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1 Compliance Update Promoting Recovery and Reducing Risk.

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1 1 Compliance Update Promoting Recovery and Reducing Risk

2 2 Agenda The Deficit Reduction Act: Introduction Current federal issues in behavioral health – reducing risk. The proposed draft Rehab Option Rules

3 3 Medicaid: The Primary Target Redefining Risk in Behavioral Health

4 4 Warning: This will not be fun

5 5 Medicaid Shared cost federal and state Shared cost federal and state Two opinions on quality and content of services Two opinions on quality and content of services Greater emphasis right now at federal level on cost savings Greater emphasis right now at federal level on cost savings Narrower definitions Narrower definitions Medical model – health vs wellness Medical model – health vs wellness

6 6 Medicaid Federal health care program: Federal health care program: Medical model Medical model Not a recovery model in that wellness or an expanded view of health is not endorsed. Recovery goals are included in the new regs. Not a recovery model in that wellness or an expanded view of health is not endorsed. Recovery goals are included in the new regs. Has for the first time suggested PCP approaches to care in draft rehab services and case management rules. Has for the first time suggested PCP approaches to care in draft rehab services and case management rules. Regardless of the approach you must stay within their rules Regardless of the approach you must stay within their rules Payment decisions all based on medical necessity Payment decisions all based on medical necessity

7 7 Medicaid Federal health care program: Federal health care program: Built on regulations and service codes Built on regulations and service codes Regulations include “conditions of payment” – basic quality, facility, governance types of issues. Regulations include “conditions of payment” – basic quality, facility, governance types of issues. Service specific rules including the codes, modifiers, who, what, where and when and sometimes how often Service specific rules including the codes, modifiers, who, what, where and when and sometimes how often

8 8 Medicaid State services billed to Medicaid: State services billed to Medicaid: Built on state plan Built on state plan Regulations that adapt to federal advice Regulations that adapt to federal advice Include similar conditions of payment and service specific rules Include similar conditions of payment and service specific rules In Maryland combination of FFS and case-type rates In Maryland combination of FFS and case-type rates

9 9 Among the Federal Frustrations with Medicaid Fraud efforts are uneven Fraud efforts are uneven Laws do not exist to prosecute as Feds would like Laws do not exist to prosecute as Feds would like Investment in investigating arms is inadequate given the risk Investment in investigating arms is inadequate given the risk Rules are different in each state making national coverage decisions and enforcement appear to be difficult Rules are different in each state making national coverage decisions and enforcement appear to be difficult Providers implementation of compliance efforts appear to be inadequate given audit findings Providers implementation of compliance efforts appear to be inadequate given audit findings “Medicaiding” services and other financing schemes “Medicaiding” services and other financing schemes

10 10 The Result The Deficit Reduction Act of 2005: The Deficit Reduction Act of 2005: “Hi, we’re the federal government and we’re here to help you.” “Hi, we’re the federal government and we’re here to help you.”

11 11 Why pay attention to the DRA? The DRA The DRA Requires any provider who gets bills more or pays out more than $5mm must have a compliance program as of January 1, 2007. Requires any provider who gets bills more or pays out more than $5mm must have a compliance program as of January 1, 2007. “Condition of payment” “Condition of payment” Going from suggestion to mandate Going from suggestion to mandate Provider put on notice that they are on their own – no degrees of separation between you and federal Medicaid Provider put on notice that they are on their own – no degrees of separation between you and federal Medicaid Lots of money to investigators Lots of money to investigators Splitting – you vs your staff Splitting – you vs your staff Similar to Medicare efforts Similar to Medicare efforts

12 12 States Must Take Notice Some very active attorney general efforts to reduce cost of Medicaid in cooperation with the legislature Some very active attorney general efforts to reduce cost of Medicaid in cooperation with the legislature NY State OIG, Texas OIG, Georgia OIG NY State OIG, Texas OIG, Georgia OIG Some pressure on states to make sure that the state Medicaid agency is providing adequate oversight – audit findings, etc. Some pressure on states to make sure that the state Medicaid agency is providing adequate oversight – audit findings, etc. Target referral rates to MCFUs Target referral rates to MCFUs Feds do not believe this is enough – they do understand the lure of Medicaid as a financing vehicle and have upped the ante on fraud, abuse and waste in Medicaid. Feds do not believe this is enough – they do understand the lure of Medicaid as a financing vehicle and have upped the ante on fraud, abuse and waste in Medicaid.

13 13 Risk in Behavioral Health Structural Issues

14 14 Why the High Level of Risk for BH?: Internal Issues Paraprofessionals Paraprofessionals Recovery/Person Centered Planning and professional boundaries – not simple concepts Recovery/Person Centered Planning and professional boundaries – not simple concepts Medical necessity: often not understood or documented Medical necessity: often not understood or documented Documentation Documentation Skill building – understanding concept of rehabilitation Skill building – understanding concept of rehabilitation Lack of clinical supervision –see Minnesota regs and new Rehab regs Lack of clinical supervision –see Minnesota regs and new Rehab regs Peer services now being promoted and lauded as a new model of care Peer services now being promoted and lauded as a new model of care “highly regulated” – sometimes hard to believe its real “highly regulated” – sometimes hard to believe its real

15 15 Why the High Level of Risk for BH?: Internal Issues Case management and Rehab: new draft rules require changes in treatment models, new attention to service definitions and codes used Case management and Rehab: new draft rules require changes in treatment models, new attention to service definitions and codes used Fine line between managing and attending to a treatment plan and providing services in CM Fine line between managing and attending to a treatment plan and providing services in CM Paraprofessionals are primaries in both Paraprofessionals are primaries in both Rebellion against the medical model without understanding what that means or the consequences Rebellion against the medical model without understanding what that means or the consequences

16 16 Why the High Level of Risk for BH?: External Issues Service Coding and Definitions: Service Coding and Definitions: Codes “interpreted” by states – e.g. counseling vs. therapy, extensions of CM into “supportive counseling”, crisis interventions – delegated function often Codes “interpreted” by states – e.g. counseling vs. therapy, extensions of CM into “supportive counseling”, crisis interventions – delegated function often Different providers, meanings, uses, etc. state by state with no national agreements to hang onto – little opportunity for shared learning Different providers, meanings, uses, etc. state by state with no national agreements to hang onto – little opportunity for shared learning Rehab vs habilitation Rehab vs habilitation Federal auditors defining rehab for us Federal auditors defining rehab for us State plan to regulation to advice –often gaps or not clear, bright lines State plan to regulation to advice –often gaps or not clear, bright lines

17 17 Why the High Level of Risk for BH?: External Issues Credentialing: Credentialing: No uniform standards, requirements, especially for paraprofessionals – again no cross fertilization among states No uniform standards, requirements, especially for paraprofessionals – again no cross fertilization among states Credentialling “creep” with paraprofessionals – noted in recent audits –no take back, just noted concern Credentialling “creep” with paraprofessionals – noted in recent audits –no take back, just noted concern Group therapy: 50% denial rate must mean something Group therapy: 50% denial rate must mean something EBPs: require specialized understanding and services – mentioned in one set of regulations with providers all shrugging their shoulders EBPs: require specialized understanding and services – mentioned in one set of regulations with providers all shrugging their shoulders

