AG’s office, state Medicaid agency to sign new info sharing agreement

The state Human Services Division (HSD) and Attorney General’s office will sign a new memo of understanding about data sharing and the coordination of Medicaid fraud investigations, officials at both agencies told The Independent Monday.

The AG’s office 

State’s violations of Medicaid regs cost $31 million, AG letters suggest

In a series of three formal Medicaid program improvement recommendation letters sent to the state Human Services Department (HSD) in 2009, the Attorney General’s Medicaid Fraud & Elder Abuse Division laid out how better HSD compliance with Medicaid rules and regulations could have saved taxpayers up to $31 million.

It is unclear how much of the $31 million would represent a one-time savings, and how much represents potential repeating, annual gains. The Attorney General’s office did not respond to repeated emails requesting comment about the letters and HSD’s responses.

The state Senate voted last week to override Governor Bill Richardson’s veto last year of SB 531, which would have required state agencies to share confidential data from Medicaid and other state programs with the Legislative Finance Committee.

Rep. Paul Bandy, R – Aztec, yesterday charged Speaker Ben Lujan with attempting to block a similar override vote in the House.

“It’s important that we connect our issues with Medicaid fraud, and the associated tens of millions of dollars in fraud, and our current budget challenges,” Sen. Tim Keller, D-Albuquerque, said of the override effort. “The challenge here is how to handle confidential information between different parts of government. This has long been a sticking point when it comes to program evaluation. We’ve seen similar impasses with prison contracts, Salud and public schools in the past.”

The Medicaid Fraud Division’s 2009 letters to HSD and HSD’s response letters were disclosed to The Independent in response to public records requests.

Out of State Medicaid Recipients: $16.2 million lost
According to state law, Medicaid is for “eligible New Mexico residents who otherwise would not have the financial resources” to obtain medical care.

But, according to a Sept. 30, 2009 letter from the Medicaid Fraud Division to HSD, a Tulsa, Oklahoma lawyer earning $231,000 a year secured $135,000 in New Mexico Medicaid assistance — $9 ,000 a month — to place his 9-year-old daughter in a residential behavioral health center in Los Lunas by listing her as a New Mexico resident and a “head of household” with no income.

Up to $16.2 million could be saved by denying New Mexico Medicaid benefits to non-residents, the letter claims.

The HSD does require New Mexico residency for Medicaid eligibility, HSD Medical Assistance Division Director Carolyn Ingram said in an October 29, 2009 response to the Fraud Division’s letter. Ingram’s letter was disclosed to The Independent Feb. 8 in response to a public records request.

In the letter, Ingram discounted any widespread problem with Medicaid benefits going to non-residents.

“In certain rare instances, a child can be placed in a New Mexico substitute living arrangement pending the transfer of guardianship or adoption by a New Mexico resident,” Ingram wrote. “(Regulations) allow a child to be considered a household of one, after the first month of placement in a substitute living arrangement. After the first month in a private facility, a parent or legal guardian who meets the residency requirement, may apply for Medicaid based on the child’s income alone. It appears that an attempt to get around the residency requirement by both the parents and the facility was successful in this situation. The worker failed to look at the legal standing of the Power of Attorney in this case. …Our examination of current policy does not inidcate a revision is needed; we believe the policy is clear on residency.”

Not Disclosing Medicaid Contracts to Investigators: $13.7 million lost
HSD’s failures to disclose Medicaid providers’ contracts to the Medicaid Fraud Division cost taxpayers up to $13.7 million, according to a June 29, 2009 letter from the Fraud Division to HSD.

The Medicaid Fraud Division frequently sues health care providers for over-billing Medicaid using breach-of-contract law, arguing the Provider has not complied with the terms of its Medicaid Provider Agreement with the state. But because HSD has failed to disclose these agreements “many” times, investigators have been unable to seek recoveries for fraudulent over-billing, the letter states.

“Additionally, criminal prosecutions may be adversely impacted if the state is unable to present proof a defendant is a contracted Medicaid Provider subject to the terms of the agreement,” the letter states.

Responding to the letter, Ingram pointed out that other agencies held provider agreements and said HSD was working with those agencies to revise internal policies and procedures to maintain entire contract documents.

“Currently, the (Health) Department maintains all pages with provider specific data including signature pages,” Ingram wrote in the July 15, 2009 letter. “However, we do not retain standard text pages.”

