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Transcript PowerPoint - Tennessee Hospital Association
APPEALS & ADMINISTRATIVE HEARINGS FOR
TENNCARE ACTIONS AGAINST HOSPITALS
Presented by William B. Hubbard and Robyn E. Smith
Hubbard, Berry & Harris, PLLC
June 24, 2011
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OVERVIEW
A. Appeal & Hearing Process
B. Five Particular Actions That May Be Appealed
C. Additional Actions Subject to Sanctions
D. Key Points
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A. APPEAL & HEARING PROCESS
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A. APPEAL & HEARING PROCESS
CHRONOLOGY OF APPEAL & HEARING PROCESS:
1. Appealable Action Occurs (Example: Medicaid Integrity Audit)
2. TennCare Bureau Issues Notice of Action
3. Hospital Submits Appeal & Request for Hearing
4. TennCare Issues Notice of Hearing
5. Hearing With Administrative Judge (Trial-like Proceeding)
6. Administrative Judge Issues Initial Order
7. TennCare Final Order
8. Appeal to Court
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B. FIVE PARTICULAR ACTIONS
THAT MAY BE APPEALED
TennCare Rules 1200-13-18
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B. FIVE PARTICULAR ACTIONS THAT
MAY BE APPEALED
1. CMS OR TENNCARE AUDIT – Action by the Bureau to Recover
or Withhold Payments (Example: Medicaid Integrity Audit)
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
3. ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
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B. PARTICULAR APPEALABLE ACTIONS
1. CMS OR TENNCARE AUDIT
Action by TennCare (not MCO) to Recover or Withhold
Payments
Opportunity to Present Evidence to the Bureau Prior to
Hearing – Notice of Action should include:
Identity of Person at Bureau Who Hospital May Contact
Describe How Hospital May Submit Additional Information
Submit Appeal & Request for Hearing within 35 days of
Notice of Action
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B. PARTICULAR APPEALABLE ACTIONS
1.
CMS OR TENNCARE AUDIT
2. CREDIBLE ALLEGATION OF FRAUD +
INVESTIGATION PENDING
3.
ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
4.
EXCLUSION FROM PARTICIPATION IN TENNCARE
5.
TENNESSEE MEDICAID FALSE CLAIMS ACT
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B. PARTICULAR APPEALABLE ACTIONS
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
Federal regulations prohibit federal
payments to states for providers against
whom there is a pending investigation of
a credible allegation of fraud, unless
there is:
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Good cause not to suspend the payment or
Good cause to suspend the payment only in part
B. PARTICULAR APPEALABLE ACTIONS
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
WHAT IS A CREDIBLE ALLEGATION OF FRAUD?
Factors/Indicia of Reliability The Bureau Examines To Determine Whether
Credible Allegation of Fraud Exists:
Firsthand knowledge
Corroborating witness
Witness conflict (disgruntled employee)
Prior bad acts
Pattern of bad acts
Documentary proof
Admission by provider
Expert Opinion
Indictment by court
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B. PARTICULAR APPEALABLE ACTIONS
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
SUSPENSION OF PAYMENT IN WHOLE OR IN PART
Good Cause To Suspend Payment In Part Or Not At All:
Additional evidence submitted by Hospital
Best interest of TennCare Program
Jeopardize enrollees’ access to services
Apply only to particular type of claims or particular
business unit
Law enforcement requests no suspension because it
does not want Hospital to know the Hospital is being
investigated
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B. PARTICULAR APPEALABLE ACTIONS
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
NOTICE OF ACTION
Opportunity to Present Evidence to the Bureau Prior to
Hearing –
Notice of Action should state that hospital may submit
additional information for the Bureau’s consideration
Submit Appeal & Request for Hearing within 35 days of
Notice of Action
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B. PARTICULAR APPEALABLE ACTIONS
1.
CMS OR TENNCARE AUDIT
2.
CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
3. ELECTRONIC HEALTH RECORD INCENTIVE
PROGRAM (EHR-IP)
4.
EXCLUSION FROM PARTICIPATION IN TENNCARE
5.
TENNESSEE MEDICAID FALSE CLAIMS ACT
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B. PARTICULAR APPEALABLE ACTIONS
3. ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
Incentive payments to Medicaid providers for adopting,
implementing or upgrading electronic health record technology or
for meaningful use of such technology.
Authorized by the American Reinvestment and Recovery Act of
2009.
Enhanced federal financial participation.
Events that May Be Appealed Are:
Hospital Eligibility for Incentives
EHR-IP Incentive Payment Amounts
Whether Hospital Qualifies as Acute Care or Children’s Hospital
Demonstration of Implementing and Meaningfully Using EHR-IP
Technology
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B. PARTICULAR APPEALABLE ACTIONS
3. ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
NOTICE OF ACTION
Opportunity to Present Evidence to the Bureau Prior to
Hearing – Notice of Action should include:
Identity of Person at Bureau Who Hospital May Contact
Describe How Hospital May Submit Additional Information
Submit Appeal & Request for Hearing within 35 days of
Notice of Action
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B. PARTICULAR APPEALABLE ACTIONS
1.
CMS OR TENNCARE AUDIT
2.
CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
3.
ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
5.