18 18 Why the High Level of Risk for BH?: External Issues EBPs: EBPs: Promotion without clear understanding of financing – assumed Medicaid role Promotion without clear understanding of financing – assumed Medicaid role CMS guidance and sign-off needed - need avenue to get answers that can be relied upon state to state CMS guidance and sign-off needed - need avenue to get answers that can be relied upon state to state Lack of understanding of differences between practice and process Lack of understanding of differences between practice and process

19 19 Why the High Level of Risk for BH?: External Issues Courts: Courts: Who’s decision trumps? Who’s decision trumps? Can a judge order a client into a Medicaid reimbursed service? Do issues like willingness to participate, ability to participate, medical necessity still matter? Can a judge order a client into a Medicaid reimbursed service? Do issues like willingness to participate, ability to participate, medical necessity still matter? Impact both in mental health and in substance abuse Impact both in mental health and in substance abuse TRIS audit – later TRIS audit – later New CM rule: the court systems stand apart and independent from Medicaid New CM rule: the court systems stand apart and independent from Medicaid

20 20 Why the High Level of Risk for BH?: External Issues Child Welfare: Child Welfare: Who is responsible for what? Who is responsible for what? Medicaid appears to be reaching its limits – note in new regulations great concern with duplicate services that are intrinsic to other funded services Medicaid appears to be reaching its limits – note in new regulations great concern with duplicate services that are intrinsic to other funded services New Rule Rehab: intrinsic element New Rule Rehab: intrinsic element Case Management new rule: parsing out the activities Case Management new rule: parsing out the activities

21 21 Why the High Level of Risk for BH?: External Issues Financing: Financing: “Medicaiding” mental health “Medicaiding” mental health Move to FFS: productivity requirements Move to FFS: productivity requirements Clinical supervisors becoming practice managers Clinical supervisors becoming practice managers Increased compliance risk Increased compliance risk Further changes in financing likely Further changes in financing likely Removing case, monthly, per diem rates except for PRTF’s Removing case, monthly, per diem rates except for PRTF’s PRTFs and IMD issues: campus based services; large facility conversions, etc. PRTFs and IMD issues: campus based services; large facility conversions, etc.

22 22 Why the High Level of Risk for BH?: External Issues The OIG’s Work Plan The OIG’s Work Plan 2005, 2006: resurgence of BH issues 2005, 2006: resurgence of BH issues Inpatient Inpatient Outpatient Outpatient Rehabilitation services Rehabilitation services Outpatient Alcoholism Outpatient Alcoholism More – See handout More – See handout HCBS Waivers – new focus this year HCBS Waivers – new focus this year

23 23 Federal Audit Issues A rapidly moving target

24 24 Let’s start with the national data – we have never done well……. Partial hospital programs - 80 to 100% denial rates – 1980’s and 1990’s Partial hospital programs - 80 to 100% denial rates – 1980’s and 1990’s Rehabilitation option – West Virginia series – 70% and up denials - Abraxas: 1995 Rehabilitation option – West Virginia series – 70% and up denials - Abraxas: 1995 Georgia – internal state audit – led to rate changes and external ASO – 1990’s Georgia – internal state audit – led to rate changes and external ASO – 1990’s Medicare outpatient – almost 20% of medication management up to 50% of group therapy -2001 Medicare outpatient – almost 20% of medication management up to 50% of group therapy -2001 Rehabilitation option 2004 & 2005: Iowa – adult services – 100% error rates, kids lower Rehabilitation option 2004 & 2005: Iowa – adult services – 100% error rates, kids lower MA TCM audit – 2006 - $87,000,000 payback MA TCM audit – 2006 - $87,000,000 payback Indiana Community Mental Health - $21,000,000 –error rate approximately 33% Indiana Community Mental Health - $21,000,000 –error rate approximately 33%

25 25 Why pay attention? This is often the only information we get on the opinion of the federal government – often their audits are content based This is often the only information we get on the opinion of the federal government – often their audits are content based What about internal state audits (from a provider’s perspective): What about internal state audits (from a provider’s perspective): Focus on network maintenance – in some cases financial viability Focus on network maintenance – in some cases financial viability Not necessarily rigor of an extrapolation Not necessarily rigor of an extrapolation “Is it there” audits “Is it there” audits Can be a confusing message – compliance vs maximization of Medicaid dollars Can be a confusing message – compliance vs maximization of Medicaid dollars THIS WILL SOON END BECAUSE OF FEDERAL PRESSURES THIS WILL SOON END BECAUSE OF FEDERAL PRESSURES

26 26 Why pay attention? New audit approaches New audit approaches States extrapolating to get returns from providers States extrapolating to get returns from providers Warnings from CMS that providers don’t hear about Warnings from CMS that providers don’t hear about Special attention to service content and distinguishing between is it there and medical necessity rules giving the government a second shot Special attention to service content and distinguishing between is it there and medical necessity rules giving the government a second shot

27 27 Why pay attention? New auditors: New auditors: Texas Model – state auditing function housed all together under a Medicaid OIG: Texas Model – state auditing function housed all together under a Medicaid OIG: State Medicaid agency program integrity State Medicaid agency program integrity MCFU MCFU All other auditors All other auditors New York and other states following along New York and other states following along

28 28

29 29 Why the bad results? Service failures vs. documentation failures Service failures vs. documentation failures Documentation: only tangible proof of our interventions Documentation: only tangible proof of our interventions Historically: documentation standards low; purpose was to speak to treatment team; some liability issues (many suggesting less documentation, less likely any liability) Historically: documentation standards low; purpose was to speak to treatment team; some liability issues (many suggesting less documentation, less likely any liability) Now: competing pressures: documentation must speak to payer, high value on its timeliness and accuracy, HIPAA encourages access by person you are treating so it must be understandable, pressures from PCP to use more of client’s own words vs medical model; lots of documentation completed by paraprofessionals Now: competing pressures: documentation must speak to payer, high value on its timeliness and accuracy, HIPAA encourages access by person you are treating so it must be understandable, pressures from PCP to use more of client’s own words vs medical model; lots of documentation completed by paraprofessionals

30 30 Why the bad results? Service failures vs. documentation failures Service failures vs. documentation failures Service content Service content Big problem in the recent audits Big problem in the recent audits Definition of a rehabilitative service Definition of a rehabilitative service Services not directed to the exclusive benefit of the client Services not directed to the exclusive benefit of the client Non-covered services Non-covered services Case management: definition does not include the provision of an underlying medical, social, or other service Case management: definition does not include the provision of an underlying medical, social, or other service Integrated services: unbundling difficult Integrated services: unbundling difficult Milieu questions Milieu questions Maintenance level services Maintenance level services

31 31 Its as simple as: habilitation vs rehabilitation Habilitation - MR Habilitation - MR _______ Baseline of Functionality ____ Rehabilitation – MH, SA Rehabilitation – MH, SA

32 32 It’s as simple and as complicated as: Therapy: Therapy: Is there a therapeutic strategy? Is there a therapeutic strategy? Is the there evidence that the therapeutic strategy is appropriate and being implemented? Is the there evidence that the therapeutic strategy is appropriate and being implemented? Is there evidence that the cognitive abilities of the therapist are being used? Is there evidence that the cognitive abilities of the therapist are being used? Is the consumer responding to the therapeutic interventions? How? Is the consumer responding to the therapeutic interventions? How?

