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A05686 Summary:

BILL NOA05686A
 
SAME ASSAME AS S03184-A
 
SPONSORGottfried (MS)
 
COSPNSRPaulin, Peoples-Stokes, Lifton, Brook-Krasny, Gibson, Gunther, Jacobs, Jaffee, Lancman, Ortiz, Rivera J, Rosenthal, Lavine, Hikind, Crespo, Schimel, Maisel, Cymbrowitz, Dinowitz, Hoyt, Meng, Titone, Colton, Miller M, Schroeder, Lupardo, Rivera P, Weprin, Gabryszak, Zebrowski, Boyland
 
MLTSPNSRAbinanti, Amedore, Benedetto, Brennan, Burling, Calhoun, Canestrari, Crouch, Cusick, Duprey, Englebright, Farrell, Giglio, Hayes, Jeffries, Latimer, Lopez V, Markey, McDonough, McEneny, McKevitt, Millman, Montesano, Murray, Perry, Pretlow, Raia, Reilly, Robinson, Sayward, Scarborough, Spano, Sweeney, Thiele, Wright
 
Amd SS30, 30-a & 32, add SS37 & 38, Pub Health L; amd S363-d, Soc Serv L
 
Relates to procedures, practices and standards for actions by the office of medicaid inspector general and social services districts.
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A05686 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5686--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 25, 2011
                                       ___________
 
        Introduced  by  M.  of  A.  GOTTFRIED,  PAULIN,  PEOPLES-STOKES, LIFTON,
          BROOK-KRASNY,  GIBSON,  GUNTHER,  JACOBS,  JAFFEE,   LANCMAN,   ORTIZ,
          J. RIVERA,   ROSENTHAL,   LAVINE,  HIKIND,  CRESPO,  SCHIMEL,  MAISEL,
          CYMBROWITZ, DINOWITZ, HOYT, MENG, TITONE, COLTON,  M. MILLER,  SCHROE-
          DER,  LUPARDO,  P. RIVERA, WEPRIN, GABRYSZAK, ZEBROWSKI -- Multi-Spon-

          sored by -- M. of A. ABINANTI, AMEDORE, BENEDETTO,  BOYLAND,  BRENNAN,
          BURLING,  CALHOUN,  CANESTRARI,  CROUCH,  CUSICK, DUPREY, ENGLEBRIGHT,
          FARRELL, GIGLIO, HAYES, JEFFRIES, LATIMER, V. LOPEZ, McDONOUGH, McENE-
          NY, McKEVITT, MILLMAN, MONTESANO, MURRAY, PERRY, PRETLOW, RAIA,  REIL-
          LY, ROBINSON, SCARBOROUGH, SPANO, SWEENEY, THIELE, WRIGHT -- read once
          and  referred  to  the Committee on Health -- reported and referred to
          the Committee on Codes -- reported and referred to  the  Committee  on
          Ways   and  Means  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the public health law and the social  services  law,  in
          relation  to  procedures,  practices  and standards for actions by the
          office of medicaid inspector general and social services districts
 

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  30 of the public health law, as added by chapter
     2  442 of the laws of 2006, is amended to read as follows:
     3    § 30. Legislative intent. This title establishes an independent office
     4  of Medicaid inspector general within the department to consolidate staff
     5  and other Medicaid fraud detection, prevention  and  recovery  functions
     6  from the relevant governmental entities into a single office, and grants
     7  such  office  new  powers  and  responsibilities. As such, this title is
     8  intended to create a more efficient and accountable  structure,  dramat-
     9  ically  reorganize  and  streamline the state's process of detecting and
    10  combating Medicaid fraud  and  abuse  and  maximize  the  recoupment  of
    11  improper Medicaid payments.
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07895-08-1

        A. 5686--A                          2
 
     1    The  legislature  recognizes  the  need  to balance the ability of the
     2  state to ensure the integrity of the medical assistance program with the
     3  need to afford due process to providers and recipients who are  investi-
     4  gated, audited or subject to other actions, in order to ensure that such
     5  actions  are  conducted in a fair and consistent manner. The legislature
     6  also recognizes the need for established statutory  standards  regarding

     7  the conduct of investigations, audits and recovery of payments and other
     8  actions.
     9    §  2.  Section 30-a of the public health law is amended by adding four
    10  new subdivisions 4, 5, 6 and 7 to read as follows:
    11    4. "Provider" means any person or entity enrolled as a provider in the
    12  medical assistance program.
    13    5. "Recipient" means an individual who  is  enrolled  in  the  medical
    14  assistance program, including an individual who was previously a recipi-
    15  ent  and, in an appropriate case, an individual who is legally responsi-
    16  ble for the recipient.
    17    6. "Medical assistance" and "Medicaid" means title eleven  of  article
    18  five of the social services law and the program thereunder.

