senate Bill S3184A

Vetoed

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Vetoed by Governor
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actions

  • 10 / Feb / 2011
    • REFERRED TO HEALTH
  • 17 / Jun / 2011
    • AMEND (T) AND RECOMMIT TO HEALTH
  • 17 / Jun / 2011
    • PRINT NUMBER 3184A
  • 20 / Jun / 2011
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 20 / Jun / 2011
    • ORDERED TO THIRD READING CAL.1381
  • 20 / Jun / 2011
    • PASSED SENATE
  • 20 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 20 / Jun / 2011
    • REFERRED TO WAYS AND MEANS
  • 23 / Jun / 2011
    • SUBSTITUTED FOR A5686A
  • 23 / Jun / 2011
    • ORDERED TO THIRD READING RULES CAL.602
  • 23 / Jun / 2011
    • PASSED ASSEMBLY
  • 23 / Jun / 2011
    • RETURNED TO SENATE
  • 12 / Sep / 2011
    • DELIVERED TO GOVERNOR
  • 23 / Sep / 2011
    • VETOED MEMO.72

Summary

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

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Bill Details

See Assembly Version of this Bill:
A5686A
Versions:
S3184
S3184A
Legislative Cycle:
2011-2012
Law Section:
Public Health Law
Laws Affected:
Amd §§30, 30-a & 32, add §37 & 38, Pub Health L; amd §363-d, Soc Serv L
Versions Introduced in 2009-2010 Legislative Cycle:
S7821B, A10630C
view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3184--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            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.

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