33 33 OIG Audit of Medicare Part B Outpatient MH Service - 2001 34% of individual therapy services inappropriate 34% of individual therapy services inappropriate 50% of group therapy services inappropriate 50% of group therapy services inappropriate 40% of psych testing services inappropriate 40% of psych testing services inappropriate 16% of pharmacological services inappropriate 16% of pharmacological services inappropriate

34 34 OIG Audit of Medicare Part B Outpatient MH Service – 2006 Overall error rate of 47% Overall error rate of 47%

35 35 Services Not Focused on the Exclusive Benefit of the Client Medicaid does not consider the family to be a unit/individual for treatment purposes. Medicaid does not consider the family to be a unit/individual for treatment purposes. Services must be directed exclusively to the individual who has the diagnosis and who’s Medicaid number is on the claim Services must be directed exclusively to the individual who has the diagnosis and who’s Medicaid number is on the claim Indirect benefit to the individual is not enough Indirect benefit to the individual is not enough Parent issues particular focus Parent issues particular focus

36 36 Excerpt: CMS and EBPS “consultation with other family members can be a necessary part of planning and providing care to patients in need of psychiatric services. Consultation can, however, devolve to a point where it becomes a means of treating others rather than, or in addition to, the primary recipient. Medicaid would not reimburse for services provided to ineligible family members for treatment of their problems not related to the treatment of the Medicaid patient. In addition, Medicaid would not reimburse for family psychoeducation classes unless tailored specifically toward the Medicaid beneficiary.” Definition CM and Rehab confirm this as well

37 37 Family Treatment Primary purpose of the therapy must be the treatment of the client’s condition Primary purpose of the therapy must be the treatment of the client’s condition Family treatment is the process of family participation in the treatment process of the client. Family treatment is the process of family participation in the treatment process of the client. Not for treating family or family members other than identified client Not for treating family or family members other than identified client Not for history taking or coordination of care Not for history taking or coordination of care Expect to see intervention in the family in order to change or modify the structure, dynamics and interactions that act on the client’s emotions and behavior. Expect to see intervention in the family in order to change or modify the structure, dynamics and interactions that act on the client’s emotions and behavior.

38 38 Non-covered: Social Services Iowa Adult Audit: “In addition, section 4385(B) of the State Medicaid Manual states that although a social service, in the course of addressing an individual’s basic life needs (adequate food, housing, or income), may indirectly affect the individual’s health as well, it is not covered under Medicaid because it is not directly and primarily concerned with the individual’s health. A social service may be furnished directly to an individual beneficiary, but it typically is directed broadly at the individual’s overall well-being rather than specifically at the individual’s health.” Iowa Adult Audit: “In addition, section 4385(B) of the State Medicaid Manual states that although a social service, in the course of addressing an individual’s basic life needs (adequate food, housing, or income), may indirectly affect the individual’s health as well, it is not covered under Medicaid because it is not directly and primarily concerned with the individual’s health. A social service may be furnished directly to an individual beneficiary, but it typically is directed broadly at the individual’s overall well-being rather than specifically at the individual’s health.”

39 39 Grocery Shopping: example Taking client grocery shopping: social service Taking client grocery shopping: social service Linkage to food bank/apply food stamps: case management/ community support Linkage to food bank/apply food stamps: case management/ community support Setting up rides for client to grocery store (church/family/etc): case management/community support Setting up rides for client to grocery store (church/family/etc): case management/community support Teaching client to grocery shop: skill building (rehabilitative)/community support Teaching client to grocery shop: skill building (rehabilitative)/community support

40 40 Recreation: example Going with client to game: friend, Big Sister/Brother Going with client to game: friend, Big Sister/Brother Linkage client to YMCA: case management/ community support Linkage client to YMCA: case management/ community support Teaching client/family to apply for a scholarship to Y Camp: case management/community support Teaching client/family to apply for a scholarship to Y Camp: case management/community support Teaching client how to use bus to get to YMCA on own: skill building (rehabilitative)/community support Teaching client how to use bus to get to YMCA on own: skill building (rehabilitative)/community support

41 41 Case Management and TCM Federal government pays 70% of cost of TCM program Federal government pays 70% of cost of TCM program TCM allows discrimination – unlike rest of Medicaid program TCM allows discrimination – unlike rest of Medicaid program Federal concerns: Federal concerns: Costs Costs Duplication of effort Duplication of effort Independence?? Independence??

42 42 Case Management and TCM New definition: New definition: Assessment Assessment Treatment planning Treatment planning Referral and referral related activities Referral and referral related activities Evaluation and monitoring of plan Evaluation and monitoring of plan See handout See handout

43 43 Case Management and TCM MA audit of DSS: MA audit of DSS: On March 4, 2003, the social worker received a call from a foster parent, called the child’s probation officer, and attended court with the child. On March 4, 2003, the social worker received a call from a foster parent, called the child’s probation officer, and attended court with the child. On March 11, 2003, the social worker made a home visit accompanied by another social worker who stated that they were working on budgeting, parenting, and the child’s setting. On March 11, 2003, the social worker made a home visit accompanied by another social worker who stated that they were working on budgeting, parenting, and the child’s setting.

44 44 Non-covered: Vocational Services CMS statement on EBPs – Supported Employment: CMS statement on EBPs – Supported Employment: Medicaid is statutorily excluded from the provision of vocational services. Medicaid is statutorily excluded from the provision of vocational services. “Therefore, under the State Plan, Medicaid cannot pay for the employment of an individual. Similarly, payment may not be made for employment assessments or ongoing support to maintain employment (emphasis added) except under an HCBS waiver. However, Medicaid can pay for the medical services that enable an individual to function in the workplace.” “Therefore, under the State Plan, Medicaid cannot pay for the employment of an individual. Similarly, payment may not be made for employment assessments or ongoing support to maintain employment (emphasis added) except under an HCBS waiver. However, Medicaid can pay for the medical services that enable an individual to function in the workplace.”

45 45 Non-covered: Vocational Services Watching especially for on the job interventions: Watching especially for on the job interventions: Before work Before work After work After work During breaks During breaks What is clinical outcome expected? What is clinical outcome expected?

