(February 21, 2014): If you are a participating provider in the Texas Medicaid program, do you have a Medicaid compliance program in place for your practice? If the answer to this question is “no” – or, more worrisome, if you are asking, “What is an effective compliance program?” – you are violating the terms of your enrollment agreement with the Texas Medicaid program. According to your contract, you must have a compliance program in place prior to enrollment. Without one, you may be subject to recoupment and / or various administrative sanctions.
Pursuant to the Texas Medicaid Provider Enrollment Application, prospective Texas Medicaid providers must attest to its compliance program requirement. Under this condition, a provider must verify that in accordance with requirement TAC 352.5(b)(11), the provider has a Medicaid Compliance Program containing the core elements as established by the Secretary of Health and Human Services referenced in §1866(j)(8) of the Social Security Act (42 U.S.C. §1395cc(j)(8)), as applicable.
Does this section look familiar to you? A Texas Medicaid provider must affirmatively attest that he or she has a compliance plan in place prior to submitting his or application for enrollment. However, you may have simply checked the box “yes” without even realizing what a compliance program is or what is required under this section. This may be a serious, detrimental mistake that can lead to administrative, and possibly even criminal, sanctions.
II. Provider Compliance Program Requirements for Medicaid Enrollment:
An effective compliance program will generally be tailored to complement a provider’s practice requirements as necessary. However, a Texas Medicaid provider must ensure that his or her compliance program includes, at a minimum, the following core elements:
- Conducting internal monitoring and practice standard;
- Implementing compliance and practice standards;
- Designating a compliance officer or contact;
- Conducting appropriate training and education;
- Respond appropriately to detected offenses/ develop corrective actions;
- Developing open lines of communication;
- Enforcing disciplinary standards through well-publicized guidelines.
We have previously addressed these elements more in-depth in previous articles. But remember – these core elements are just the framework and a model that a successful provider will build upon. These elements do not form a complete and effective compliance program but will give you sufficient guidance to begin establishing a plan for your own practice. In addition, Texas Medicaid providers should consider using qualified health law attorneys to conduct a “GAP” analysis in addition to implementing an effective compliance program. Moreover, providers should remember that simply putting a compliance program in place is not the end – you must ensure that you are properly providing compliance training to your staff.
III. Failure to Have a Medicaid Compliance Program – or Falsely Attesting to Having One – Can Lead to Recoupment and Administrative Sanctions:
More importantly, by signing your enrollment application, the prospective Medicaid provider understands and agrees that any falsification, omission, or misrepresentation in connection with the application for enrollment is a violation of law. Moreover, it may result in the denial of previously paid claims and could also result in other administrative sanctions such as payment hold, exclusion, debarment, contract cancellation, and monetary penalties.
Thus, if a Texas Medicaid provider falsely attests that he or she has a compliance program in place when, in fact, this is not the case, that provider is committing Medicaid fraud. In this case, a provider may be prosecuted under applicable Federal and Texas state laws. Moreover, fraud is a felony and may result in additional fines or imprisonment.
Medicaid fraud has become a significant issue in the State of Texas over the last decade. Recoveries obtained by the State of Texas under the Texas Medicaid Fraud Prevention Act (TMFPA) and its federal analog, the False Claims Act (FCA), reflect that the state has obtained tremendous recoveries. For example, from 2006 through 2012, Texas recovered over $821 million for state and federal taxpayers in recoveries for Medicaid fraud. If you become subject to exclusion, you are barred from ordering or prescribing any services to beneficiaries after the exclusion date. You do not want to be included in one of these figures.
IV. Final Remarks Regarding Your Need to Implement a Medicaid Compliance Program:
If you have recently submitted your application for enrollment to the Texas Medicaid program, and discover that you have submitted your application with errors, you have some reprieve. You have 30 calendar days to inform the Texas Health and Human Services Commission or its designee, in writing, as to any changes to the information submitted in connection with your application to participate in the Medicaid program.
While a compliance program, and compliance in general, may seem like a burdensome exercise, it is the ultimate safeguard for your practice considering the myriad statutory and regulatory problems a healthcare provider can run into. More importantly, it is a requirement for your participation in the Texas Medicaid program. As the Texas government and its private enforcers increase their funding, skills, and sophistication, you need to keep pace and ensure your practice continues to thrive. While we hope that you already have a compliance program in place, if you need any assistance implementing one – or making your current program more effective – do not hesitate to give us a call today!
Robert W. Liles, Esq., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker attorneys represent health care providers and suppliers around the country in connection with Medicare audits by ZPICs and other CMS program integrity contractors. The firm also represents health care providers in HIPAA Omnibus Rule risk assessments, privacy breach matters, State Medical Board inquiries and regulatory compliance reviews. For a free consultation, call Robert at: 1 (800) 475-1906.