By Jerri Lynn Ward, J.D., Garlo Ward, P.C.
www.garloward.com
Posted October 4, 2004
Personal Injury Lawyers. It was an age undreamed of—
when out of Austin Texas a New Threat appeared!
Let me tell you of the days when there appeared…
Barbarians at your Door!!!
In 2003, the Legislature, faced with a shortfall of revenue, delivered two successive and painful blows to long term care providers who receive revenues from Medicaid. First, it decreased reimbursements. Then it passed legislative directives to increase the aggressiveness of Medicaid fraud detection and prosecution. It also mandated that a new Memorandum of Understanding (MOU) be effected between HHSC and the Medicaid Control Fraud Unit of the Attorney General’s Office. The intent of the MOU is to facilitate:
“…the development and implementation of joint written procedures for processing cases of suspected fraud, abuse, and/or waste under the state Medicaid program. The MOU ensures cooperation and coordination between the agencies in the detection, investigation, and prosecution of Medicaid fraud cases arising in the state and has proved to be beneficial to both agencies”
Just as the Roman Empire constantly defended against two Barbarian armies, the Goths and the Huns, gathering at its gates, Medicaid Providers now have two beefed-up governmental entities gathering at their doors with appetites newly whetted. When a piece of legislation makes such statements as:
(b) The commission shall:
(1) aggressively publicize successful fraud prosecutions and fraud-prevention programs through all available means, including the use of statewide press releases…
This article will discuss three topics relevant to that question:
- Troublesome Actions that have been taken by HHSC with respect to its Investigations
- What can the MFCU do to you?
- The Impact of the Memorandum of Understanding between HHSC and MFCU on long term care providers
Two divisions within HHSC investigate providers with respect to Medicaid fraud. The one relevant to this discussion is the Medicaid Provider Integrity (MPI) division which investigates allegations regarding:
- billing for services not rendered;
- billing for services not medically necessary;
- upcoding or inappropriate billing that results in a loss to the Medicaid program;
- inappropriate or lack of documentation to support services billed;
- quality of care issues that fail to meet professionally recognized health care standards;
- altering and/or falsifying documentation;
- soliciting kickbacks; and/or
- violating Medicaid and/or CHIP program policies, procedures, rules, regulations, and/or statutes.
Within the past year, HHSC has been arriving at the doors of providers (mainly HCS and ICFMR) and demanding to take the providers’ original records. I wrote about this in October, 2003 and in June, 2004. As I said in the first article, I do not believe that the law, regulations or contract principles authorize this type of document removal. Moreover, under other State and Federal laws, a provider is required to have certain types of documentation on premises. This would include tax, labor and Medicare/Medicaid laws.
HHSC proposed rules in June which would allow them to take original documents. The rules have not become final. Hopefully, they will never become final in the form that was proposed. However, HHSC may be continuing its attempts to bully providers into allowing it to confiscate original documents. If you experience this sort of approach by OIG investigators, talk to a lawyer before succumbing to pressure.
A second concern with regard to an investigation by HHSC is that information and documents it obtains can be turned over to the Attorney General’s Medicaid Fraud Control Unit (MFCU). This is troublesome because HHSC investigates civil matters, while the MFCU investigates criminal matters.
The Medicaid Fraud Control Unit is a division of the Texas Attorney General’s Office which:
- investigates criminal fraud by Medicaid providers;
- investigates physical abuse and criminal neglect of patients in health care facilities licensed by the Medicaid program, including nursing homes and Texas Department of Mental Health/Mental Retardation homes; and
- assists local and federal authorities with prosecution
(The above is paraphrased from the Attorney General’s website)
When investigating criminal fraud, the MFCU looks for things such as:
- billing Medicaid for X-rays, blood tests, and other procedures that were never performed, or falsifying a patient’s diagnosis to justify unnecessary tests;
- giving a patient a generic drug and billing for the name-brand version of the medication;
- giving a patient over-the-counter drugs or goods and billing for the prescription drug;
- billing Medicaid for care not given, for care given to patients who have died or who are no longer eligible, or for care given to patients who have transferred to another facility;
- transporting Medicaid patients by ambulance when it is not medically necessary;
- requiring vendors to “kick back” part of the money they receive for rendering services to Medicaid patients (kickbacks may also include vacations, merchandise, etc.);
- billing patients for services already paid for by Medicaid.
(The following is taken from the Attorney General’s website)
As part of its investigation, the MFCU may:
- Require sworn statements
- Examine witnesses under oath
- Make a civil demand requiring certain documents (without a warrant)
As is noted above, the MFCU investigates and prosecutes abuse and criminal neglect. Last February, MFCU spearheaded the investigation of employees of three Fort Worth Nursing Homes. Three LVN’s were arrested on allegations of criminal neglect stemming from alleged failure to treat pressure ulcers. Two Nurse Aides were arrested for injury to the elderly for allegedly transferring residents without assistance and dropping them.
You too may be on the radar screen for MFCU’s investigations of abuse and criminal neglect. The Memorandum of Understanding effected by HHSC and the OAG provides that MFCU receive all incident reports involving abuse that are filed with Texas Department of Aging and Disability Services (this has subsumed TDHS). In fact, I have heard stories of MFCU investigating incidents already investigated and cleared by the old TDHS. The investigators made it very clear to the provider that they were not constrained by the decision of the survey agency.
Besides incident reports, the new law requiring Reporting Deaths to the Attorney General can unleash an investigation regarding abuse or criminal neglect. I discussed that issue in June, 2004. Again, there have been instances where the MFCU has reinvestigated deaths already cleared by the old TDHS as not have resulted from a deficient practice.
If you find yourself the subject of an investigation by HHSC and/or the MFCU, it would be wise to consult an attorney to guide you in your self-investigation and in responding to the investigation of HHSC and/or the MFCU. When such an investigation descends upon you, remember the words of that famous barbarian, Conan, when he was asked by the Mongol General about what is best in life for a barbarian. Conan’s answer defines the approach of HHSC and the MFCU:
and to hear the lamentation of the women!
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
