2023 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.