Relates to procedures, practices and standards for actions by the office of medicaid inspector general and social services districts.

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S3184A-2011 Actions

• Sep 23, 2011: VETOED MEMO.72
• Sep 12, 2011: DELIVERED TO GOVERNOR
• Jun 23, 2011: returned to senate
• Jun 23, 2011: passed assembly
• Jun 23, 2011: ordered to third reading rules cal.602
• Jun 23, 2011: substituted for a5686a
• Jun 20, 2011: referred to ways and means
• Jun 20, 2011: DELIVERED TO ASSEMBLY
• Jun 20, 2011: PASSED SENATE
• Jun 20, 2011: ORDERED TO THIRD READING CAL.1381
• Jun 20, 2011: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• Jun 17, 2011: PRINT NUMBER 3184A
• Jun 17, 2011: AMEND (T) AND RECOMMIT TO HEALTH
• Feb 10, 2011: REFERRED TO HEALTH

S3184A-2011 Meetings

Rules: Jun 24, 2011

S3184A-2011 Votes

S3184A-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   3184--A

                         2011-2012 Regular Sessions

                              I N  SENATE

                              February 10, 2011
                                 ___________

  Introduced  by  Sens. LITTLE, LANZA, ADDABBO, BONACIC, CARLUCCI, DeFRAN-
    CISCO, GOLDEN, KLEIN, MARTINS, MAZIARZ, McDONALD, SAVINO -- read twice
    and ordered printed, and when printed to be committed to the Committee
    on Health -- committee discharged, bill amended, ordered reprinted  as
    amended and recommitted to said committee

  AN  ACT  to  amend the public health law and the social services law, in
    relation to procedures, practices and standards  for  actions  by  the
    office of medicaid inspector general and social services districts

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Section 30 of the public health law, as  added  by  chapter
  442 of the laws of 2006, is amended to read as follows:

    S 30. Legislative intent. This title establishes an independent office
  of Medicaid inspector general within the department to consolidate staff
  and  other  Medicaid  fraud detection, prevention and recovery functions
  from the relevant governmental entities into a single office, and grants
  such office new powers and responsibilities.  As  such,  this  title  is
  intended  to  create a more efficient and accountable structure, dramat-
  ically reorganize and streamline the state's process  of  detecting  and
  combating  Medicaid  fraud  and  abuse  and  maximize  the recoupment of
  improper Medicaid payments.
    THE LEGISLATURE RECOGNIZES THE NEED TO  BALANCE  THE  ABILITY  OF  THE
  STATE TO ENSURE THE INTEGRITY OF THE MEDICAL ASSISTANCE PROGRAM WITH THE
  NEED  TO AFFORD DUE PROCESS TO PROVIDERS AND RECIPIENTS WHO ARE INVESTI-
  GATED, AUDITED OR SUBJECT TO OTHER ACTIONS, IN ORDER TO ENSURE THAT SUCH
  ACTIONS ARE CONDUCTED IN A FAIR AND CONSISTENT MANNER.  THE  LEGISLATURE
  ALSO  RECOGNIZES  THE NEED FOR ESTABLISHED STATUTORY STANDARDS REGARDING
  THE CONDUCT OF INVESTIGATIONS, AUDITS AND RECOVERY OF PAYMENTS AND OTHER
  ACTIONS.
    S 2. Section 30-a of the public health law is amended by  adding  four
  new subdivisions 4, 5, 6 and 7 to read as follows:


   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD07895-09-1

 S. 3184--A                          2

    4. "PROVIDER" MEANS ANY PERSON OR ENTITY ENROLLED AS A PROVIDER IN THE
  MEDICAL ASSISTANCE PROGRAM.
    5.  "RECIPIENT"  MEANS  AN  INDIVIDUAL  WHO IS ENROLLED IN THE MEDICAL
  ASSISTANCE PROGRAM, INCLUDING AN INDIVIDUAL WHO WAS PREVIOUSLY A RECIPI-
  ENT AND, IN AN APPROPRIATE CASE, AN INDIVIDUAL WHO IS LEGALLY  RESPONSI-
  BLE FOR THE RECIPIENT.
    6.  "MEDICAL  ASSISTANCE" AND "MEDICAID" MEANS TITLE ELEVEN OF ARTICLE
  FIVE OF THE SOCIAL SERVICES LAW AND THE PROGRAM THEREUNDER.
    7. "DRAFT AUDIT REPORT", "INITIAL AUDIT REPORT", "PROPOSED  NOTICE  OF
  AGENCY ACTION" AND "FINAL NOTICE OF AGENCY ACTION" MEANS THOSE DOCUMENTS
  PREPARED  AND ISSUED BY THE INSPECTOR UNDER THIS TITLE AND CORRESPONDING
  REGULATIONS.
    S 3. Subdivision 20 of section 32 of the public health law,  as  added
  by chapter 442 of the laws of 2006, is amended to read as follows:

