio-psychosocial assessment which consists of current and historical information and identifies needs and strengths, along with the following: Treatment plan Treatment interventions 31

32 Amount, Scope, and Duration in Individualized Treatment Planning Treatment plan Joint setting of goals and objectives Goals must be stated in client s words Each goal must be directly tied to a need identified in the assessment Objectives must contain the steps that need to be taken to achieve the goals Objectives need to be measurable and must have target dates for completion 32

33 Amount, Scope, and Duration Individualized Treatment Planning Treatment intervention Determine the intervention(s) that will be used to assist the client in being able to accomplish the objective What action will the client take to achieve it and what action will the counselor take to assist the client in achieving the goals These actions must be mutually agreed upon to provide the best chance of success for the client 33

34 Service Authorization Requests Examples of Inappropriate Requests Grossly wide range of service units 1 12 units monthly Units of service for in case of events Family therapy units requested but client not residing with family 34

35 Resources Centers for Medicare and Medicaid - manages the MIP Michigan Department of Community Health Michigan Certification Board for Addiction Professionals National Association of Social Workers NorthCare Network Office of Attorney General www. Michigan.gov/ag Office of Inspector General Substance Abuse and Mental Health Services Administration (SAMHSA) 35

36 Handouts Federal False Claims Act The Medicaid False Claims Act The Whistleblower's Protection Act Michigan Legislature Act 72 of 1977 Compliance Attestation Form 36

37 QUESTIONS 37