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TENNESSEE MEDICAID FALSE CLAIMS ACT
B. PARTICULAR APPEALABLE ACTIONS
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
Mandatory Exclusion – no appeal
Permissive Exclusion – appeal rights
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B. PARTICULAR APPEALABLE ACTIONS
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
MANDATORY EXCLUSION
Mandatory exclusion when HHS or CMS notifies the
Bureau that any of the following apply to the provider:
Conviction of Medicaid-related crimes
Conviction relating to patient abuse
Felony conviction relating to health care fraud
Felony conviction relating to controlled substance
Notice of Action will be issued stating that provider
has no appeal rights.
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B. PARTICULAR APPEALABLE ACTIONS
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
PERMISSIVE EXCLUSION
Conviction related to fraud or to obstruction of an
investigation or audit
Misdemeanor conviction related to controlled substance
License revocation or suspension
Exclusion or suspension under federal or state health care
program
Claims for excessive charges or unnecessary services and
failure of certain organizations to furnish medically necessary
services
Fraud, kickbacks, and other prohibited activities
Continued…
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B. PARTICULAR APPEALABLE ACTIONS
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
PERMISSIVE EXCLUSION (CONTINUED)
Entity controlled by a sanctioned individual
Individual controlling a sanctioned entity
Failure to disclose required information
Failure to supply requested information on subcontractors and
suppliers
Failure to take corrective action
Making false statements or misrepresentation of material facts
Default on health education loan or scholarship obligations
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B. PARTICULAR APPEALABLE ACTIONS
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
PERMISSIVE EXCLUSION - NOTICE OF ACTION
TennCare Rules DO NOT Require that the Notice of Action
give the Hospital information about how to present
evidence to the Bureau prior to hearing.
Try anyway.
Submit Appeal & Request for Hearing within 35 days of
Notice of Action.
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B. PARTICULAR APPEALABLE ACTIONS
1. CMS OR TENNCARE AUDIT
2. CREDIBLE ALLEGATION OF FRAUD + INVESTIGATION PENDING
3. ELECTRONIC HEALTH RECORD INCENTIVE PROGRAM (EHR-IP)
4. EXCLUSION FROM PARTICIPATION IN TENNCARE
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
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B. PARTICULAR APPEALABLE ACTIONS
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
Actions Under the Tennessee Medicaid False Claims Act
May Be Brought 3 Ways:
Attorney General brings the action in court
The Attorney General refers the action to the Bureau for the
Bureau to initiate an administrative hearing
A person (whistleblower) brings the action in court (for the
person and the State)
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B. PARTICULAR APPEALABLE ACTIONS
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
DAMAGES, PENALTIES & COSTS
Bureau May Recover:
Damages: 3 times actual damages
Actual damages are limited to $10,000 (no limit in court actions)
Actual damages may be based upon a statistical random sample utilizing
software that is used to evaluate audit results. (This provision is in the
TennCare Rules, but not in the Tennessee Medicaid False Claims Act.)
Costs of bringing the action: attorneys fees, expenses, etc.
Civil penalties: $1,000 minimum to $5,000 maximum for each
claim that violates the False Claims Act ($5,000 to $25,000 in court actions)
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B. PARTICULAR APPEALABLE ACTIONS
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
WHO MAKES THE ASSESSMENT?
Who Assesses Damages, Civil Penalties and Costs?
LAW – Administrative Judge assesses damages, etc.
TennCare seeks damages, civil penalties and costs in
administrative proceeding
TennCare has no authority to assess damages, etc.
TENNCARE RULES – TennCare assesses damages, etc. in the
Notice of Action
TennCare should not assess damages in Notice of Action
TennCare should seek damages, etc. in Notice of Hearing
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B. PARTICULAR APPEALABLE ACTIONS
5. TENNESSEE MEDICAID FALSE CLAIMS ACT
TENNCARE FINAL ORDER – WHEN IS IT FINAL?
TENNCARE RULES OVERLOOK HOSPITAL’S RIGHT TO APPEAL FINAL TENNCARE ORDER
Law –
Hospital has 60 days to appeal TennCare Final Order
TennCare Final Order cannot be enforced until all appeals are
completed
TennCare Rules –
Bureau may file TennCare Final Order with Davidson County
Chancery Court
TennCare Final Order filed with Chancery Court treated as
agreed upon final and enforceable judgment
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C. ADDITIONAL ACTIONS
SUBJECT TO SANCTIONS,
INCLUDING RECOVERY OF
FUNDS
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C. ADDITIONAL ACTIONS SUBJECT TO SANCTIONS,
INCLUDING RECOVERY OF PAYMENTS
Noncompliance with contractual terms
Medical assistance of a quality below recognized standards
Fraud, willful misrepresentation, or flagrant noncompliance
Hospital fails to reimburse enrollee for covered service paid by enrollee
within 30 days of being ordered by TennCare to do so – Hospital may be
excluded from TennCare if it knowingly bills enrollee for covered service
Overbilling – service not provided, billed to enrollee, not medically
necessary, not documented, exceeds usual and customary
Claims – unbundling
Drugs – improper prescribing or dispensing of drugs, partial or total loss of
DEA certification
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D. KEY POINTS
NEGOTIATION. TennCare Notice of Action should identify
contact-person and provide instructions for submitting
additional information
REPRESENTATION. Corporation cannot represent itself in
administrative hearing – get an attorney experienced in these
kinds of proceedings
TIMING. 35 days to submit Appeal and Request for Hearing
APPEAL. If Hospital attempts to work out the matter with
TennCare before the hearing, appeal the Notice of Action, too
EVIDENCE. Present all evidence at administrative hearing
MCO. Appeals of MCO actions not affected by these Rules
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