New York OMIG Lawyer
New York healthcare attorneys at Norman Spencer Law Group have a solid track record of success representing healthcare providers before the New York Office of Medicaid Inspector General, (OMIG). We have helped numerous clients, both corporate and individual, with all types of OMIG cases, from compliance to audits to exclusions.
What is OMIG
The OMIG is part of the state Department of Health. It is an agency with the primary function to ensure the integrity of New York’s Medicaid program. OMIG focuses on fraud prevention and detection, Medicaid audits and Medicaid fraud investigations, as well as waste or abuse in the Medicaid program.
While OMIG is the primary agency responsible for the Medicaid program integrity in general, it also has statutory authority over the Medicaid programs administered through other agencies including the Department of Health, the Office of Mental Health, the office of Mental Retardation and Developmental Disabilities, the Office of Alcoholism and Substance Abuse Services, the Office of Temporary Disability Assistance, the Office of Children and Family Services, and the Department of Education.
OMIG is authorized to take civil and administrative enforcement actions, withhold Medicaid payment to providers, levy sanctions and penalties, and exclude Medicaid providers, including vendors and contractors, from participation in the Medicaid program. OMIG may file civil court actions to recover Medicaid funds; issue subpoenas, take witness testimony, force production and audit of records.
If you have an issue related to OMIG, you need the help of an experienced attorney skilled in navigating the complex labyrinth of New York Medicaid rules and OMIG’s own regulations. Our New York OMIG attorneys have represented clients at all levels of OMIG actions. We know how OMIG works and we use our extensive knowledge to our clients’ advantage.
Who Are Our OMIG Clients
We represent individual providers as well as business entities in all types of OMIG matters. Our individual clients include Medicaid providers such as:
- Physical Therapists
- Speech Therapists
- Social Workers
Our corporate OMIG clients include
- Visiting Nurse Agencies
- Nursing Homes
- Long Term Home Health Care Programs
- Certified Home Health Care Agencies
- Personal Care Agencies
- Durable Medical Equipment Vendors
- Transportation Companies
OMIG Audit Lawyers
Audits are a large part of the OMIG function. OMIG may conduct random audits of Medicaid providers to evaluate compliance with Medicaid requirements. OMIG also initiates audits of providers based on leads from other agencies or based on its own data, which may suggest potential irregularities. The goal of an OMIG audit, of course, it to determine if a Medicaid provider billed Medicaid properly for it’s services. The top issues OMIG concentrates on during an audit are whether the services were provided, whether the appropriate codes were used for billing for these services, and whether the services were provided and the bills submitted in compliance with the applicable rules, regulations, and manuals.
Providers are usually notified of an OMIG audit when they receive an Audit Notification Letter. In that letter, OMIG requests the provider to produce documents and financial records. If this is your situation, you must speak with an experienced OMIG attorney immediately before providing any documents to OMIG. This applies to all types of providers, smaller practices and larger organization. Each healthcare provider organization should have an appointed officer to deal with government inquires, audits, and investigations and all employees should be instructed to refer all such inquires to that officer who should engage the attorney as soon as possible.
Whether to cooperate with the audit and how to cooperate with it is a very important decision with far-reaching legal consequences and should be very carefully weighted.
Where the documentation is turned over and the audit begins, the OMIG will generally examine a sample of files or services, anywhere between 50 to 200 from a universe of all services provided during a time period of two to five years. That is done to ensure that enough data is collected to show a clear picture of the provider’s billing practices.