    20.  to, consistent with provisions of this title AND OTHER APPLICABLE
  FEDERAL AND STATE LAWS, REGULATIONS, POLICIES, GUIDELINES AND STANDARDS,
  implement and amend, as needed, rules and regulations  relating  to  the
  prevention,  detection,  investigation  and  referral of fraud and abuse
  within the medical assistance program and  the  recovery  of  improperly
  expended medical assistance program funds;
    S  4.  The  public health law is amended by adding two new sections 37
  and 38 to read as follows:

    S 37. PROCEDURES, PRACTICES AND STANDARDS. 1. SUBJECT TO  FEDERAL  LAW
  OR REGULATION, RECOVERY OF AN OVERPAYMENT RESULTING FROM THE ISSUANCE OF
  A  FINAL  AUDIT  REPORT  OR  FINAL NOTICE OF AGENCY ACTION RELATING TO A
  MONETARY PENALTY BY THE INSPECTOR SHALL COMMENCE  NOT  LESS  THAN  SIXTY
  DAYS  AFTER  THE  ISSUANCE  OF THE FINAL AUDIT REPORT OR FINAL NOTICE OF
  AGENCY ACTION.  THE INSPECTOR SHALL NOT COMMENCE ANY RECOVERY UNDER THIS
  SUBDIVISION WITHOUT PROVIDING A MINIMUM  OF  TEN  DAYS  ADVANCE  WRITTEN
  NOTICE TO THE PROVIDER.
    2.  CONTRACTS,  COST REPORTS, CLAIMS, BILLS OR EXPENDITURES OF MEDICAL
  ASSISTANCE PROGRAM FUNDS THAT WERE THE  SUBJECT  MATTER  OF  A  PREVIOUS
  AUDIT  OR REVIEW BY OR ON BEHALF OF THE INSPECTOR, WITHIN THE LAST THREE
  YEARS, SHALL NOT BE SUBJECT TO REVIEW OR AUDIT EXCEPT ON  THE  BASIS  OF
  NEW  INFORMATION,  FOR GOOD CAUSE TO BELIEVE THAT THE PREVIOUS REVIEW OR
  AUDIT WAS ERRONEOUS, OR WHERE THE SCOPE OF  THE  INSPECTOR'S  REVIEW  OR
  AUDIT  IS  SIGNIFICANTLY DIFFERENT FROM THE SCOPE OF THE PREVIOUS REVIEW
  OR AUDIT, AND SHALL NOT BE SUBJECT TO A NEW AUDIT.
    3. IN CONDUCTING AUDITS, THE INSPECTOR SHALL  APPLY  THE  LAWS,  REGU-
  LATIONS,  POLICIES,  GUIDELINES,  STANDARDS  AND  INTERPRETATIONS OF THE
  APPROPRIATE AGENCY THAT WERE IN PLACE AT  THE  TIME  THE  SUBJECT  CLAIM
  AROSE  OR  OTHER  CONDUCT  TOOK PLACE.   DISALLOWANCES MAY BE IMPOSED OR
  OTHER ACTION TAKEN ONLY FOR NON-COMPLIANCE WITH THOSE LAWS, REGULATIONS,
  POLICIES, GUIDELINES OR STANDARDS. FOR PURPOSES OF THIS SUBDIVISION, ANY
  CHANGE IN SUCH LAWS, REGULATIONS,  POLICIES,  GUIDELINES,  STANDARDS  OR
  INTERPRETATIONS  SHALL ONLY BE APPLIED PROSPECTIVELY AND UPON REASONABLE
  NOTICE.
    4. (A) THE INSPECTOR SHALL MAKE NO RECOVERY FROM A PROVIDER, BASED  ON
  AN ADMINISTRATIVE OR TECHNICAL DEFECT IN PROCEDURE OR DOCUMENTATION MADE
  WITHOUT  INTENT  TO  FALSIFY  OR  DEFRAUD, IN CONNECTION WITH CLAIMS FOR
  PAYMENT FOR MEDICALLY NECESSARY CARE, SERVICES AND SUPPLIES OR THE  COST
  THEREOF  AS SPECIFIED IN SUBDIVISION TWO OF SECTION THREE HUNDRED SIXTY-
  FIVE-A OF THE SOCIAL SERVICES LAW PROVIDED IN OTHER  RESPECTS  APPROPRI-
  ATELY  TO  A  BENEFICIARY  OF  THE MEDICAL ASSISTANCE PROGRAM, EXCEPT AS
  PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION.

