New requirements for fraud, abuse compliance

Elizabeth E. Hogue, Esq., Burtonsville, MD

The Deficit Reduction Act (DRA) was signed into law by President Bush on Feb. 8, 2006. The DRA contains new requirements intended to reduce Medicaid fraud and abuse. Home health agencies, private duty agencies, hospices, and home medical equipment (HME) companies must meet new regulatory requirements as early as Jan. 1, 2007.

Specifically, the DRA requires providers that receive $5 million or more in Medicaid funds during a calendar year to educate employees about false claims. As a condition of receipt of Medicaid funds, the states must require providers who meet this revenue threshold to do all of the following:

Establish policies and procedures that include detailed information about:

  • The federal False Claims Act;
  • Administrative remedies for false claims;
  • State laws related to civil or criminal penalties for false claims;
  • Protection for whistleblowers under the federal False Claims Act and state laws governing false claims;
  • The role of whistleblowers in preventing and detecting fraud and abuse in federal health care programs;
  • Providers' mechanisms for detecting and preventing fraud and abuse.

Providers' employee handbooks must also include specific information about:

  • State and federal laws governing false claims;
  • Protections for employees who may become whistleblowers;
  • Internal policies and procedures used by providers to help prevent fraud and abuse.

It also is important for providers to note that compliance with the above requirements is a prerequisite to receipt of reimbursement from state Medicaid programs. That is, providers who do not comply risk losing all Medicaid reimbursement, including reimbursement from Medicaid waiver programs, as well as other funding under state-administered federal health care programs.

Non-compliance may result in retrospective recoupments of Medicaid and other payments.

The above requirements also apply to all of the provider's independent contractors and agents, not just employees.

Providers must be able to demonstrate compliance through detailed documentation.

To date, providers have voluntarily implemented Medicare/Medicaid fraud and abuse compliance plans. The DRA makes compliance plans mandatory for many providers.