Depending on the type of provider, some of the issues auditors look for are:
Assisted Living Programs
- Missing Patient Records
- Missing Medical Evaluation/interim assessment
- Missing or invalid signatures on medical evaluations or interim assessment
- Missing Plan of Care or signature on the plan of care
- Missing Nursing, Functional, or Social Assessment
- Missing Patient Review
- No service Rendered
- Missing Service Documentation
- Incorrect Codes Billed
- Billing For Services While Inpatients were at another facility
- Failure to compete training requirements, health assessment, annual performance evaluation
Certified Home Health Agencies
- Missing or Insufficient Documentation of Hours/Visits Billed
- Billed For Services In Excess Of Ordered Hours/Visits
- Billed Medicaid Before Services Were Authorized
- Failed to Obtain Authorized Practitioner’s Signature Within Required Time Frame
- Plan of Care/Orders Not Signed by an Authorized Practitioner
- Initial Assessment or Comprehensive Assessment Not Documented/Late/Doesn’t Meet the Required Standards
- Missing Plan of Care/Order
- Failed to Review/Update the Plan of Care
- Failed to Provide Services as Required by the Plan of Care/Medical Orders
- Billed for Performance of Tasks/Services Not Ordered
- Medical Need for Tasks/Services Not Documented in the Record
- Medical Need for Hours Billed Not Documented in the Record
- Supervision Visit Not Performed Within Required Time Frame
- Failed to Meet the Standard of Supervision Required
- Failed To Maximize Third Party/ Medicare Benefit
- Billed for Services Performed by Another Provider/Entity
- Incorrect Codes Billed
- Failure to Conduct Required Criminal History Check
- Minimum Training Standards Not Met for the Home Health Aide
- Failure to Complete Required In-Service Training
- Failure to Complete Required Health Assessment
- Missing Fiscal Order
- Missing Follow-Up Hard Copy Prescription for Controlled Drugs
- Missing Prescriptions
- Non-Controlled Prescription/Fiscal Order Filled More Than 60 Days After It Has Been Initiated by the Prescriber or Controlled Prescription Filled More Than 30 Days After the Date Such Prescription Was Signed by the Authorized Practitioner
- Prescription/Fiscal Order Refilled More Than 180 Days After It Has Been Initiated By the Prescriber
- Missing Information from Prescription/Fiscal Order
- Prescriber’s Signature Missing on Prescription/ Fiscal Order
- Prescription/Fiscal Order Refilled in Excess of Prescriber’s Authorization and/or Refilled in Violation of Medicaid Regulations
- Pharmacy Billed in Excess of Prescribed Quantity
- Pharmacy Billed for Different Strength than Ordered
- Missing Documentation Confirming Receipt/Delivery of Prescription/Fiscal Order
- Pharmacy Billed for Different Drug Than Ordered
- Procedure Code Billed Conflicts with Item Ordered
- Invalid Prescription/Fiscal Order
- Missing DEA# on Controlled Substance Prescription
Durable Medical Equipment
- No written orders
- No documentation of service
- DME billed in excess of the maximum allowance
- Items billed in excess of quantity ordered
- Item billed does not match ordered item
- No signature on written order
- Missing Information on written order
- Original Order Filled Beyond Acceptable Timeframe
- Order Refilled More Than 180 Days After It Has Been Initiated by the Prescriber
- Unqualified Ordering Practitioner
- Missing Documentation Confirming Receipt/Delivery of Item
- Billing of Item Prior to Delivery
- No Explanation of Benefits (EOB)/Documentation for Medicare Covered Items
- Other Insurance Payments Not Applied
- Incorrect Procedure Code Billed
- Billed Item Included in a Facility’s Rate
- Duplicate Payments
- Unqualified Dispenser
- Billed service Date After Patient’s Death
- Improper Medicaid Billings for Medicare Crossover Patients
- Missing, Inadequate and/or Incorrect Documentation and forms
- No proof of medical necessity
- Duplicate Billing or Frequently Exceeded billing
- Incorrect Codes Billed
- No Recipient Treatment Visits Documented During Paid Orthodontic Treatment Quarter
- Diagnostic Imaging Fails to Comply with Program Requirements
- Billed and/or Reimbursed Service Not in Conformance with Prior Approval/Authorization Requirements
- Provider Requested Payment from Recipient in Excess of Payment Received from Medicaid
- ProviderGroup Billed Medicaid for a Service that the ProviderGroup Provides the General Public at a Reduced Rate or Free of Charge
- Anesthesia Not Billed Correctly
- Dental Treatment/Service Provided is Not a Covered and/or Essential Service
- Dental Services Billed to Medicaid For Which a Third Party is Liable
- Billed Item Included in a Facility’s Rate
- Failure to Enroll as a Group Practice and/or Failure to be Added as a Member of a Group Practice
Transportation and Ambulette
- Missing/Incomplete Documentation
- Missing/Inaccurate Ordering Provider Information on Claim
- Non-Reimbursable Toll
- Excessive Mileage Claimed
- A Medical Service Could Not Be Corroborated for the Transportation Service Provided
- Driver is Not NYS DMV 19A Certified
- Provider or Driver Not Taxi and Limousine Commission Licensed
When the audit is concluded, the agency will present its finding to the provider in a draft audit report. The report will state whether the OMIG believes that the provider complied with the regulations or not and whether any overpayment was made. You will have 30 days to respond to this report. Contact our OMIG audits attorneys to discuss your options as early as possible.
