TITLE
8 SOCIAL SERVICES
CHAPTER
308 MANAGED CARE PROGRAM
PART
22 FRAUD,
WASTE AND ABUSE
8.308.22.1 ISSUING AGENCY: New Mexico Human Services Department (HSD).
[8.308.22.1
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8.308.22.2 SCOPE: This rule applies to the general public.
[8.308.22.2
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8.308.22.3 STATUTORY AUTHORITY: The New Mexico medicaid
program and other health care programs are administered pursuant to regulations
promulgated by the federal department of health and human services under Title
XIX of the Social Security Act as amended or by state statute. See NMSA 1978, Section 27-1-12 et seq.
[8.308.22.3
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8.308.22.4 DURATION: Permanent.
[8.308.22.4
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8.308.22.5 EFFECTIVE DATE: January 1, 2014, unless a later date is cited
at the end of a section.
[8.308.22.5
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8.308.22.6 OBJECTIVE: The objective of this rule is to provide
instructions for the service portion of the New Mexico medical assistance
division programs.
[8.308.22.6
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8.308.22.7 DEFINITIONS:
A. “Abuse” is provider practices that are inconsistent with
sound fiscal, business, or clinical practices, and result in unnecessary costs
to the medicaid program, or in reimbursement of
services that fail to meet professionally recognized standards for health care.
B. “Credible allegation of fraud” means an allegation, which
has been verified by the state, from any source, including but not limited to
the following:
(1) fraud hotline
complaint;
(2) claims data
mining;
(3) patterns
identified through provider audits;
(4) civil false
claims cases; or
(5)
law enforcement investigations; see 42 CFR
455.2.
C. “Fraud” means an intentional deception or
misrepresentation by a person or an entity, with knowledge that the deception
could result in some unauthorized benefit to him or herself or some other
person. It includes any act that
constitutes fraud under applicable federal or state statutes, regulations and
rules.
D. “MFEAD” is the medicaid fraud
and elder abuse division of the New Mexico attorney general’s office
E. “Overpayment” means any funds that a person or entity
receives or retains in excess of the medicaid
allowable amount; however, for purposes of this rule, an overpayment does not
include funds that have been subject to a payment suspension or that have been
identified as third-party liability.
F. “Provider” means a network provider and non-network
provider.
G. “Recovery” means money received by HSD or MFEAD for fraud
or credible allegations of fraud from a provider.
H. “Refund” means money returned by a provider for
overpayment(s).
I. “Waste” is the overutilization of services or other
practices that result in unnecessary costs.
[8.308.22.7
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8.308.22.8 MISSION STATEMENT: To reduce the impact of poverty on people
living in New Mexico by providing support services that help families break the
cycle of dependency on public assistance.
[8.308.22.8
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8.308.22.9 FRAUD,
WASTE AND ABUSE: HSD is committed to
aggressive prevention, detection, monitoring, and investigation to reduce
provider or member fraud, waste and abuse.
This rule applies to all individuals and entities participating in or
contracting with HSD or a MCO for provision or receipt of medicaid
services. If fraud, waste or abuse is
discovered, HSD shall seek all remedies available to it under federal and state
statutes, regulations, rules.
A. Program integrity requirements: the MCO shall have a comprehensive internal program integrity and overpayment
prevention program to prevent, detect, preliminarily investigate and report
potential and actual program violations including detecting potential
overutilization of services, drugs, medical supply items and equipment. The MCO shall:
(1) be responsible
for preventing and identifying overpayments or improper payments made to its
providers;
(2) have specific internal controls for
prevention, such as claim edits, prepayment and post-payment reviews, and
provider profiling; and
(3) verify that
services are actually provided utilizing “explanation of medicaid
benefits” (EOB) notices and performing audits, reviews, and preliminary
investigations.
B. Investigations and referrals: The MCO shall perform preliminary
investigations of alleged fraud. The MCO
shall:
(1) after conducting its preliminary investigation, submit to
HSD for review all facts, supporting documentation and evidence of alleged
fraud;
(2) upon request from MFEAD, release its
preliminary investigation, including all supporting documentation and evidence
to MFEAD and cease its investigation until otherwise advised by HSD or MFEAD;
(3) upon receipt of
notification by HSD, and as directed, impose a suspension of payments to
providers pending investigations of credible allegations of fraud and non release the payment suspension until notified in
writing by HSD.
C. Overpayments: Are
funds that a person or entity receives or retains in excess of the medicaid allowable amount; however, for purposes of this
rule, an overpayment does not include funds that have been subject to a payment
suspension or that have been identified as third-party liability.
