This Legal Alert is to remind those providers required to have a compliance program that the annual required certification to the New York State Office of the Medicaid Inspector General (OMIG) must be completed by December 31, 2010. Note the form was updated December 1, 2010, so certification for this year had to occur post-December 1, 2010. The 2010 certification differs greatly from the 2009 form, including language related to the OMIG's recent emphasis on the effectiveness of a compliance program. The certification contains the following language, "Provider certifies that the provider and its affiliates have adopted, implemented and maintain an effective compliance program that meets the requirements of NYS Social Services Law §363-d and 18 NYCRR Part 521. A provider who does not have an effective compliance program should not complete this form."
A provider that determines that its compliance program is not effective must send OMIG an e-mail stating that the provider is unable to certify and describing the reasons why the compliance program is not effective, the steps the provider is taking to make its compliance program effective, and when the provider expects that it will be able to certify that its compliance program is effective. OMIG is authorized to impose sanctions or penalties, including, but not limited to, the revocation of the provider's agreement to participate in the Medicaid program, against providers who fail to develop, adopt and implement an effective compliance program. OMIG has stated in various conferences that it will be focusing on whether a compliance program is truly effective. Recently, OMIG released guidance stating that it believes that it is a best practice for Medicaid providers to perform an annual self-assessment of the effectiveness of their compliance programs. OMIG stated, "Compliance officers, chief executives and governing boards should use self-assessment, along with other measurements, to objectively assess the strengths and weaknesses of their compliance programs. A Medicaid provider's self-assessment will be one measure available to OMIG when reviewing the effectiveness of a provider's compliance program. OMIG may ask Medicaid providers for evidence of their self-assessment as part of routine audits, routine investigations or routine Compliance Program effectiveness reviews." OMIG released a Provider Self-Assessment Tool to assist providers in their reviews.
Note that some providers are required to file two certifications – one related to their compliance program under New York State law and one certifying compliance under the Federal Deficit Reduction Act (DRA). The DRA instituted a requirement for health care entities receiving or making $5 million or more in Medicaid payments during a federal fiscal year to establish written policies and procedures informing their employees, contractors and agents about federal and state false claim acts and whistleblower protections. These requirements are separate from, but related to, New York's mandatory provider compliance law.
Hiscock & Barclay's Health Care and Human Services Practice Area has substantial experience in assisting providers in the development and implementation of compliance programs, reviewing plans and measuring them for completeness and effectiveness, and in the training of Boards of Directors and staff of providers. Our attorneys also have extensive experience in defending Medicaid and Medicare provider audits, investigations and sanctions and in the defense of matters brought by the State Attorney General. Please contact Melissa Zambri (518-429-4229), the current Chair of the New York State Bar Association Health Law Section's Committee on Fraud, Abuse and Compliance, or any other member of the Practice Area should you have any questions regarding the issues raised in this Alert.