A broad range of health care providers and consumers asked New York State Governor Kathy Hochul to approve A7889A/ S4486B, a bill that would make audits by the Office of the Medicaid Inspector General (OMIG) more fair, according to the 46 organizations sending the letter to the governor in August.
While many groups signed onto the letter, the triggering storm was the shutdown of Mt. Sinai’s opioid treatment program (OTP) in 2020. But the fact is that the pressure on opioid treatment programs (OTPs) was intense, and let other treatment providers in the behavioral healthcare space recognize that they, too, are at risk for unfair audits.
The associations signing on to the letter are:
- Association for Community Living
- Alliance of Long Island Agencies
- Cerebral Palsy Association of NYS
- Citizen’s Committee for Children
- Coalition of Medication-Assisted Providers and Advocates
- Community Health Care Association of New York State
- Community Pharmacy Association of New York State
- Developmental Disabilities Alliance of WNY
- Families Together of NYS
- Federation of Mental Health Services
- Home Care Association of New York State
- Interagency Council of Developmental Disabilities
- Legal Action Center
- Medical Society of New York State
- Mental Health Association in NYS
- National Alliance for Mental Illness – NYS
- New York Alliance for Inclusion and Innovation
- New York Association of Emerging & Multicultural Providers, Inc.
- New York Association of Psychiatric Rehabilitation Services
- New York State Academy of Family Physicians
- New York State Association of Alcoholism and Substance Use Providers
- The New York State Association of Health Care Providers, Inc.
- New York State Care Management Coalition
- New York Chapter American College of Physicians Services, Inc.
- New York Providers Alliance
- New York State American Academy of Pediatrics, Chapters 1, 2 and 3
- New York State Coalition for Children’s Behavioral Health
- New York State Council for Community Behavioral Healthcare
- New York State Psychiatric Association
- New York State Society of Anesthesiologists
- New York State Society of Dermatology & Dermatological Surgery
- New York State Society of Plastic Surgeons
- NYS Ophthalmological Society
- NYS Osteopathic Medical Society
- NYS Society of Otolaryngology-Head and Neck Surgery
- Pharmacists Society of the State of New York
- PEGI Solutions
- Primary Care Development Corporation
- Supportive Housing Network of New York
- The ARC of New York
- The Addiction Treatment Providers of New York
- The Coalition for Behavioral Health
- The Drug Policy Alliance
- The New York State Neurological Society
- The New York State Neurosurgical Society
- VOCAL NY
“For too long, audits conducted by the OMIG have included the use of tactics that fail to take a transparent, or fair and balanced approach to the audit and recovery process. As a result, providers who have operated in good faith and delivered high quality care to clients, but who may have made human errors in the process, have been punished as if they had intentionally and maliciously defrauded the state,” according to the letter to Governor Hochul.
Provider protections in this legislation include:
- Requiring that recovery of an overpayment must not take place until at least 60 days after issuance of a final audit report and OMIG must provide a minimum of 10 days advance written notice to the affected provider;
- Prohibiting repeating a review or audit within the last three years of the same contracts, cost reports, claims, bills, or expenditures unless OMIG has new information, good cause to believe the previous audit was erroneous, or a significantly different scope of investigation;
- Requiring OMIG to apply all laws, regulations, policies, guidelines, standards, and interpretations that were in place at the time the claim or conduct occurred;
- Prohibiting OMIG from making a recovery from a provider based solely on an administrative or technical defect, except where OMIG has informed the provider of the error and given 30 days to correct it. If not corrected OMIG may take a recovery. Further, where a claim for a service provided over 2 years prior to the audit, the provider may resubmit the claim or accept the disallowance;
- Requiring OMIG to provide an exit conference or detailed written explanation of any draft audit findings to the provider;
- Requiring that OMIG may only use statistically valid extrapolation methods for audits where extrapolation is permitted;
- Requiring OMIG to notify a provider if their compliance program is not satisfactory, and to allow the provider 60 days to submit a proposal for a satisfactory program; and
- Requiring OMIG to consult with the Commissioner of the State Department of Health (DOH) when preparing and filing an annual report on the impacts that all civil and administrative enforcement actions taken in the prior year had or will have on the quality and availability of medical services.
“The mission of the OMIG is to identify fraud and waste in the Medicaid system. However, the authorizing legislation for the OMIG lacked provisions necessary to ensure fairness and procedural clarity,” the letter to Governor Hochul noted. “Over the years, OMIG audits have resulted in uneven impact upon provider agencies when technical or human errors occur, when contradictory state guidance creates unavoidable audit disallowances and slow or out of date state information and technology results in claims processing failures. This bill would address these issues and offer protections to bring greater transparency to the auditing process and ensure fairness for providers.”
But the issue is the extrapolation methodology.
This is the poster child: the late Bob Newman’s legacy OTP – Mt. Sinai’s at Beth Israel. That compliance audit extrapolation methodology resulted in the imposition of over $7 million in disallowances for only 12 audit findings worth a grand total of $407.90 for that OPT, shutting it down. This was an “over-zealous pursuit of recoveries from providers for technical errors led to program closure, the disruption of patient care and reduced access to critical health care services, in 2020, without regard to the impact of the COVID-19 pandemic,” according to the letter to Governor Hochul.
“OMIG’s unfair audits have a chilling effect on the willingness of reputable providers to serve Medicaid patients. OMIG’s actions increase healthcare disparities among New York’s BIPOC and rural communities,” according to the letter.
The letter was spearheaded by Allegra Schorr, President of the Coalition of Medication-Assisted Treatment Providers and Advocates, and Lauri Cole, MSW, Executive Director of the New York State Council for Community Behavioral Healthcare.
“Opioid Treatment Programs are on the frontlines, providing lifesaving treatment to more than 43,000 New Yorkers, battling opioid addiction and the overdose epidemic.,” said Schorr. “But our ability to do this vital work is in jeopardy. One example of OMIG’s draconian audit extrapolation methodology resulted in the imposition of over $7 million in disallowances for only 12 audit findings worth a grand total of $407.90. OMIG’s over-zealous pursuit of recoveries from providers for technical errors led to program closure, the disruption of patient care and reduced access to critical health care services, in 2020, without regard to the impact of the COVID-19 pandemic. We urge Governor Hochul to sign this bill into law to provide a long overdue reevaluation of OMIG’s audit process and statutory protections.”