46 46 Non-covered: services not specific to a diagnosis Parenting skills Parenting skills Normal developmental goals or benchmarks Normal developmental goals or benchmarks

47 47 Non-covered: Socialization Recreational and socialization not covered by Medicaid Recreational and socialization not covered by Medicaid Therapeutic recreational – possibly but mental health goal must be clear Therapeutic recreational – possibly but mental health goal must be clear Why is this the best or only vehicle for skill development? Why is this the best or only vehicle for skill development? What is clinical outcome? What is clinical outcome? Opportunities to socialize not covered Opportunities to socialize not covered Meals and other “social” settings must be examined for medical necessity Meals and other “social” settings must be examined for medical necessity Documentation is sophisticated and subtle Documentation is sophisticated and subtle This is reiterated in the new regs as well This is reiterated in the new regs as well

48 48 Abraxas Audit – W.Virginia JCAHO Accredited “Between 3:30 and 12:00 midnight the client attended a Pittsburgh Pirates game with staff. The client viewed the game and socially interacted with all peers and followed all directions. Abraxas staff provided client with positive feedback for his behavior while at game.” “Between 3:30 and 12:00 midnight the client attended a Pittsburgh Pirates game with staff. The client viewed the game and socially interacted with all peers and followed all directions. Abraxas staff provided client with positive feedback for his behavior while at game.”

49 49 Florida Provider “ Worker accompanied client to community pool. Client very talkative, spoke about school, his family, likes & dislikes. Client enjoyed swimming pool, especially going down slide. Client anxious for worker to join him in pool. Client very outgoing, wanting to have fun. Client also interacted well with other children." “ Worker accompanied client to community pool. Client very talkative, spoke about school, his family, likes & dislikes. Client enjoyed swimming pool, especially going down slide. Client anxious for worker to join him in pool. Client very outgoing, wanting to have fun. Client also interacted well with other children."

50 50 Eligibility Criteria As with all Medicare/Medicaid services: As with all Medicare/Medicaid services: Client must be able to participate Client must be able to participate Client must be able to benefit (See also definition of maintenance level services) Client must be able to benefit (See also definition of maintenance level services) Client must be a voluntary participant Client must be a voluntary participant

51 51 Additional Guidance for MH and SA 16 Group Sessions: $672 16 Group Sessions: $672 “It was obvious that for whatever reason this patient was unable to participate or benefit from the program and attended only 4 days during May. There were no changes ordered in his plan of care or medication. This patient requires a more structured living environment to monitor his medication compliance. Services denied as not medically appropriate for his mental condition.” “It was obvious that for whatever reason this patient was unable to participate or benefit from the program and attended only 4 days during May. There were no changes ordered in his plan of care or medication. This patient requires a more structured living environment to monitor his medication compliance. Services denied as not medically appropriate for his mental condition.”

52 52 Non-covered: Services that are not medically necessary Important concept Important concept All staff must understand that there needs to be a reason why you are seeing, phoning, discussing the individual that is related to their mental illness and is necessary to help them improve or maintain their level of functioning. All staff must understand that there needs to be a reason why you are seeing, phoning, discussing the individual that is related to their mental illness and is necessary to help them improve or maintain their level of functioning.

53 53 Non-covered: Services that are not medically necessary Maintenance vs. Acute services Maintenance vs. Acute services Different focus, possibly intensity Different focus, possibly intensity Chronic disease model is model for services but not well understood or documented Chronic disease model is model for services but not well understood or documented New rules: maintenance only allowed if in pursuit of a recovery goal New rules: maintenance only allowed if in pursuit of a recovery goal

54 54 Residential Services Audits and Recent Findings

55 55 Residential Services Milieu: non-covered, considered to be custodial care (watch this in day programs as well) Milieu: non-covered, considered to be custodial care (watch this in day programs as well) New proposed contract separates payments for room and board and treatment New proposed contract separates payments for room and board and treatment

56 56 Residential Services TRIS audit: TRIS audit: Disallowed day rate – not a PRTF Disallowed day rate – not a PRTF Required every service to be documented – looking for actual Medicaid eligible services Required every service to be documented – looking for actual Medicaid eligible services Clients still in the custody of juvenile justice and serving their sentence not covered by Medicaid Clients still in the custody of juvenile justice and serving their sentence not covered by Medicaid Rate cannot be justified by anticipated services but by actual services Rate cannot be justified by anticipated services but by actual services Milieu: non-covered, considered to be custodial care (watch this in day programs as well) Milieu: non-covered, considered to be custodial care (watch this in day programs as well) Room and board not covered unless the facility is a PRTF Room and board not covered unless the facility is a PRTF

57 57 Residential Services West Virginia Audit: West Virginia Audit: Notable for number of hours billed Notable for number of hours billed Denied anything that looked as if it was simply monitoring a client activity Denied anything that looked as if it was simply monitoring a client activity Notable for inattention to codes and what they required so that documentation did not match. Notable for inattention to codes and what they required so that documentation did not match.

58 58 Residential Services West Virginia Audit: West Virginia Audit: Between 8:00 AM and 11:00 AM, client was transported to dentist’s office for fillings. The client showed positive behavior by following rules, regulations, staff directions, and cooperating with the dentist and his staff. The staff gave the client positive verbal and written feedback and the client thanked the staff for the positive feedback. Units of Service: 6 Dollar Value: $72.00

59 59 Residential Services West Virginia Audit: West Virginia Audit: “services did not appear to be therapeutic activities that focus on basic living skills or services designed to improve or preserve a recipient’s level of functioning as required by the state plan. Rather, the services represented observations and monitoring of client activities, not medical or remedial services.” “services did not appear to be therapeutic activities that focus on basic living skills or services designed to improve or preserve a recipient’s level of functioning as required by the state plan. Rather, the services represented observations and monitoring of client activities, not medical or remedial services.”

60 60 Residential Services Iowa Audit Iowa Audit 3 children’s audit: Family Preservation Group Care RTS Outpatient Group Care: approx 50% error rate Minimum required services not provided Services in excess of minimum billed even when core requirements not met Services not rehab Documentation errors

61 61 Residential Services Iowa Audit Iowa Audit 3 children’s audit: Family Preservation Group Care RTS Outpatient Group Care: approx 50% error rate Minimum required services not provided Services in excess of minimum billed even when core requirements not met Services not rehab Documentation errors

62 62 Lessons Learned Provider beware Provider beware If it is too good to be true it is If it is too good to be true it is Everything that is therapeutic is not always a Medicaid covered service Everything that is therapeutic is not always a Medicaid covered service There is not a code for multiple daily behavioral interventions that exists outside of a per diem rate There is not a code for multiple daily behavioral interventions that exists outside of a per diem rate In discussing rates and costs – supervision, training, and oversight of staff costs must be captured and included in your negotiations In discussing rates and costs – supervision, training, and oversight of staff costs must be captured and included in your negotiations

63 63 Residential Services Risks Risks Program not evident Active treatment not being documented even if provided Watch hours of billing –can you really justify 4 hours of additional Medicaid eligible treatment on top of school, recreation, homework, etc.? New proposed hourly rate – can you meet this requirement with specific services?

64 64 WHEW!!!