    19    7.  "Draft  audit report", "initial audit report", "proposed notice of
    20  agency action" and "final notice of agency action" means those documents
    21  prepared and issued by the inspector under this title and  corresponding
    22  regulations.
    23    §  3.  Subdivision 20 of section 32 of the public health law, as added
    24  by chapter 442 of the laws of 2006, is amended to read as follows:
    25    20. to, consistent with provisions of this title and other  applicable
    26  federal and state laws, regulations, policies, guidelines and standards,
    27  implement  and  amend,  as needed, rules and regulations relating to the
    28  prevention, detection, investigation and referral  of  fraud  and  abuse
    29  within  the  medical  assistance  program and the recovery of improperly
    30  expended medical assistance program funds;

    31    § 4. The public health law is amended by adding two  new  sections  37
    32  and 38 to read as follows:
    33    §  37.  Procedures, practices and standards. 1. Subject to federal law
    34  or regulation, recovery of an overpayment resulting from the issuance of
    35  a final audit report or final notice of  agency  action  relating  to  a
    36  monetary  penalty  by  the  inspector shall commence not less than sixty
    37  days after the issuance of the final audit report  or  final  notice  of
    38  agency action.  The inspector shall not commence any recovery under this
    39  subdivision  without  providing  a  minimum  of ten days advance written
    40  notice to the provider.
    41    2. Contracts, cost reports, claims, bills or expenditures  of  medical

    42  assistance  program  funds  that  were  the subject matter of a previous
    43  audit or review by or on behalf of the inspector, within the last  three
    44  years,  shall  not  be subject to review or audit except on the basis of
    45  new information, for good cause to believe that the previous  review  or
    46  audit  was  erroneous,  or  where the scope of the inspector's review or
    47  audit is significantly different from the scope of the  previous  review
    48  or audit, and shall not be subject to a new audit.
    49    3.  In  conducting  audits,  the inspector shall apply the laws, regu-
    50  lations, policies, guidelines,  standards  and  interpretations  of  the
    51  appropriate  agency  that  were  in  place at the time the subject claim

    52  arose or other conduct took place.   Disallowances  may  be  imposed  or
    53  other action taken only for non-compliance with those laws, regulations,
    54  policies, guidelines or standards. For purposes of this subdivision, any
    55  change  in  such  laws,  regulations, policies, guidelines, standards or

        A. 5686--A                          3
 
     1  interpretations shall only be applied prospectively and upon  reasonable
     2  notice.
     3    4.  (a) The inspector shall make no recovery from a provider, based on
     4  an administrative or technical defect in procedure or documentation made
     5  without intent to falsify or defraud,  in  connection  with  claims  for
     6  payment  for medically necessary care, services and supplies or the cost

     7  thereof as specified in subdivision two of section three hundred  sixty-
     8  five-a  of  the social services law provided in other respects appropri-
     9  ately to a beneficiary of the  medical  assistance  program,  except  as
    10  provided in paragraph (b) of this subdivision.
    11    (b)  Where  the  basis  for recovery is an administrative or technical
    12  defect in procedure  or  documentation  without  intent  to  falsify  or
    13  defraud,  the  inspector  shall  afford  the  provider an opportunity to
    14  correct the defect and resubmit the claim within thirty days  of  notice
    15  of the defect.
    16    5.  (a)  The  inspector shall furnish to the provider at an audit exit
    17  conference or in any draft audit findings issued or to be issued to  the

