Medicaid providers are subject to two sets of compliance certification requirements, a federal requirement under the Deficit Reduction Act of 2005 (DRA) and a New York State requirement under Social Services Law § 363-d(3). Under both laws, providers must certify compliance for the year 2011 by December 31, 2011, which is accomplished by completing the forms located on the website of the New York State Office of the Medicaid Inspector General (OMIG). OMIG, which is tasked with administering both the federal and state compliance certification process in New York, has indicated that certification forms will not be posted on its website until December 1, 2011. Therefore, providers should be aware that any certification completed before December 1, 2011 will not be effective for the 2011 certification year.
The DRA requires health care entities which receive or make $5 million or more in Medicaid payments during the federal fiscal year (October 1 to September 30) to certify annually that they are in compliance with the federal Deficit Reduction Act of 2005 ("DRA"). The DRA requires providers to establish written policies and procedures designed to inform employees, contractors and agents about federal and state false claims acts and whistleblower protections. Each year, the provider must certify that it maintains written policies, that its employee handbook includes the materials required by the DRA, that the materials have been properly adopted by the entity and that the materials have been disseminated to employees, contractors and agents. Providers can access the DRA certification form on the OMIG website through the following link: https://www.omig.ny.gov/data/content/view/269/53/.
Separate from the DRA certification requirement, NYS Social Services Law § 363-d(3) requires the following providers to certify that they have an effective compliance plan:
- Those providers subject to Article 28 and Article 36 of the Public Health Law (e.g., hospitals, clinics);
- Those providers subject to Articles 16 and 31 of the Mental Hygiene Law (e.g., OMH and OPWDD providers);
- Those that claim, order or receive payment for services or supplies directly or indirectly, or submit claims totaling at least $500,000 a year.
The eight elements of an effective compliance plan are set forth in Social Services Law § 363-d(2) and include, among other things, the following requirements: 1) compliance policies and procedures shall be in writing; 2) the provider shall designate an employee to be its compliance officer; 3) the provider shall train all employees, executives and board members regarding its compliance program; 4) the provider shall institute a system for responding to and investigating reports of non-compliance; and 5) the provider shall institute a policy of non-intimidation and non-retaliation for good faith participation in the compliance program. Providers can access the SSL § 363-d(3) certification form on the OMIG website through the following link: https://www.omig.ny.gov/data/content/view/270/53/.
In completing the DRA and § 363-d(3) certification forms, providers should be aware of the following requirements and gather needed information in advance of completing the forms:
- Certification must be made for each Federal Employer Identification Number (FEIN) that bills or receives a Medicaid payment.
- The certifying official should be someone at the senior management or Board level. OMIG has stated that, to avoid conflicts of interest, the certifying official should not be either the compliance officer, chief financial officer or legal counsel for the agency.
- The Social Services Law § 363-d(3) certification now requires providers to submit basic contact information regarding the service bureaus it may utilize, which are defined in 18 NYCRR § 504.9 as persons submitting claims, verifying client eligibility, or obtaining service authorizations for or on behalf of providers. The form allows entry of this information for multiple service bureaus so providers should ensure they have this information prior to beginning the certification form.
- New this year, the Social Services Law § 363-d(3) certification form now contains a section to be completed by those providers who cannot certify compliance.
Having an effective compliance program is extremely important. OMIG has been reviewing the effectiveness of provider program and will continue to do so in the coming year. Should you need assistance with the certification process or a review of the effectiveness of any current program, please contact Melissa M. Zambri, Marie A. Butchello or any member of our Health Care & Human Services Practice Area.