Last Friday, Texas Health and Human Services sent an email notification that OIG was proposing a new rule (bottom of page) concerning “recoupment of overpayments identified by inspection” and wants public feedback by August 11.
Public feedback? Well, not everyone concerned gets these notifications. You have to sign up for them. Also you need to be somewhat of a lawyer to read and understand these rules because they comprise the Texas Administrative Code. So it is unlikely that many providers affected by this rule will hear about it much less give feedback before it goes into effect.
That is why this article is being written. You, as a Medicaid provider, need to know about this new rule and give feedback either by your lawyer or yourself to Texas HHS before August 11.
Feedback is sent by email to IG_Rules_Comments_Inbox@hhs.texas.gov.
What is wrong with it?
So what is wrong with this proposed rule? It is very similar to §371.1719. Recoupment of Overpayments Identified by Audit.
There is quite a bit wrong.
1. Section (b)(1) states: “A person who receives a request for records and documentation for an OIG inspection must provide the records and documentation to the OIG within the time period requested by the OIG or seven calendar days from the date of receipt of the request, whichever is later, except when an element of surprise is critical to the inspection objective…”
A mandatory seven-day timeframe is established for furnishing records to the OIG, irrespective of the request’s size, nature, or intricacy. Given that OIG record inquiries frequently encompass dozens, if not hundreds, of patient files spanning up to five years per (c)(2), adhering to this deadline imposed by the OIG is generally impossible. There is a penalty provision. See #3, below.
2. Section (b)(2) states: “When requested, a person subject to an OIG inspection must submit a signed and notarized OIG-approved records affidavit that properly authenticates the records provided to OIG as business records pursuant to Texas Rules of Evidence Rule 803(6) and Rule 902(10).”
“OIG approved” means the affidavit says the attached records “include the entire contents and substance of the files and documentation” provided. This phrasing prevents any supplementation or amendment to the materials provided. Consequently, signing such a records affidavit carries legal ramifications that may compel providers to engage an attorney even for simple records requests.
3. Under Section (b)(3) which states: ” Failure to produce requested records and affidavits may result in an OIG enforcement action under this chapter.”
Not providing the full documents within seven days can lead to an enforcement action such as a payment hold or other restrictions.
4. Under Section (f)(4), a request for an administrative appeal hearing on a final inspection report that the provider disagrees with must be filed “no later than 15 calendar days after receipt of the final inspection report” and must include (b): “specify the issues, findings, or legal authority being challenged and the basis for each challenge.”
If a provider doesn’t do this correctly, OIG can challenge the request for an appeal and ask for it to be dismissed because the provider’s request did not fulfill the rule. Ouch!
5. Under Section (f)(5), the appeal is heard by the HHSC Appeals Division not the State Office of Administrative Hearings.
Is this really due process?
This new rule seems another way to claw back payments as providers won’t meet the timetable. Provider costs will increase again as they must hire an attorney to ensure the rule is followed exactly.
Sometimes you have to ask if it is worth being a Medicaid provider.