OMIG/HMS Medicaid Recovery Audit Contractor (RAC)
In addition to conductions audits on its own, OMIG contracts with the private Medicaid Recovery Audit Contractor Health Management Services (HMS) to audit New York Medicaid providers and recover funds on its behalf. HMS also reports all suspected Medicaid fraud to OMIG for further investigation.
HMS audits begin with a letter requesting patient records. HMS may conduct desk reviews, using only the requested documents as well as onsite reviews. Contact an experienced attorney as soon as you are notified of an audit. Do not provide any documentation to HMS before you had an opportunity to seek legal counsel.
At the conclusion of the audit, HMS will present its finding to the provider. If you disagree with these findings, you may dispute or appeal them. If OMIG or HMS begins recovering the funds, you may request an administrative hearing before the Administrative Law Judge. If you disagree with the ALJ decision, you may appeal it directly to NY Supreme Court under the Article 78.
New York Social Services Law requires that all New York Medicaid providers develop, adopt, and implement effective compliance programs in order to detect and prevent fraud, waste, and abuse in the Medicaid program.
New York’s mandatory compliance program law applies to all Medicaid providers. There are two groups of providers who must have compliance programs. The first group consists of healthcare institutions providing Medicaid services. They are subject to Public Health Law articles 28 or 36, and Mental Hygiene Law articles 16 or 31 and include hospitals, nursing homes, residential facilities, and other organizations. These providers must have Medicaid compliance program regardless of how much they bill Medicaid.
The second group includes all other Medicaid providers, vendors, and contractors. With some exceptions, these providers are required to meet the mandatory compliance program obligation if (1) they bill, claims, order, or receive from Medicaid at least $500,000 in 12 consecutive months, (2. is a person, provider, or affiliate that receives or has received or should be reasonably expected to receive at least $500,000 in any consecutive 12-month period directly or indirectly from Medicaid; or they submit claims for care, services, or supplies to Medicaid of at least $500,000 in 12 consecutive months.
OMIG is authorized to randomly verify whether Medicaid providers, which are required to have a compliance program, actually have done so.
Additionally, providers are obligated to certify once a year that they have a compliance program. Medicaid providers that failed to develop and implement a compliance programs may face sanctions or penalties which may include revocation by the Department of Health of the provider’s agreement to participate in the Medicaid program.
Attorneys at Norman Spencer Law Group assist New York Medicaid providers with developing effective compliance programs that satisfy statutory requirements.
OMIG is one of the principal New York agencies involved in detecting Medicaid fraud and other unacceptable practices. OMIG audits and fraud investigations take place on a permanent basis resulting in administrative actions such as exclusions and payment withholdings as well as civil litigation and criminal prosecutions. Many of the OMIG fraud cases are referred to the New York State Office of the Attorney General’s Medicaid Fraud Control Unit (MFCU) for criminal prosecution. Many cases are referred the Office of Professional Medical Conduct (OPMC), the Bureau of Narcotic Enforcement, New York State Department of Education, the Office of the Welfare Inspector General, and the Health and Human Services Office of the Inspector General.
OMIG also investigates Medicaid recipient fraud. That includes cases of Medicaid eligibility, fraudulent use of Medicaid benefits cards, and cases where individuals give their cards others to obtain medical benefits. for which they are not entitled.
Norman Spencer and Associates handled hundreds of Medicaid fraud cases, establishing a solid track record of success.
OMIG Medicaid Exclusions
If OMIG determines that a provider should not be participating in the Medicaid program, it will take an action excluding the provider. A provider may be excluded for any conduct OMIG considers unacceptable. The most common grounds for exclusion are:
- Being charged with a crime
- Professional misconduct
- Fraudulent practice
- Affiliation with other Medicaid program violators
- Engaging in any other “unacceptable practices”
Note that many providers will be excluded simply based on being charged with a crime before being convicted.
Excluded providers may not be involved in any activity relating to furnishing any medical services or supplies for which claims are submitted to Medicaid. For many health-care professional that may mean an effective end of their ability to practice.
Excluded providers may apply for reinstatement. Applications for reinstatements are not granted automatically. OMIG needs to be reasonable certain that the violations will not occur again. These assurances may include proof of courses or continuing education, substance abuse counseling, restitution paid, implementing a compliance plan, and independent monitoring of billing.
Attorneys at Norman Spencer and Associates have successfully represented numerous clients in OMIG exclusion and restoration cases. If you have been excluded from participating from Medicaid in New York or would like to discuss applying for reinstatement as a Medicaid provider, contact our experienced OMIG attorneys today.