(1) An overpayment shall be deemed to have
been identified by a provider when:
(a) the provider reviews billing or payment
records and learns that it incorrectly coded certain services or claimed
incorrect quantities of services, resulting in increased reimbursements;
(b) the provider
learns that a recipient’s death occurred prior to the service date on which a
claim that has been submitted for payment;
(c) the provider learns
that services were provided by an unlicensed or excluded individual on its
behalf;
(d) the provider
performs an internal audit and discovers that an overpayment exists;
(e) the provider is
informed by a governmental agency or its designee of an audit that discovered a
potential overpayment;
(f) the provider is
informed by the MCO of an audit that discovered a potential overpayment;
(g) the provider
experiences a significant increase in medicaid
revenue and there is no apparent reason for the increase, such as a new partner
added to a group practice or new focus on a particular area of medicine;
(h)
the provider has been notified that the MCO or
a governmental agency or its designee has received a hotline call or email; or
(i) the provider has been notified that the MCO or a
governmental agency or its designee has received information alleging that a
member had not received services or been supplied goods for which the provider
submitted a claim for payment.
(2) The MCO shall require its contracted
providers to report to their MCO by the later of:
(a) the date which is
60 calendar days after the date on which the overpayment was identified; or
(b) the date any
corresponding cost report is due, if applicable;
(3) The MCO shall require its providers to
complete a self-report of the overpayment within 60 calendar days from the date
on which the provider identifies an overpayment and require that the provider
send an “overpayment report” to the MCO and HSD which includes:
(a) the provider’s
name;
(b) the provider’s
tax identification number and national provider number;
(c) how the
overpayment was discovered;
(d) the reason(s) for
the overpayment;
(e) the health
insurance claim number, as appropriate;
(f) the date(s) of
service;
(g) the medicaid claim control number, as appropriate;
(h) the description
of a corrective action plan to ensure the overpayment does not occur again;
(i) whether the
provider has a corporate integrity agreement (CIA) with the United States
department of health and human services (HHS) office of inspector general (OIG)
or is under the HHS/OIG self-disclosure protocol;
(j) the specific
dates (or time span) within which the problem existed that caused the
overpayments;
(k) whether a
statistical sample was used to determine the overpayment amount and, if so, a
description of the statistically valid methodology used to determine the
overpayment; and
(l) the refund
amount;
(4) The MCO shall notify its providers of the
provision that overpayments identified by a provider but not self-reported by a
provider within the 60-day timeframe are presumed to be false claims and are
subject to referrals as credible allegations of fraud;
(5) The MCO shall report claims identified for
overpayment recovery:
(a) in a format
requested by HSD; and
(b) make 837
encounter adjustments with an identifier specified by HSD for recoveries
identified by a governmental entity or its designee.
(6) Provide all records pertaining to
overpayment recovery efforts as requested by HSD.
D. Refunds of overpayments:
(1) All self-reported refunds for overpayments
shall be made by the provider to his or her MCO and are property of the MCO,
unless:
(a) a governmental
entity or its designee independently notified the provider that an overpayment
existed; or
(b) the MCO fails to
initiate recovery within 12 months from the date the MCO first paid the claim;
(c) the MCO fails to
complete the recovery within 15 months from the date it first paid the claim;
or
(d) provisions in the
HSD agreement with the MCO otherwise provide for all or part of the recovery to
go to MAD or HSD.
(2) In situations where the MCO and a
governmental entity, or its designee, jointly audit its provider, the MCO and
the governmental entity or designee shall agree upon a distribution of any
refund.
(3) Unless otherwise agreed to by the MCO and
HSD, the MCO shall not be entitled to any refund or recovery if the refund or
recovery is part of a resolution of a state or federal investigation, lawsuit,
including but not limited to False Claims Act cases.
E. Member fraud, abuse and overutilization:
(1) Cases involving one or more of the
following situations constitute sufficient grounds for a member fraud referral:
(a) the misrepresentation of facts in order to
become or to remain eligible to receive benefits under New Mexico medicaid or the misrepresentation of facts in order to
obtain greater benefits once eligibility has been determined;
(b)
the transferring by a member of a medicaid
member identification (ID) card to a person not eligible to receive services
under New Mexico medicaid or to a person whose
benefits have been restricted or exhausted, thus enabling such a person to receive
unauthorized medical benefits; and
(c) the unauthorized
use of a medicaid member ID card by a person not
eligible to receive medical benefits under a medical assistance program or is a
high utilizer of services without apparent medical justification.
(2) HSD and the MCO shall possess the
authority to restrict or lock-in a member to a specified and limited number of
providers if he or she is involved in potential fraudulent activities or is
identified as abusing services provided under his or her medicaid
program.
(a) Prior to placing a member on a provider
lock-in, the MCO shall inform him or her of the intent to lock-in, including
the reasons for imposing the provider lock-in.
(b) The restriction does not apply to
emergency services furnished to this member.
(c) The MCO’s grievance procedure shall be
made available to the member disagreeing with the provider lock-in.
(d) The member shall be removed from provider
lock-in when his or her MCO has determined that the member’s utilization
problems or detrimental behavior has ceased and that recurrence of the problems
is judged to be improbable.
(e) HSD shall be notified of provider lock-ins
and provider lock-in removals.
[8.308.22.9
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HISTORY OF 8.308.22 NMAC: [RESERVED]