65 65 Next: Rewriting your resume and the joys of hotel management Rewriting your resume and the joys of hotel management New Draft Rehab Rule New Draft Rehab Rule New Draft CM Rule New Draft CM Rule IMD discussion with Georgia Guidance IMD discussion with Georgia Guidance Compliance Programs Compliance Programs

66 66 The New Rehab Option Rule A very short summary

67 67 Expected Outcome 150mm in savings in 2008 150mm in savings in 2008 2.2 billion is savings from 2008 to 2012 2.2 billion is savings from 2008 to 2012 Primary savings to come from Medicaid not paying for inappropriate services and services that are “intrinsic” to other services and already being paid for by another party Primary savings to come from Medicaid not paying for inappropriate services and services that are “intrinsic” to other services and already being paid for by another party

68 68 Defined Terms Recommended by a physician or other licensed practitioner of the healing arts: note additional detail on responsibility Recommended by a physician or other licensed practitioner of the healing arts: note additional detail on responsibility Other licensed practitioner of the healing arts: defer to state but must be able to diagnose and treat Other licensed practitioner of the healing arts: defer to state but must be able to diagnose and treat Qualified providers: defers to state to determine who – you cannot have lesser credentials for rehab than you do for other like services in Medicaid Qualified providers: defers to state to determine who – you cannot have lesser credentials for rehab than you do for other like services in Medicaid

69 69 Defined Terms Under the direction of: confined to PT, OT, Speech, Hearing, etc. not MH or SA but suggestion that this model is valid for both Under the direction of: confined to PT, OT, Speech, Hearing, etc. not MH or SA but suggestion that this model is valid for both Rehabilitation plan: new and very prescriptive – see attachment Rehabilitation plan: new and very prescriptive – see attachment Restorative, remedial, and medical services: all allowed to be provided to MH, SA clients – note restorative services are now focused on functionality not specific skills Restorative, remedial, and medical services: all allowed to be provided to MH, SA clients – note restorative services are now focused on functionality not specific skills

70 70 Changes Rehab plan: Rehab plan: Recovery goals expected Recovery goals expected PCP recommended PCP recommended Client and/or family must be involved in planning, must sign, and must get a copy of the plan Client and/or family must be involved in planning, must sign, and must get a copy of the plan Plan requires additional detail –see handout Plan requires additional detail –see handout Signed by qualified professional per state law – State Scope of Practice Act –remember these services must be recommended by an LPHA Signed by qualified professional per state law – State Scope of Practice Act –remember these services must be recommended by an LPHA

71 71 Changes Rehab plan: Rehab plan: Recovery goals expected Recovery goals expected PCP recommended PCP recommended Client and/or family must be involved in planning, must sign, and must get a copy of the plan Client and/or family must be involved in planning, must sign, and must get a copy of the plan Plan requires additional detail –see handout Plan requires additional detail –see handout Signed by qualified professional per state law – State Scope of Practice Act –remember these services must be recommended by an LPHA Signed by qualified professional per state law – State Scope of Practice Act –remember these services must be recommended by an LPHA If it is not working the strategy must changes If it is not working the strategy must changes Review as necessary but at least every year Review as necessary but at least every year Maintenance level services must be in pursuit of a recovery goal Maintenance level services must be in pursuit of a recovery goal

72 72 Changes Non-covered services: Non-covered services: Services that provided by non-medical program either as a benefit or as an administrative activity (e.g. case management), including services that are intrinsic elements of programs other than Medicaid. Services that provided by non-medical program either as a benefit or as an administrative activity (e.g. case management), including services that are intrinsic elements of programs other than Medicaid. Therapeutic foster care Therapeutic foster care Packaged services furnished by foster care or child care institutions for a foster child Packaged services furnished by foster care or child care institutions for a foster child Adoption, family preservation, family reunification Adoption, family preservation, family reunification Routine supervision and non-medical support by teacher’s aides Routine supervision and non-medical support by teacher’s aides Habilitation services: individuals with mental retardation or related conditions Habilitation services: individuals with mental retardation or related conditions Recreational or social activities Recreational or social activities Services provided to inmates Services provided to inmates Services to residents of IMDs Services to residents of IMDs Room and board Room and board Services to those not Medicaid eligible Services to those not Medicaid eligible Services not to a specific individual Services not to a specific individual

73 73 The Proposed CM Rule CM and TCM Squeezed

74 74 Proposed Savings Current costs: 2006 - $2.84 billion Current costs: 2006 - $2.84 billion 1.28 billion over 4 years 1.28 billion over 4 years.37 billion in additional costs as programs in which case management is seen as an integral part take on their responsibilities.37 billion in additional costs as programs in which case management is seen as an integral part take on their responsibilities Net 800,000,000 + in potential savings Net 800,000,000 + in potential savings

75 75 Case Management Defined Direct assistance in gaining access to services Direct assistance in gaining access to services “In the context of this regulation, it is the individual’s access to care and services that is the subject of this management – not the individual.” “In the context of this regulation, it is the individual’s access to care and services that is the subject of this management – not the individual.” Redefined in Deficit Reduction Act –it was effective as of January 1, 2006. Redefined in Deficit Reduction Act –it was effective as of January 1, 2006.

76 76 Case Management Defined Case management “can assist individuals in gaining access to needed services, regardless of the funding source of the services to which the individual is referred.” Case management “can assist individuals in gaining access to needed services, regardless of the funding source of the services to which the individual is referred.” Modified by duplicate services discussion later. Modified by duplicate services discussion later.

77 77 Case Management Defined 4 Buckets: 4 Buckets: Assessment: comprehensive to allow for one CM – not confined to just talking to client – reassessment at least annually Assessment: comprehensive to allow for one CM – not confined to just talking to client – reassessment at least annually Treatment planning: must include the individual – CAN use PCP Treatment planning: must include the individual – CAN use PCP Referral Related activities: limited Referral Related activities: limited Evaluation and modification of the plan: includes coordinating activities and conferring with others, not just client if necessary – and as often as necessary Evaluation and modification of the plan: includes coordinating activities and conferring with others, not just client if necessary – and as often as necessary

78 78 Case Management Defined Can you contact individual’s who are not eligible for Medicaid or who are Medicaid eligible but not in the target population? Can you contact individual’s who are not eligible for Medicaid or who are Medicaid eligible but not in the target population? Yes but only on behalf of the covered individual – direct relationship to the eligible individual’s care is required. Yes but only on behalf of the covered individual – direct relationship to the eligible individual’s care is required.

79 79 Case Management Defined Can you require an individual to use CM/TCM services? Can you require an individual to use CM/TCM services? No – voluntary No – voluntary CM/TCM cannot be used as a gatekeeping function CM/TCM cannot be used as a gatekeeping function CM/TCM cannot be used to limit client choice of providers - watch for self- referrals (if CM can provide more than one service) and limited agency choices CM/TCM cannot be used to limit client choice of providers - watch for self- referrals (if CM can provide more than one service) and limited agency choices If a client declines CM/TCM or other Medicaid services – must be documented in medical record. If a client declines CM/TCM or other Medicaid services – must be documented in medical record.

80 80 Case Management Defined What are linkage and referral related activities? What are linkage and referral related activities? Disappointing Disappointing Do not include transport or escorting the client Do not include transport or escorting the client Do not include child care so client can attend appointment Do not include child care so client can attend appointment Does not include direct services Does not include direct services “Case management referral activity is completed once the referral and linkage have been made.” “Case management referral activity is completed once the referral and linkage have been made.”

