1. 1 Presented to Texas Dentists for Medicaid Reform February 27, 2015 By Jason Ray Riggs & Ray jray@r-alaw.com Texas Medicaid in Transition

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4. Penalties for noncompliance with the law and regulations can come from several directions Compliance costs > standard insurance Audit lookback periods…∞? 4

5. Penalties for noncompliance with the law and regulations can come from several directions OIG, HHSC 5

6. Penalties for noncompliance with the law and regulations can come from several directions OIG, HHSC: Administrative action 6

7. Penalties for noncompliance with the law and regulations can come from several directions OIG, HHSC: Administrative action Attorney General 7

8. Penalties for noncompliance with the law and regulations can come from several directions OIG, HHSC: Administrative action Attorney General: Civil Medicaid Fraud Division- Civil (administrative) Medicaid Fraud Control Unit- Criminal only MCOs- Dentaquest and MCNA State Board of Dental Examiners: Administrative 8

9. 9 Get insurance for administrative actions as well as civil actions. You’ll want it for potential Dental Board actions, you’ll need it for the OIG.

10. Informal settlement conferences $5K- $15K, depending on the issues Pre-litigation discovery, motions and negotiations $50K- $125K Mediation $5K- $10K Trial / Administrative hearings $5K-10K per day, plus cost of experts Total costs (average)= $80K- 200K Total time (average)= 18 months (not counting appeals) 10

11. Penalties for noncompliance with the law and regulations can come from several directions Compliance costs > standard insurance 11

12. Compliance costs: Pay me now, or pay me later Straight answers can be hard to come by… On cross-examination, Ms. Machicek agreed that the Manual provision that auxiliary personnel including assistants may perform therapy if “under the supervision of a physician or a licensed independently practicing therapist,” does not specifically state that the supervising therapist must be enrolled in Medicare. She further agreed that the Manual provides a phone number at TMHP for providers with questions about the regulations, particularly regarding billings, to call for information. However, Ms. Machicek stated that providers should not rely on the information given them by the TMHP employees because the educational level of those employees was not specific to allow them to interpret Medicaid policy. 12

13. Are you a dentist or a businessperson? Dentists’ are governed by TSBDE rules Business issues: Federal wage and labor laws (FLSA) State and federal employment and discrimination issues Worker’s comp Taxes And for health care providers: HIPAA & HiTech Data security for PHI Stark and Stark II (referrals) Federal Anti-kickback Inconsistent marketing and inducement standards 13

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15. “I did everything right, but the OIG/AG/Feds are asking for 100 patient records. What should I do?” Contact an attorney to: Shield you from unnecessary requests / bullying, and diplomatically respond 15

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17. “I did everything right, but the OIG/AG/Feds are asking for 100 patient records. What should I do?” Contact an attorney to: Shield you from unnecessary requests / bullying Prevent stupid mistakes (such as staff agreeing to be interviewed without an attorney present) 17

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19. “I did everything right, but the OIG/AG/Feds are asking for 100 patient records. What should I do?” Contact an attorney to: Shield you from unnecessary requests / bullying Prevent stupid mistakes (such as staff agreeing to be interviewed without an attorney present) Get in front of any known problems / contain errors 19

20. Cost of records requests Direct: copying, manpower, distraction Indirect: Employee morale Patient/client inquiries Educating your interrogator 20

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22. Educating the OIG on your style of practice Approach to patient care varies widely from provider to provider, but the OIG investigators / attorneys are generally ignorant to the equally valid justifications from providers. 22

23. Insignificant / non-harmful mistakes in billing can be self reported: http://oig.hhsc.state.tx.us/oigportal/portals/0/Publicatio ns/OIG%20Self- Disclosure%20Protocol%202013%20revisions.pdf 23

24. 24 Analytics : the discovery and communication of meaningful patterns in data. Especially valuable in areas rich with recorded information, analytics relies on the simultaneous application of statistics, computer programming and operations research to quantify performance. Analytics often favors data visualization to communicate insight.

25. 25 Utilized to detect billing anomalies (Reported as the basis for firing Xerox in June 2, 2014 HHSC letter): Ongoing prior authorization errors -- Beginning in June of 2013, HHSC-OIG regularly turned LYNXeon analysis on orthodontic and therapy prior authorizations, providing the results of that analysis to the Texas Attorney General's Civil Medicaid Fraud Division. Although not a policy reform, the analysis identified inescapable aberrations in Xerox's prior authorization process which led to Texas HHSC firing Xerox as its Medicaid fiscal agent and filing a lawsuit against Xerox which alleges fraud. Although the Attorney General's practice is not to allege a specific damage amount in pleadings, the actual damages and penalties associated with this lawsuit are well into the billions of dollars.

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27. Changes in leadership at HHSC-OIG have signaled a change in the agency’s “muscular” stance regarding Medicaid providers. Fewer payment holds (almost none for recordkeeping or program violations) Some indication that egregious HHSC/OIG actions in the past may be reconsidered by the new Inspector General 27

28. 28 Jason Ray Riggs & Ray Austin, Texas jray@r-alaw.com