 S. 3184--A                          3

    (B) WHERE THE BASIS FOR RECOVERY IS  AN  ADMINISTRATIVE  OR  TECHNICAL
  DEFECT  IN  PROCEDURE  OR  DOCUMENTATION  WITHOUT  INTENT  TO FALSIFY OR
  DEFRAUD, THE INSPECTOR SHALL  AFFORD  THE  PROVIDER  AN  OPPORTUNITY  TO
  CORRECT  THE  DEFECT AND RESUBMIT THE CLAIM WITHIN THIRTY DAYS OF NOTICE
  OF THE DEFECT.
    5.  (A)  THE  INSPECTOR SHALL FURNISH TO THE PROVIDER AT AN AUDIT EXIT
  CONFERENCE OR IN ANY DRAFT AUDIT FINDINGS ISSUED OR TO BE ISSUED TO  THE
  PROVIDER,  A  DETAILED  WRITTEN  EXPLANATION OF THE EXTRAPOLATION METHOD
  EMPLOYED, INCLUDING THE SIZE OF THE SAMPLE,  THE  SAMPLING  METHODOLOGY,
  THE  DEFINED  UNIVERSE  OF  CLAIMS,  THE SPECIFIC CLAIMS INCLUDED IN THE
  SAMPLE, THE RESULTS OF THE SAMPLE, THE ASSUMPTIONS MADE ABOUT THE  ACCU-
  RACY  AND  RELIABILITY  OF THE SAMPLE AND THE LEVEL OF CONFIDENCE IN THE
  SAMPLE RESULTS, AND THE STEPS  UNDERTAKEN  AND  STATISTICS  UTILIZED  TO
  CALCULATE THE ALLEGED OVERPAYMENT AND ANY APPLICABLE OFFSET BASED ON THE
  SAMPLE  RESULTS. THIS WRITTEN INFORMATION SHALL INCLUDE A DESCRIPTION OF
  THE SAMPLING AND EXTRAPOLATION METHODOLOGY.
    (B) THE SAMPLING AND EXTRAPOLATION METHODOLOGIES USED BY THE INSPECTOR
  SHALL BE STATISTICALLY REASONABLY VALID FOR THE INTENDED USE  AND  SHALL
  BE ESTABLISHED IN REGULATIONS OF THE INSPECTOR.
    S  38.  PROCEDURES,  PRACTICES  AND STANDARDS FOR RECIPIENTS.  1. THIS
  SECTION APPLIES TO ANY ADJUSTMENT OR RECOVERY OF  A  MEDICAL  ASSISTANCE
  PAYMENT  FROM  A  RECIPIENT,  AND  ANY INVESTIGATION OR OTHER PROCEEDING
  RELATING THERETO.
    2. AT LEAST FIVE BUSINESS DAYS PRIOR TO COMMENCEMENT OF ANY  INTERVIEW
  WITH  A  RECIPIENT  AS  PART OF AN INVESTIGATION, THE INSPECTOR OR OTHER
  INVESTIGATING ENTITY SHALL PROVIDE THE RECIPIENT WITH WRITTEN NOTICE  OF
  THE  INVESTIGATION.  THE NOTICE OF THE INVESTIGATION SHALL SET FORTH THE
  BASIS FOR THE INVESTIGATION; THE POTENTIAL  FOR  REFERRAL  FOR  CRIMINAL
  INVESTIGATION;  THE  INDIVIDUAL'S RIGHT TO BE ACCOMPANIED BY A RELATIVE,
  FRIEND, ADVOCATE OR ATTORNEY DURING QUESTIONING; CONTACT INFORMATION FOR
  LOCAL LEGAL SERVICES OFFICES; THE INDIVIDUAL'S RIGHT TO  DECLINE  TO  BE
  INTERVIEWED OR PARTICIPATE IN AN INTERVIEW BUT TERMINATE THE QUESTIONING
  AT ANY TIME WITHOUT LOSS OF BENEFITS; AND THE RIGHT TO A FAIR HEARING IN
  THE EVENT THAT THE INVESTIGATION RESULTS IN A DETERMINATION OF INCORRECT
  PAYMENT.
    3.  FOLLOWING COMPLETION OF THE INVESTIGATION AND AT LEAST THIRTY DAYS
  PRIOR TO COMMENCING A RECOVERY OR ADJUSTMENT ACTION OR REQUESTING VOLUN-
  TARY REPAYMENT,  THE  INSPECTOR  OR  OTHER  INVESTIGATING  ENTITY  SHALL
  PROVIDE THE RECIPIENT WITH WRITTEN NOTICE OF THE DETERMINATION OF INCOR-
  RECT  PAYMENT  TO  BE RECOVERED OR ADJUSTED. THE NOTICE OF DETERMINATION
  SHALL IDENTIFY THE EVIDENCE RELIED UPON, SET FORTH THE  FACTUAL  CONCLU-
  SIONS OF THE INVESTIGATION, AND EXPLAIN THE RECIPIENT'S RIGHT TO REQUEST
  A FAIR HEARING IN ORDER TO CONTEST THE OUTCOME OF THE INVESTIGATION. THE
  EXPLANATION OF THE RIGHT TO A FAIR HEARING SHALL CONFORM TO THE REQUIRE-
  MENTS OF SUBDIVISION TWELVE OF SECTION TWENTY-TWO OF THE SOCIAL SERVICES
  LAW AND REGULATIONS THEREUNDER.
    4.  A FAIR HEARING UNDER SECTION TWENTY-TWO OF THE SOCIAL SERVICES LAW
  SHALL BE AVAILABLE TO ANY RECIPIENT WHO RECEIVES A  NOTICE  OF  DETERMI-
  NATION  UNDER  SUBDIVISION  THREE OF THIS SECTION, REGARDLESS OF WHETHER
  THE RECIPIENT IS STILL ENROLLED IN THE MEDICAL ASSISTANCE PROGRAM.
    S 5. Paragraph (b) of subdivision 3 of section  363-d  of  the  social
  services  law,  as  amended by section 44 of part C of chapter 58 of the
  laws of 2007, is amended and a new subdivision 5 is  added  to  read  as
  follows:

