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September 21, 2018

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NYSBA Health Law Section Annual Meeting Report

January 29, 2019

     This year, our attorneys once again attended the annual meeting of the NYSBA Health Law Section in New York City. Dennis Rosen, the New York State Medicaid Inspector General, and Brendan Stewart, assistant U.S. Attorney and the chief of the criminal health care fraud unit for the Eastern District of New York, presented on the recent efforts and future plans of their agencies to identify and reduce health care fraud.

 

      Unlike the U.S. Attorney’s office, New York’s OMIG is an oversight agency, not a prosecutorial agency, and the difference in approaches by these two agencies to fraud and abuse were on full display. OMIG takes a broad view of compliance and abuse and emphasizes monetary savings and recoupments for the state’s Medicaid program, provider education and compliance, and identifying and addressing broad trends in New York’s health care system. The U.S. Attorney’s office, on the other hand, is focused on increasing the efficiency and effectiveness of its prosecution of those who engage in alleged health care fraud. There were, however, unifying themes reflected in both agencies’ presentations. Both agencies are increasingly using data and analytics to identify potential fraud, are cooperating with other law enforcement and oversight agencies to identify and address health care fraud, and are interested in focusing on providers (whether by type or geographic location) who have been identified as compliance or fraud and abuse risks.

 

Several items of interest from OMIG’s presentation:

  • OMIG appears to be increasingly frustrated by providers’ failure to complete the Mandatory Compliance Program Certification timely each year, and may explore its ability to sanction providers who fail to comply with this annual requirement in the near future. In the future, expect OMIG to argue that it can recoup any Medicaid payments made to a provider during any time when it is out of compliance with this requirement.

  • OMIG is concerned with potential widespread abuse in the home health care area. The federal government has been prodding state Medicaid inspectors general to focus on this issue. Expect OMIG to increase audits in this area. OMIG will also be cooperating with the New York State Department of Labor to ensure that home health employees are receiving all required wage and fringe benefits and that Medicaid supplemental payments are used appropriately for this purpose.

  • OMIG has established a number of special project teams and most of the teams identified in OMIG’s report will be focused on Managed Care Organizations (“MCOs”) with a special focus on the quarterly provider investigative reports that MCOs are required to submit. OMIG will be auditing whether MCO and network providers are reporting data accurately.

     The U.S. Attorney’s presentation highlighted the agency’s increased and successful reliance on data analytics to proactively identify health care fraud. This marks an attempted move away from prior reliance on individual reporters (witnesses and whistleblowers) to identify and prosecute fraud. The increased reliance on data analytics is expected to increase the speed and effectiveness of criminal prosecutions.

 

     Undoubtedly, in the limited time available, the agencies were not able to identify all their goals, initiatives, and enforcement activities. Expect them to continue activities in previous areas of focus and in other and new areas not identified in their presentations.


If you have any questions about this Legal Briefing, please contact any attorney of our Firm at 585-730-4773.

 

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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2019 Law Offices of Pullano & Farrow PLLC

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