But the Health Department also failed to disclose requested records to the Medicaid Fraud Division, according to the Fraud Division’s June 30, 2009 annual report to the Inspector General of the U.S. Department of Health and Human Services. Both the HSD and Health Department “review and, on occasion, redirect the (Fraud) Division’s data or document requests,” the Fraud Division’s annual report stated. “The Division repeatedly has requested copies of the contracts between the Medicaid agency and the Medicaid managed care organizations to no avail.”

HSD posted signed Medicaid managed care organization contracts on its Salud website earlier this year.

Informal Review Conferences: $1.5 million lost
HSD grants providers gratuitous informal administrative hearings when no right to a hearing exists, costing Medicaid up to $1.5 million, according to a Dec. 23, 2009 Medicaid Fraud Division letter to the HSD.

For example, Cuidando Las Familias in Rio Rancho failed to properly screen 75 care providers, in violation of the state’s Caregivers Criminal History Screening Act, the letter states.

Because the facility charged Medicaid $3.69 million for services provided by unscreened caregivers, the Medicaid Fraud Division recommended that HSD implement a check hold for overpayment, citing federal Medicaid regulations. But the facility requested and was granted an administrative hearing to challenge the check hold.

The Fraud Division letter does not contest the legitimacy of the bills for the care provided to patients, however — just the eligibility of the caregivers in question to receive Medicaid funds.

The Fraud Division letter attributes HSD’s granting of the “gratuitous” and “unjustified” hearings to ambiguities in the state’s Medicaid regulations and recommended that “administrative review” be more clearly defined.

In a January 21, 2010 response letter, Ingram disagreed that the recommended clarification would yield savings for the Medicaid program.

Indeed, the additional responsibility would likely cost HSD time and money, Ingram suggested.

“(T)his recommendation would have significant fiscal implications to the (HSD) since it would essentially require HSD to implement a completely new process for the remaining (Fee For Service provider) population,” Ingram wrote.

The federal Medicaid Integrity Group plans to investigate allegations reported in The Independent that the HSD stonewalled Medicaid Fraud Division investigators during 2008 and 2009.

AG’s office wants direct access to state Medicaid data

The state’s stonewalling of the Attorney General’s Medicaid fraud investigations violates federal regulations, Attorney General’s office spokesman Phillip Sisneros said Friday.

“HSD’s compliance with the federal Program Integrity regulation could be improved,” Sisneros told The Independent. “That regulation requires that (the Fraud Division) has access to any records or information kept by HSD or its contractors and providers.”

Sisneros cited 42 C.F.R. § 455.21, a federal Medicaid regulation requiring states’ cooperation with State Medicaid fraud control units. The regulation requires states to provide fraud investigators with access to any records, information and computerized data kept by the agency or its contractors.

But according to a report by the Attorney General’s Medicaid Fraud & Elder Abuse Division, the state Human Services Department and Health Department have hindered numerous investigations into fraud and elder abuse by refusing to disclose records to investigators.

Human Services Department spokeswoman Betina Gonzales McCracken rejected those allegations earlier this week, claiming investigators had direct access to patient encounter data, describing patient care for which providers charged Medicaid.

“Regarding encounter data, the (Fraud Division) has the same access our Medicaid staff has, and can receive this information directly,” McCracken said.

But Sisneros said McCracken’s claim was “incorrect.”

“(The Fraud Division) does not have direct access to that data,” Sisneros said. “HSD requires the Division’s investigators and attorneys to submit requests for the information to the HSD Medical Assistance Division, which must give authorization…before the data is released. The Division does not have the ability to ascertain whether the data that is received has been filtered in some way.”

Direct access to Medicaid data would be “a significant step forward,” Sisneros said.

Fraud Division Director Elizabeth Staley did not answer emailed questions and was too busy with the legislative session to discuss the allegations, Sisneros said.

McCracken also said earlier this week that the Fraud Division’s allegations had never been raised at monthly inter-agency Medicaid meetings. But minutes from a May 19, 2009 meeting seem to refute that claim, making clear reference to the Fraud Division “having a hard time obtaining some provider agreements (and) files.”

McCracken had initially said there were not any transcripts or meeting minutes for the monthly inter-agency gatherings, but subsequently disclosed summary minutes from six meetings to The Independent — three meetings in 2008 and another three from 2009, the most recent from a meeting held May 19, 2009.

Minutes were not kept from all of the inter-agency meetings, McCracken said of the 18 months for which no meeting minutes were disclosed. Some meetings had been canceled due to holidays and legislative sessions, McCracken added.