NY Soc Serv L § 363-D (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 363-D - Provider Compliance Program.

§  363-d.  Provider  compliance program. 1. The legislature finds that medical assistance providers may be able to detect and  correct  payment and  billing  mistakes  and  fraud  if required to develop and implement compliance programs. It is the purpose  of  such  programs  to  organize provider   resources   to   resolve  payment  discrepancies  and  detect inaccurate billings, among other things, as quickly and  efficiently  as possible,  and  to impose systemic checks and balances to prevent future recurrences. The legislature accordingly declares  that  it  is  in  the public  interest  that  providers  within the medical assistance program implement compliance programs. The legislature also recognizes the  wide variety of provider types in the medical assistance program and the need for  compliance  programs  that  reflect  a provider's size, complexity, resources, and culture. For a compliance program  to  be  effective,  it must  be  designed to be compatible with the provider's characteristics. At the same time, however, the legislature determines that there are key components that must be included in every compliance  program  and  such components  should  be  required  if  a  provider  is  to  be  a medical assistance program participant.  Accordingly,  the  provisions  of  this section   require   providers  to  adopt  effective  compliance  program elements, and make each provider responsible  for  implementing  such  a program appropriate to its characteristics.   2.  Every  provider  of  medical assistance program items and services that is subject to subdivision four of  this  section  shall  adopt  and implement a compliance program. The office of Medicaid inspector general shall  create  and  make  available on its website guidelines, which may include a model compliance program, that  reflect  the  requirements  of this  section.    Such  compliance  programs shall meet the requirements included in this subdivision as a condition of payment from the  medical assistance  program.  The  compliance  program required pursuant to this section may be a component of more comprehensive  compliance  activities by  the  medical assistance provider so long as the requirements of this section are met.  Every provider shall adopt and implement an  effective compliance  program,  which shall include measures that prevent, detect, and correct non-compliance with medical assistance program  requirements as  well as measures that prevent, detect, and correct fraud, waste, and abuse. The compliance program shall include the following requirements:  (a) Written policies, procedures, and standards of conduct that:  (1) articulate  the  organization's  commitment  to  comply  with  all applicable federal and state standards;  (2)  describe  compliance expectations as embodied in the standards of conduct;  (3) implement the operation of the compliance program;  (4) provide guidance to employees and others on dealing with potential compliance issues;  (5) identify how  to  communicate  compliance  issues  to  appropriate compliance personnel;  (6)  describe  how  potential  compliance  issues are investigated and resolved by the organization;  (7) include a policy of non-intimidation and non-retaliation for  good faith participation in the compliance program, including but not limited to   reporting   potential   issues,  investigating  issues,  conducting self-evaluations,  audits  and  remedial  actions,  and   reporting   to appropriate officials; and  (8) all requirements listed under 42 U.S.C.1396-a(a)(68).  (b) Designation of a compliance officer and a compliance committee who report   directly  and  are  accountable  to  the  organization's  chief executive or other senior management.  (c)(1) Each provider shall establish and implement effective  training and education for its compliance officer and organization employees, the chief  executive and other senior administrators, managers and governing body members.  (2)  Such training and education shall occur at a minimum annually and shall be made a part of the orientation  for  a  new  employee  and  new appointment of a chief executive, manager, or governing body member.  (d)   Establishment   and   implementation   of   effective  lines  of communication, ensuring confidentiality, between the compliance officer, members of  the  compliance  committee,  the  organization's  employees, managers   and   governing  body,  and  the  organizations  first  tier, downstream, and related entities. Such lines of communication  shall  be accessible to all and allow compliance issues to be reported including a method  for anonymous and confidential good faith reporting of potential compliance issues as they are identified.  (e) Well-publicized disciplinary standards through the  implementation of procedures which encourage good faith participation in the compliance program by all affected individuals.  (f)  Establishment  and  implementation  of  an  effective  system for routine monitoring and identification of compliance  risks.  The  system should  include  internal  monitoring  and  audits  and, as appropriate, external audits, to evaluate  the  organization's  compliance  with  the medical assistance program requirements and the overall effectiveness of the compliance program.  (g)  Establishment  and  implementation of procedures and a system for promptly  responding  to  compliance  issues   as   they   are   raised, investigating  potential compliance problems as identified in the course of self-evaluations and audits, correcting such  problems  promptly  and thoroughly  to  reduce  the potential for recurrence, and ensure ongoing compliance with the medical assistance programs requirements.   3. Upon enrollment in the medical assistance program, a provider shall certify to the department that the  provider  satisfactorily  meets  the requirements  of  this section. Additionally, the commissioner of health and Medicaid inspector general shall have the authority to determine  at any  time  if  a  provider  has a compliance program that satisfactorily meets the requirements of this section.  (a) A compliance program that is accepted by the federal department of health and human services office of inspector  general  and  remains  in compliance with the standards promulgated by such office shall be deemed in compliance with the provisions of this section, so long as such plans adequately  address medical assistance program risk areas and compliance issues.  (b) A compliance program that meets Federal requirements  for  managed care  provider  compliance  programs,  as  specified  in the contract or contracts between the department and the Medicaid managed care  provider shall  be  deemed  in compliance with the provisions in this section, so long as such programs adequately address medical assistance program risk areas and compliance issues. For purposes of  this  section,  a  managed care  provider  is  as  defined  in  paragraph (c) of subdivision one of section three hundred sixty-four-j of this chapter, and includes managed long term care plans.  (c) In the event that the  commissioner  of  health  or  the  Medicaid inspector  general  finds that the provider does not have a satisfactory program within ninety days after the effective date of  the  regulations issued pursuant to subdivision four of this section, the provider may be subject to any sanctions or penalties permitted by federal or state laws and  regulations,  including  revocation  of the provider's agreement to participate in the medical assistance program.  (d)(1) In the first  instance  of  the  Medicaid  inspector  general's determination  that  the  provider,  including  a  Medicaid managed care provider, that has failed to adopt and implement  a  compliance  program which  satisfactorily  meets  the  requirements  of  this  section,  the Medicaid  inspector  general  may  impose  a  monetary  penalty  of five thousand dollars per calendar month, for a maximum  of  twelve  calendar months against a provider, including Medicaid managed care providers.  (2) The Medicaid inspector general may impose a monetary penalty of up to  ten  thousand  dollars  per  calendar month, for a maximum of twelve calendar months against a provider, including a  Medicaid  managed  care provider,  that  has  failed to adopt and implement a compliance program which satisfactorily meets  the  requirements  of  this  section,  if  a penalty  was previously imposed under subparagraph one of this paragraph within the previous five years.  (e) A provider, including a Medicaid managed  care  provider,  against whom  a  monetary  penalty  is imposed pursuant to paragraph (d) of this subdivision shall be entitled to notice and an opportunity to be  heard, including  the right to request a hearing pursuant to section twenty-two of this chapter.   4. Providers that shall be subject to the provisions of  this  section include, but are not limited to:  (a)  those  subject  to  the  provisions  of articles twenty-eight and thirty-six of the public health law;  (b) those subject to the provisions of articles sixteen and thirty-one of the mental hygiene law;  (c) notwithstanding  the  provisions  of  section  forty-four  hundred fourteen of the public health law, managed care providers, as defined in section  three  hundred  sixty-four-j of this title and includes managed long-term care plans; and  (d) other providers of care, services and supplies under  the  medical assistance  program  for  which  the  medical  assistance  program  is a substantial portion of their business operations.   5. (a) The  Medicaid  inspector  general,  in  consultation  with  the department  of  health,  shall  promulgate  any regulations necessary to implement this section.  (b) The Medicaid inspector general shall accept programs and processes implemented pursuant to  section  forty-four  hundred  fourteen  of  the public  health law as satisfying the obligations of this section and the regulations promulgated thereunder  when  such  programs  and  processes incorporate the objectives contemplated by this section.   6.  (a)  If  a  person  has  received an overpayment under the medical assistance program, the person shall:  (1) report and return the overpayment to the department; and  (2) notify the Medicaid inspector general in writing of the reason for the overpayment.  (b) An overpayment shall be reported and returned under paragraph  (a) of  this  subdivision  by the later of: (1) the date which is sixty days after the date on which the overpayment was identified; or (2) the  date any  corresponding  cost  report  is  due,  if  applicable. A person has identified an overpayment when the person has or should have through the exercise  of  reasonable  diligence,  determined  that  the  person  has received  an overpayment and quantified the amount of the overpayment. A person should have determined that the person  received  an  overpayment and  quantified  the  amount  of  the overpayment if the person fails to exercise reasonable  diligence  and  the  person  in  fact  received  an overpayment.  (c)  The  deadline for returning overpayments shall be tolled when the following occurs:  (1)  the  Medicaid  inspector  general  acknowledges  receipt   of   a submission  to  the Medicaid inspector general's self-disclosure program under subdivision seven of this section, and shall remain  tolled  until such  time  as  a  self-disclosure and compliance agreement, pursuant to subdivision  seven  of  this  section  is  fully  executed,  the  person withdraws from  the  self-disclosure  program,  the  person  repays  the overpayment  and  any  interest  due,  or the person is removed from the self-disclosure program by the Medicaid inspector general; or  (2) in the absence of a  finding  of  fraud  a  person  may  repay  an overpayment  through  installment  payments  as described in subdivision seven of this section and shall remain tolled until  such  time  as  the provider  repays  the  overpayment  and  any  interest due, the Medicaid inspector general rejects the installment payment schedule requested  by the  provider,  or  the  provider  fails to comply with the terms of the installment payment schedule.  (d) Any overpayment retained  by  a  person  after  the  deadline  for reporting  and  returning  the  overpayment  under paragraph (b) of this subdivision  shall  be  subject  to  a  monetary  penalty  pursuant   to subdivision four of section one hundred forty-five-b of this article.  (e)  For  purposes  of  this subdivision, "person" means a provider of services or supplies, managed care provider, as defined in paragraph (b) of subdivision one of section three hundred sixty-four-j of  this  title and  includes  managed  long-term  care  plans,  and  does  not  include recipients of the medical assistance program.   7. Self-disclosure program. (a) Notwithstanding the provisions of  any other  law  to  the  contrary,  there  is hereby established a voluntary self-disclosure program to be administered  by  the  Medicaid  inspector general,   in  consultation  with  the  commissioner,  for  all  persons described  in  this  section  owing  any  overpayment  to  the   medical assistance program.  (b)  For  purposes  of  this  subdivision,  "person"  means any person providing services or receiving payment  under  the  medical  assistance program,  a  managed  care  provider  as  defined  in  paragraph  (b) of subdivision one of section three hundred  sixty-four-j  of  this  title, including  managed  long-term  care  plans,  and  any  subcontractors or network providers thereof.  (c) In order to be eligible  to  participate  in  the  self-disclosure program, a person shall satisfy the following conditions:  (1)  the  person is not currently under audit, investigation or review by the Medicaid  inspector  general,  unless  the  overpayment  and  the related  conduct  being  disclosed  does  not  relate  to  the  Medicaid inspector general's audit, investigation or review;  (2) the person is disclosing an overpayment and related  conduct  that the   Medicaid   inspector   general  has  not  determined,  calculated, researched or identified at the time of the disclosure;  (3) the overpayment and related conduct is reported  by  the  deadline specified in subdivision six of this section; and  (4)  the person is not currently a party to any criminal investigation being conducted by the deputy attorney general for  the  Medicaid  fraud control  unit  or  an  agency  of  the  United  States government or any political subdivision thereof.  (d)  Notwithstanding  subdivision  three  of   section   one   hundred forty-five-b  of  this article, the Medicaid inspector general may waive interest on any overpayment reported,  returned,  and  explained  by  an eligible   person  under  this  subdivision.  Furthermore,  an  eligible person's good faith participation in the self-disclosure program may  be considered   as   a   mitigating  factor  in  the  determination  of  an administrative enforcement action.  (e) To participate in the self-disclosure program, an eligible  person shall  apply  by  submitting a self-disclosure statement in the form and manner prescribed by the Medicaid inspector general. The statement shall contain all the information required by the Medicaid  inspector  general to effectively administer the self-disclosure program.  (f)   (1)  The  eligible  person  shall  pay  the  overpayment  amount determined by the Medicaid inspector general to  the  department  within fifteen  days  of the Medicaid inspector general notifying the person of the amount due.  (2) In the event the Medicaid inspector general is satisfied that  the person  cannot make immediate full payment of the disclosed overpayment, the Medicaid inspector general  may  permit  the  person  to  repay  the overpayment  and  any  interest  due  through  installment payments. The Medicaid inspector general may require a financial disclosure  statement setting  forth  information  concerning  the  person's  current  assets, liabilities, earnings, and other financial information  before  entering into an installment payment plan with the person.  (3)  If  the  person  and  the  overpayment  are  eligible  under  the self-disclosure  program,  the  Medicaid  inspector  general  shall   be authorized to enter into a self-disclosure and compliance agreement with the  person.  The self-disclosure and compliance agreement shall be in a form to be established by the Medicaid  inspector  general  and  include such  terms  as  the  Medicaid  inspector  general shall require for the repayment of the person's disclosed overpayment and enable  and  require the  person  to  comply  with the requirements of the medical assistance program in the future. The person shall execute the self-disclosure  and compliance  agreement  within  fifteen  days of receiving said agreement from the Medicaid inspector general, or such other  timeframe  permitted by  the  Medicaid  inspector  general, provided however, that such other period is not less than fifteen days.  (4) If  the  person  provides  false  material  information  or  omits material information in his or her submissions to the Medicaid inspector general,  or  attempts to defeat or evade an overpayment due pursuant to the  self-disclosure  and  compliance  agreement  executed  under   this subdivision,  or  fails  to comply with the terms of the self-disclosure and compliance agreement, or refuses to execute the self-disclosure  and compliance  agreement  in  the  timeframes specified under this section, such  agreement  shall  be   deemed   rescinded   and   the   provider's participation in the self-disclosure program terminated.  (5)  A  person against whom a self-disclosure and compliance agreement is  rescinded  and  participation  in  the  self-disclosure  program  is terminated  pursuant  to  subparagraph  four  of this paragraph shall be entitled to notice.  (g)  The  Medicaid  inspector  general,  in  consultation   with   the commissioner,  may promulgate regulations, issue forms and instructions, and take any and all other actions necessary to implement the provisions of  the  self-disclosure  program  established  under  this  section  to maximize public awareness and participation in such program.