81 81 Case Management Defined Can you provide services to individual’s that are institutionalized? Can you provide services to individual’s that are institutionalized? Yes recognized that hospital d/c planners have limited access to community transitional activities Yes recognized that hospital d/c planners have limited access to community transitional activities Yes, but: (this is a state’s choice) Yes, but: (this is a state’s choice) Not for individual’s who are 22 to 64 years and in an IMD (yes for those under 22 in an IMD/PRTF) Not for individual’s who are 22 to 64 years and in an IMD (yes for those under 22 in an IMD/PRTF) Not for individual’s incarcerated and in a public institution Not for individual’s incarcerated and in a public institution Different periods of time for those institutionalized >180 days and 180 days and < 180 days You don’t get the FFP until the client is out, enrolled with the CM and receiving services You don’t get the FFP until the client is out, enrolled with the CM and receiving services

82 82 Case Management Defined Can you have multiple Medicaid case managers? NO Can you have multiple Medicaid case managers? NO “The case manager should be the focus for coordinating and overseeing the effectiveness of all providers and programs in responding to the assessed needs.” “The case manager should be the focus for coordinating and overseeing the effectiveness of all providers and programs in responding to the assessed needs.”

83 83 Case Management Defined Can you have multiple case managers? Can you have multiple case managers? Extremely complicated but: Extremely complicated but: You can only have one Medicaid CM or TCM who is responsible for managing case based on a comprehensive assessment of all needs. You can only have one Medicaid CM or TCM who is responsible for managing case based on a comprehensive assessment of all needs. You may have a client who is receiving case management services as a part of another state or federal program – (not another Medicaid program) – and they may be eligible for Medicaid CM services for those CM services NOT covered by the other state or federal program. You may have a client who is receiving case management services as a part of another state or federal program – (not another Medicaid program) – and they may be eligible for Medicaid CM services for those CM services NOT covered by the other state or federal program. States given up to 2 years to come into compliance with this States given up to 2 years to come into compliance with this

84 84 Case Management Defined Who can provide CM services? Who can provide CM services? Up to the state Up to the state Qualifications must be reasonably related to the demands of the Medicaid CM services Qualifications must be reasonably related to the demands of the Medicaid CM services Still allowed to limit CM providers of TCM to mentally ill and DD populations Still allowed to limit CM providers of TCM to mentally ill and DD populations

85 85 Case Management Defined Can CM provide more than one type of service? Can CM provide more than one type of service? Yes as long as they meet credentials and other service specific requirements Yes as long as they meet credentials and other service specific requirements Yes as long as freedom of choice is ensured Yes as long as freedom of choice is ensured

86 86 Case Management Defined Duplication – where are they going? Duplication – where are they going? First: states are allowed to use Medicaid CM dollars to substitute for CM services the state was formerly paying for funded solely with state or local dollars. First: states are allowed to use Medicaid CM dollars to substitute for CM services the state was formerly paying for funded solely with state or local dollars. Second: clients who fall under more than one TCM category must choose only one Second: clients who fall under more than one TCM category must choose only one Three: an exception is made for CM services ordered under an IEP or ISFP even though these are jointly federal and state funded services Three: an exception is made for CM services ordered under an IEP or ISFP even though these are jointly federal and state funded services

87 87 Case Management Defined Does CM need to be face to face? Does CM need to be face to face? No can do either face to face or telephone contact. No can do either face to face or telephone contact. Written not included - emails ect. Written not included - emails ect.

88 88 Case Management Defined Integral components/duplicate services: Integral components/duplicate services: Managed care: usually responsible for managing access to their own services – FFP not available for CM/TCM of medical services already managed by the managed care plan. Managed care: usually responsible for managing access to their own services – FFP not available for CM/TCM of medical services already managed by the managed care plan. Physician office referrals: integral and not separate Physician office referrals: integral and not separate

89 89 Case Management Defined Integral components/duplicate services: Integral components/duplicate services: Foster Care: includes case planning, case management activities Foster Care: includes case planning, case management activities Child Welfare/Protective services: includes for some children under protective orders same as above – child welfare services are considered to be the “direct services” of the CW system and not Medicaid CM Child Welfare/Protective services: includes for some children under protective orders same as above – child welfare services are considered to be the “direct services” of the CW system and not Medicaid CM This includes a prohibition on paying for contractors of the CW system who are providing CM services because they are fulfilling the obligations of the CW system. This includes a prohibition on paying for contractors of the CW system who are providing CM services because they are fulfilling the obligations of the CW system.

90 90 Case Management Defined Integral components/duplicate services: Integral components/duplicate services: Parole and Probation: functions exist independent of the Medicaid program Parole and Probation: functions exist independent of the Medicaid program No parole officers or contractors of the justice system for TCM No parole officers or contractors of the justice system for TCM No services that are in effect part of the administration of the State’s parole or probation system No services that are in effect part of the administration of the State’s parole or probation system

91 91 Case Management Defined Integral components/duplicate services: Integral components/duplicate services: Public Guardianship Public Guardianship State or locally administered and independent of the Medicaid program State or locally administered and independent of the Medicaid program You can assist decision-makers but you are not the decision-maker You can assist decision-makers but you are not the decision-maker Cannot replace the function or fund the function Cannot replace the function or fund the function My opinion: this includes rep payee work My opinion: this includes rep payee work

92 92 Case Management Defined Integral components/duplicate services: Integral components/duplicate services: Special Education Special Education Exception made for CM and other services ordered under an IEP or IFSP – case manager must be Medicaid eligible provider. Exception made for CM and other services ordered under an IEP or IFSP – case manager must be Medicaid eligible provider. IFSP requires a service coordinator from the beginning if the infant or toddler has a disability – these can be Medicaid CM/TCM services IFSP requires a service coordinator from the beginning if the infant or toddler has a disability – these can be Medicaid CM/TCM services Cannot cover administrative functions under the Individuals with Disabilities Education Act (IDEA), e.g. calling meetings, reports, writing plan Cannot cover administrative functions under the Individuals with Disabilities Education Act (IDEA), e.g. calling meetings, reports, writing plan

93 93 Documentation: Same old except - Name Name Date Date Name of agency (if relevant) and the person chosen by the individual to provide the CM services. Name of agency (if relevant) and the person chosen by the individual to provide the CM services. Nature, content and units of CM services Nature, content and units of CM services Whether the goals specified in the plan have been achieved Whether the goals specified in the plan have been achieved Whether the individual has declined services in the care plan Whether the individual has declined services in the care plan Timelines for providing services and reassessment Timelines for providing services and reassessment Need for and occurrences of coordination with CM’s of other programs. Need for and occurrences of coordination with CM’s of other programs.

94 94 Payment “a state cannot employ a methodology or rate that results in payment for a bundle of services” “a state cannot employ a methodology or rate that results in payment for a bundle of services” Per diem- no Per diem- no Monthly -no Monthly -no Weekly no Weekly no Why: paying for anticipated not actual services; requires a great deal of federal oversight to make sure the bundled rate is reasonable. Why: paying for anticipated not actual services; requires a great deal of federal oversight to make sure the bundled rate is reasonable. Yes to: 15 minute or less units of service – do understand that many case management activities are very brief. Yes to: 15 minute or less units of service – do understand that many case management activities are very brief. Not clear if a rounding convention must be used or if minutes can be counted or if anything that is 15 minutes or less is ok. Not clear if a rounding convention must be used or if minutes can be counted or if anything that is 15 minutes or less is ok.

