OMIG Update: Compliance, Self-Disclosure, and Managed Care Fraud, Waste, & Abuse Regulations Guidance Posted | Rivkin Radler LLP

On the heels of the release of the final regulations on December 28, today, the Office of the Medicaid Inspector General just released guidance on Compliance Programs; Self-Disclosure; and Medicaid Managed Care Fraud, Waste and Abuse Prevention Programs. The guidance can be found here:

The Compliance Guidance Document discusses the benefits of an Effective Compliance Program (and consequences for not having one). It also walks through the OMIG’s expectations on their updated 7 Elements (the reduction from the previous published 8 Elements is now consistent with Federal Sentencing Guidelines) and includes helpful references and authorities. Perhaps most importantly, it lays out the process, criteria and scoring for OMIG’s Compliance Program Reviews. Addendum A to the Guidance provides a crosswalk to the statutory changes to the implementing Legislation (NYS SSL sec 363-d). Addendum B lays out the requirements of the Deficit Reduction Act (DRA) related to fraud and abuse, which the OMIG has now extended to all “Required Providers” – those that meet the statutory and/or monetary thresholds that necessitate implementation of an Effective Compliance Program.

The Self-Disclosure Program Instructions and Guidelines clarify the requirements and process for timely disclosing an identified overpayment. The guidance includes criteria for eligibility, timelines for submission and responses to inquiries, and also specifies the information required to be submitted. It also includes warnings and consequences for failing to timely disclose or follow the prescribed process. The document concludes with a reminder of documentation retention requirements and what to do if records are damaged, lost or destroyed. The Guidance is supplemented by FAQs, self-disclosure submission information and instructions and a submission checklist.

The Medicaid Managed Care Fraud, Waste and Abuse Prevention Programs Guidance, which overlaps with both the Compliance and Self-Disclosure Guidance, provides additional detail on the statute and regulations in regards to internal and network provider oversight including a robust SIU and MMCO audit and investigation requirements. The guidance also includes OMIG expectations on Reporting cases of FWA and establishing a formal self-disclosure process for MMCO providers. The guidance is rounded out by discussing requirements for Plans to develop FWA Prevention Plans and publishing an Annual Report (an Annual Report Form is provided) to outline progress with implementing the Prevention Plan.

These additional documents deserve significant attention including a thorough review as the contents are sure to be included in future OMIG reviews. The timing of the release of the additional materials suggest OMIG is poised to start their enforcement sooner than later, and providers and plans are encouraged to review and supplement existing compliance policies and procedures to ensure they address these new and modified requirements and guidance.