By Jerri Lynn Ward, J.D. Garlo Ward, P. C. www.garloward.com
Posted October 31, 2003
It has come to my attention that the HHSC MPIU is coming into private provider ICF-MR and HCS facilities asserting that the investigator has a right to confiscate your original documents and leave you no copy. IT DOES NOT HAVE THIS RIGHT!!
It has a right to access and view your original documents and to make copies at your expense. So don’t fall for the investigator’s assertions and threats!!! Tell them that if they try to take your records instead of copies – you are calling the police. Also, call your attorney immediately. And, call your State Representatives as well. Some of them have already been notified of these actions by investigators.
Here is the basis for the position that HHSC has the right only to view originals and to take copies which is taken directly from the letter that they give you upon entry:
Under the provisions of 42 CFR §431.107(b)(1) and (2), the provider is required to retain and to make records available upon request by the Medicaid agency. As set forth in the provider contract, the provider must “Provide any information, records, or copies thereof, required by the (provider agreement) at no cost to the state or federal authority requesting such information or records…”. The letter itself specifies on page 2, paragraph 2 that “Pursuant to the authority listed above, we may request copies of some or all of the original documents listed above. If you receive such a request, these copies must be provided free of charge and be accompanied by business records affidavits which must be notarized.”
Clearly, the facility is obligated to provide access to its original documents, and as requested by THHSC, provide copies of these documents free of charge. Nothing in the letter states that there is any authority for THHSC or its designated agents to seize the provider’s original records and/or prevent the provider from making copies or maintaining copies of any documents examined, or in this case, seized by the designated agents of THHSC.
Also important specific provisions of the Texas Administrative Code (TAC), 25 TAC § 409.55(4), 409.58 and 409.61 allowing for the imposition of sanctions in the event the provider does not comply and provide information as requested. Of these provisions, 25 TAC § 409.55(4) and 409.61 describe the bases for imposing the sanctions described in 25 TAC § 409.58. The bases for imposing sanctions are:
in 25 TAC § 409.55(4)
“(4) failing to disclose or make available upon request to the department or its authorized agents, representatives of the Department of Health and Human Services, or the attorney general’s Medicaid Fraud Control Unit any records the provider is required to maintain or any records necessary to verify items or services furnished under Title XIX or Title XX to determine whether payment for those items or services is due or was properly made. This includes providing documentation or allowing examination of records or both. This also includes records of services provided to Medicaid recipients and payments made for those services, including, but not limited to, documents related to diagnosis, treatment, service, lab results, and x-rays. Accessible information must include information that is necessary for the agencies specified in this paragraph to perform statutory functions;”
and in 25 TAC § 409.61
“(7) any conduct or omission of conduct by the provider that would preclude the department or its authorized agents, representatives of the Department of Health and Human Services, or the attorney general’s Medicaid Fraud Control Unit from obtaining upon request access to or copies of records of services provided to Medicaid recipients and payments made for those services including, but not limited to, documents related to diagnosis, treatment, service, lab results, and x-rays.”
Clearly in both instances no rights are given to the Texas Department of Health and Human Services or the attorney general’s Medicaid Fraud Control Unit to remove the provider’s original records from its premises. The provisions are clear that sanctions may only be imposed where a provider fails to provide access to records or fails to “provide copies” of records as requested by the THHSC or its designated agent.
To construe any provision of these related state and federal statutes as allowing the seizure of the provider’s original records and documentation would mean interpreting the law such that regulators could seize the very original records and documentation the providers are required to maintain in their control and provide access to in order to comply with both state and federal regulations for admission into the Medicaid program. We reject this interpretation of the law and suggest that you protect yourself from this abusive behavior.
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