95 95 State’s Must amend their state plan Must amend their state plan Must have a specific amendment each target population and sub-population, e.g. kids that are mentally ill Must have a specific amendment each target population and sub-population, e.g. kids that are mentally ill Describe how the state will monitor provider compliance Describe how the state will monitor provider compliance

96 96 IMDs Only SOME of Georgia’s Advice

97 97 IMD Defined Section 1905(i) of the Social Security Act (Act) and 42 Code of Federal Regulations (CFR) Section 1905(i) of the Social Security Act (Act) and 42 Code of Federal Regulations (CFR) § 435.1009 define an IMD as a hospital, nursing facility, or other institution of more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. Psychiatric hospitals (including State-operated and private psychiatric hospitals) and inpatient psychiatric residential treatment facilities with more than 16 beds are IMDs. § 435.1009 define an IMD as a hospital, nursing facility, or other institution of more than 16 beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. Psychiatric hospitals (including State-operated and private psychiatric hospitals) and inpatient psychiatric residential treatment facilities with more than 16 beds are IMDs.

98 98 Medicaid Funding Regulations found at 42 CFR §§ 435.1008 and 441.13 preclude paying FFP (federal financial participation) for any services to residents under the age of 65 who are in an IMD, except for inpatient psychiatric services provided to individuals under the age of 21 and in some instances those under the age of 22. Regulations found at 42 CFR §§ 435.1008 and 441.13 preclude paying FFP (federal financial participation) for any services to residents under the age of 65 who are in an IMD, except for inpatient psychiatric services provided to individuals under the age of 21 and in some instances those under the age of 22.

99 99 Medicaid Funding Medicaid will pay per diems for room and board only for those inpatient psych facilities that are PRTFs. Medicaid will pay per diems for room and board only for those inpatient psych facilities that are PRTFs. Certain staffing and facility requirements Certain staffing and facility requirements Licensing Licensing JCAHO accreditation JCAHO accreditation Rate setting concerns – how developed, is room and board sufficiently covered by other funds. Rate setting concerns – how developed, is room and board sufficiently covered by other funds.

100 100 Medicaid Funding In recent court reviews of the IMD exclusion, they confirmed audit findings that the Psych Under 21 Exclusion is only for inpatient psychiatric services. In recent court reviews of the IMD exclusion, they confirmed audit findings that the Psych Under 21 Exclusion is only for inpatient psychiatric services.

101 101 Virginia/New York Medicaid exception for 21 and under is for inpatient psychiatric services only – not other medical or dental services Medicaid exception for 21 and under is for inpatient psychiatric services only – not other medical or dental services NY Appellate Court seem to suggest leniency in application of this rule by suggesting auditors could have denied all non-psychiatric services provided in the hospital but instead chose to deny only those outside of hospital NY Appellate Court seem to suggest leniency in application of this rule by suggesting auditors could have denied all non-psychiatric services provided in the hospital but instead chose to deny only those outside of hospital

102 102 IMD Audit Virginia The following table shows the type of service, number of claims, and the FFP amounts questioned. Type of Service Number of Claims FFP Physician70,821$1,700,092 Pharmacy27,653979,624 Outpatient Hospital and Clinic 6,682814,633 Other Medical Services 14,760437,592 Inpatient Acute Care 616,591 Total119,922$3,948,532 AUDIT: The Commonwealth’s psychiatric services manual provided clear information that the inpatient psychiatric per diem rates for IMDs were all inclusive and that medical and ancillary services should not be separately claimed by outside medical providers. Commonwealth officials stated that they had no controls or edits in place to prevent these claims from being paid and claimed for FFP.

103 103 Georgia Developed set of guidelines for children’s providers Developed set of guidelines for children’s providers Last edit in July 2007 Last edit in July 2007 Based on their reading of distinct part hospital guidance, nursing facility guidance, the experience of Illinois Based on their reading of distinct part hospital guidance, nursing facility guidance, the experience of Illinois Many and big disclaimers – no guarantee Many and big disclaimers – no guarantee

104 104 Georgia Guidance First major distinction First major distinction Child caring institutions: child care workers; safety and custodial care Child caring institutions: child care workers; safety and custodial care PRTF’s: treatment PRTF’s: treatment Note: Georgia no longer has a residential rehab program but this would be a treatment level of care. Note: Georgia no longer has a residential rehab program but this would be a treatment level of care. Second major distinction: Second major distinction: Inpatient Inpatient Outpatient: public must have barrier free access; service cannot be developed solely for inpatient or campus residents. Must be evidence of this. Outpatient: public must have barrier free access; service cannot be developed solely for inpatient or campus residents. Must be evidence of this.

105 105 Georgia Guidance Self- referrals: not permitted, must given resident full range of choices and suggest that acknowledgement of this be in writing. Self- referrals: not permitted, must given resident full range of choices and suggest that acknowledgement of this be in writing. Shows that this is, in fact, a distinct level of care so that it is not bundled into the IMD Shows that this is, in fact, a distinct level of care so that it is not bundled into the IMD Medicaid requires freedom of choice Medicaid requires freedom of choice

106 106 Georgia Guidance In the audits and guidance re: distinct part most critical pieces for distinguishing rather than grouping beds and programs: In the audits and guidance re: distinct part most critical pieces for distinguishing rather than grouping beds and programs: Physical distinction Physical distinction Fiscal separation Fiscal separation Staffing Staffing Level of care Level of care Ownership: Medicaid recognizes that this is possible but unwieldly Ownership: Medicaid recognizes that this is possible but unwieldly

107 107 Separate and Distinct Physical plant: Physical plant: Entrances, if not Entrances, if not Signage Signage Buildings, if not Buildings, if not Spaces within the building – no crossing through one to the other, no common living areas (no swing beds), signs, entrances, reception, wait rooms –and Spaces within the building – no crossing through one to the other, no common living areas (no swing beds), signs, entrances, reception, wait rooms –and Separate use of common facilities – recreational, dining, and treatment areas (do not use your MRO clinic) Separate use of common facilities – recreational, dining, and treatment areas (do not use your MRO clinic)

108 108 Separate and Distinct Programs: Programs: Best is stand alone 16 beds or less Best is stand alone 16 beds or less Next is separate licenses Next is separate licenses Next is separate levels of care Next is separate levels of care Next but least liked (although in some cases there are distinct clinical approaches) – differences in target populations Next but least liked (although in some cases there are distinct clinical approaches) – differences in target populations Adult vs child OK usually Adult vs child OK usually

109 109 Separate and Distinct Programs: Programs: In CCI – treatment takes place as it would for any member of the community In CCI – treatment takes place as it would for any member of the community No agreements re: MRO outpatient No agreements re: MRO outpatient

110 110 Considerations Rock and hard place: Rock and hard place: Do a gap analysis Do a gap analysis Do you meet these suggestions? Do you meet these suggestions? If not, how big a problem? If not, how big a problem? Work with your state – they are as interested in keeping Medicaid dollars as you are. Work with your state – they are as interested in keeping Medicaid dollars as you are.