    (b)  In  the  event  that  the  commissioner of health or the Medicaid
  inspector general finds that the provider does not have  a  satisfactory

 S. 3184--A                          4

  program  [within ninety days after the effective date of the regulations
  issued pursuant to subdivision four of this  section,  the]  UNDER  THIS
  SECTION,  THE COMMISSIONER OR MEDICAID INSPECTOR GENERAL SHALL SO NOTIFY
  THE PROVIDER, INCLUDING SPECIFICATION OF BASIS OF THE FINDING SUFFICIENT
  TO  ENABLE  THE PROVIDER TO ADOPT A SATISFACTORY COMPLIANCE PROGRAM. THE
  provider SHALL SUBMIT TO THE COMMISSIONER OR MEDICAID INSPECTOR  GENERAL
  A  PROPOSED  SATISFACTORY  COMPLIANCE  PROGRAM  WITHIN SIXTY DAYS OF THE
  NOTICE AND SHALL ADOPT THE PROGRAM AS EXPEDITIOUSLY AS POSSIBLE. IF  THE
  PROVIDER  DOES NOT PROPOSE AND ADOPT A SATISFACTORY PROGRAM IN SUCH TIME
  PERIOD, 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.
    5. ANY REGULATION, DETERMINATION OR FINDING OF THE COMMISSIONER OR THE
  MEDICAID INSPECTOR GENERAL RELATING TO A COMPLIANCE PROGRAM  UNDER  THIS
  SECTION  SHALL  BE  SUBJECT  TO AND CONSISTENT WITH SUBDIVISION THREE OF
  THIS SECTION.
    S 6. This act shall take effect October 1, 2011 and shall apply to any
  matter commenced or pending on or after such date.  However with respect
  to any matter pending on or after such date, this act shall not  invali-
  date  any  actions  or  steps  taken or commenced prior to such date and
  shall only apply to actions or steps commenced on or after such date.