    18  provider,  a  detailed  written  explanation of the extrapolation method
    19  employed, including the size of the sample,  the  sampling  methodology,
    20  the  defined  universe  of  claims,  the specific claims included in the
    21  sample, the results of the sample, the assumptions made about the  accu-
    22  racy  and  reliability  of the sample and the level of confidence in the
    23  sample results, and the steps  undertaken  and  statistics  utilized  to
    24  calculate the alleged overpayment and any applicable offset based on the
    25  sample  results. This written information shall include a description of
    26  the sampling and extrapolation methodology.
    27    (b) The sampling and extrapolation methodologies used by the inspector

    28  shall be statistically reasonably valid for the intended use  and  shall
    29  be established in regulations of the inspector.
    30    §  38.  Procedures,  practices  and standards for recipients.  1. This
    31  section applies to any adjustment or recovery of  a  medical  assistance
    32  payment  from  a  recipient,  and  any investigation or other proceeding
    33  relating thereto.
    34    2. At least five business days prior to commencement of any  interview
    35  with  a  recipient  as  part of an investigation, the inspector or other
    36  investigating entity shall provide the recipient with written notice  of
    37  the  investigation.  The notice of the investigation shall set forth the
    38  basis for the investigation; the potential  for  referral  for  criminal

    39  investigation;  the  individual's right to be accompanied by a relative,
    40  friend, advocate or attorney during questioning; contact information for
    41  local legal services offices; the individual's right to  decline  to  be
    42  interviewed or participate in an interview but terminate the questioning
    43  at any time without loss of benefits; and the right to a fair hearing in
    44  the event that the investigation results in a determination of incorrect
    45  payment.
    46    3.  Following completion of the investigation and at least thirty days
    47  prior to commencing a recovery or adjustment action or requesting volun-
    48  tary repayment,  the  inspector  or  other  investigating  entity  shall
    49  provide the recipient with written notice of the determination of incor-

    50  rect  payment  to  be recovered or adjusted. The notice of determination
    51  shall identify the evidence relied upon, set forth the  factual  conclu-
    52  sions of the investigation, and explain the recipient's right to request
    53  a fair hearing in order to contest the outcome of the investigation. The
    54  explanation of the right to a fair hearing shall conform to the require-
    55  ments of subdivision twelve of section twenty-two of the social services
    56  law and regulations thereunder.

        A. 5686--A                          4
 
     1    4.  A fair hearing under section twenty-two of the social services law
     2  shall be available to any recipient who receives a  notice  of  determi-
     3  nation  under  subdivision  three of this section, regardless of whether

     4  the recipient is still enrolled in the medical assistance program.
     5    §  5.  Paragraph  (b)  of subdivision 3 of section 363-d of the social
     6  services law, as amended by section 44 of part C of chapter  58  of  the
     7  laws  of  2007,  is  amended and a new subdivision 5 is added to read as
     8  follows:
     9    (b) In the event that the  commissioner  of  health  or  the  Medicaid
    10  inspector  general  finds that the provider does not have a satisfactory
    11  program [within ninety days after the effective date of the  regulations
    12  issued  pursuant  to  subdivision  four of this section, the] under this
    13  section, the commissioner or Medicaid inspector general shall so  notify
    14  the provider, including specification of basis of the finding sufficient

    15  to  enable  the provider to adopt a satisfactory compliance program. The
    16  provider shall submit to the commissioner or Medicaid inspector  general
    17  a  proposed  satisfactory  compliance  program  within sixty days of the
    18  notice and shall adopt the program as expeditiously as possible. If  the
    19  provider  does not propose and adopt a satisfactory program in such time
    20  period, the provider may  be  subject  to  any  sanctions  or  penalties
    21  permitted by federal or state laws and regulations, including revocation
    22  of  the  provider's  agreement  to participate in the medical assistance
    23  program.
    24    5. Any regulation, determination or finding of the commissioner or the
    25  Medicaid inspector general relating to a compliance program  under  this

    26  section  shall  be  subject  to and consistent with subdivision three of
    27  this section.
    28    § 6. This act shall take effect October 1, 2011 and shall apply to any
    29  matter commenced or pending on or after such date.  However with respect
    30  to any matter pending on or after such date, this act shall not  invali-
    31  date  any  actions  or  steps  taken or commenced prior to such date and
    32  shall only apply to actions or steps commenced on or after such date.
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