111 111 Back to the DRA unfortunately

112 112 DRA Model for Medicaid Certain providers MUST have formal compliance efforts Certain providers MUST have formal compliance efforts Only strongly suggested in past – not required Only strongly suggested in past – not required If you bill or pay out $5mm or more in Medicaid annually – all sources If you bill or pay out $5mm or more in Medicaid annually – all sources Most advice is that you must aggregate across operations Most advice is that you must aggregate across operations January 1, 2007 January 1, 2007 Condition of payment – some consultants advise that this really ramps up risk for providers without compliance programs Condition of payment – some consultants advise that this really ramps up risk for providers without compliance programs States required to audit for compliance States required to audit for compliance

113 113 Three requirements for compliance efforts Employee, contractor and agent education: Employee, contractor and agent education: “detailed” information about: “detailed” information about: the federal False Claims Act, the federal False Claims Act, any state False Claims Acts, any state False Claims Acts, any other administrative remedies for false claims under federal law. any other administrative remedies for false claims under federal law. Advise from CMS disseminate and request compliance – impossible job – estoppel letters as a suggestion Advise from CMS disseminate and request compliance – impossible job – estoppel letters as a suggestion

114 114 Three requirements for compliance efforts: Education Employee, contractor and agent education: Employee, contractor and agent education: About any and all whistleblower provisions, About any and all whistleblower provisions, information on the roles of such laws in preventing and detecting fraud, abuse and waste in the federal healthcare programs. information on the roles of such laws in preventing and detecting fraud, abuse and waste in the federal healthcare programs.

115 115 Three requirements for compliance efforts: Education Similar to the program enacted with Medicare beneficiaries where they were enlisted in the fight against fraud and abuse Similar to the program enacted with Medicare beneficiaries where they were enlisted in the fight against fraud and abuse Federal government trying to create balance of power between itself, provider communities and the state Federal government trying to create balance of power between itself, provider communities and the state

116 116 Three requirements for compliance efforts: P&P □ Develop written policies that include “detailed provisions” regarding the policies and procedures of the entity for detecting and/or preventing fraud, abuse and waste within the organization.

117 117 Three requirements for compliance efforts: P&P □ No listing of P&P requirements BUT… □ OIG has developed a number of compliance guidances based on Federal Sentencing Guidelines □ Third Party Billing Companies: think re: your billing department □ Small and Independent Physician practices □ Hospitals: two out – look at their guidance for multiple site organizations □ Nursing Homes □ Others may be applicable to your operations

118 118 US Sentencing Guidelines Written standards of conduct Written standards of conduct High level individuals responsible to oversee compliance High level individuals responsible to oversee compliance Due care taken not to delegate to those who may engage in illegal activity Due care taken not to delegate to those who may engage in illegal activity Effective training and education Effective training and education Monitoring systems and hotlines Monitoring systems and hotlines Disciplinary systems Disciplinary systems Reasonable steps taken to respond appropriately to detected offenses. Reasonable steps taken to respond appropriately to detected offenses.

119 119 Three requirements for compliance efforts: Employee Handbook Must include if you have one: Must include if you have one: a discussion of the fraud and abuse laws, a discussion of the fraud and abuse laws, the whistleblower provisions and whistleblower rights, and the whistleblower provisions and whistleblower rights, and the organization’s policies and procedures for detecting and/or preventing fraud, abuse and waste in the federal healthcare programs. the organization’s policies and procedures for detecting and/or preventing fraud, abuse and waste in the federal healthcare programs.

120 120 Steps Look at your policies and procedures – do you have the detail needed Look at your policies and procedures – do you have the detail needed Look especially at: Look especially at: Whistleblower protections Whistleblower protections Hotline or other reporting mechanisms Hotline or other reporting mechanisms Code of conduct: Code of conduct: Culture of compliance Culture of compliance Duty to report Duty to report Board involvement – this is not just management’s issue Board involvement – this is not just management’s issue

121 121 Steps Review your state laws Review your state laws OIG site: Useful for describing state false claims law OIG site: Useful for describing state false claims law Are their others Are their others Review your employee handbook Review your employee handbook Meets requirements for DRA? Meets requirements for DRA? Incorporates your P&P, describes the corporate culture, describes state and federal laws re: fraud and abuse Incorporates your P&P, describes the corporate culture, describes state and federal laws re: fraud and abuse

122 122 Steps ID your “agents” ID your “agents” CMS Letter SMDL #06-025, 12/31/06 CMS Letter SMDL #06-025, 12/31/06 “A ‘contractor’ or ‘agent’ includes any contractor, subcontractor, agent, or other person which or who, on behalf of the entity, furnishes, or otherwise authorizes the furnishing of Medicaid health care items or services, performs billing or coding functions, or is involved in monitoring of health care provided by the entity. “ “A ‘contractor’ or ‘agent’ includes any contractor, subcontractor, agent, or other person which or who, on behalf of the entity, furnishes, or otherwise authorizes the furnishing of Medicaid health care items or services, performs billing or coding functions, or is involved in monitoring of health care provided by the entity. “

123 123 Steps Develop or redevelop your reporting mechanisms Develop or redevelop your reporting mechanisms Moving forward with employee and contractor/agent training without a well functioning and well-publicized is very risky Moving forward with employee and contractor/agent training without a well functioning and well-publicized is very risky Making sure employees know that you want to hear and will act on their reports is critical Making sure employees know that you want to hear and will act on their reports is critical Emphatically assure employees that retaliation will not be tolerated Emphatically assure employees that retaliation will not be tolerated

124 124 Steps Make sure the whistleblower protections exist, can be monitored, is built on an accountability model Make sure the whistleblower protections exist, can be monitored, is built on an accountability model Recovery from insufficient protection is extremely difficult Recovery from insufficient protection is extremely difficult Remember you are being required to developed informed staff who understand what a whistleblower is and what potential rewards are for reporting to a government entity Remember you are being required to developed informed staff who understand what a whistleblower is and what potential rewards are for reporting to a government entity

125 125 Steps Work on the corporate culture Work on the corporate culture Don’t fool yourself Don’t fool yourself Ask staff – are you getting your message across? Ask staff – are you getting your message across? Watch for actions that will be viewed as hypocritical by employees Watch for actions that will be viewed as hypocritical by employees Make sure your compliance officer is visible and active. Make sure your compliance officer is visible and active.

126 126 Summary Risk and Behavioral Health

127 127 Risk We continue to be in top 10 segments of health care at risk We continue to be in top 10 segments of health care at risk Small dollars compensated for by big repayments Small dollars compensated for by big repayments Risk is manageable but requires: Risk is manageable but requires: Training, training, training – work together Training, training, training – work together Auditing and monitoring – serial learning but critical that classroom learning not be only training venue Auditing and monitoring – serial learning but critical that classroom learning not be only training venue Clear written guidance from management – both clinical and administrative Clear written guidance from management – both clinical and administrative Clinical supervision Clinical supervision

128 128 Additional Resources Mary Thornton Mary Thornton & Associates, Inc drift1579@aol.com 617-730-5800


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