Presentation before the Missouri Bar’s Health and Hospital Law Committee
November 18, 2011
Markus P. Cicka, J.D., L.L.M. (Health Law)
Director – Missouri Medicaid Audit and Compliance
Missouri Department of Social Services
205 Jefferson St., 2nd Floor, P.O. Box 6500
Jefferson City, MO 65102-6500
(573) 751-3399 (Telephone)
(573) 526-4375 (Fax)
Markus.Cicka@dss.mo.gov
Suspension of Medicaid
Payments Based Upon
Pending Investigations of
Credible Allegations of Fraud
Background
 Section 6402(h)(2) of the Affordable Care Act
 Federal Financial Participation (FFP) in the Medicaid
program shall not be made with respect to any amount
expended for items or services (other than an emergency
item or service, not including items or services furnished in
an emergency room of a hospital) furnished by an
individual or entity to whom a State has failed to suspend
payments under the plan during any period when there is
pending an investigation of a credible allegation of fraud
against the individual or entity as determined by the State,
unless the State determines that good cause exits not to
suspend such payments.
Implementing Regulations – (published February 2, 2011)
 Effective date: March 25, 2011
http://edocket.access.gpo.gov/2011/pdf/2011-1686.pdf
Purpose
 Affordable Care Act – Program Integrity Initiatives
 The new authorities offer more protections to keep those who
are intent on committing fraud out of the programs, identifying
and addressing fraudulent payment issues promptly, and
ensuring the integrity of Medicare, Medicaid, and CHIP.
 Temporarily stopping payments to providers and suppliers in
cases of suspected fraud. Under the new rules, if there has
been a credible fraud allegation, payments should be
suspended while an action or investigation is underway.
 Previously, States had the option to suspend, or withhold
payments, where there was “reliable evidence of fraud.” The
Affordable Care Act lowered the threshold from “reliable
evidence” to “credible allegation.”
Good Cause
 Specific requests by law enforcement that State officials
not suspend (or continue to suspend) payment.
 State determines that other available remedies
implemented by the State could more effectively or
quickly protect Medicaid funds than would implementing
(or continuing) a payment suspension.
 Provider furnishes written evidence that persuades the
State that a payment suspension should be terminated or
imposed only in part.
 State agency determines that certain specific criteria are
satisfied by which recipient access to items or services
would otherwise be jeopardized.
Good Cause (continued)
 A State may, at its discretion, discontinue an existing
suspension to the extent law enforcement declines to
cooperate in certifying that a matter continues to be under
investigation and therefore warrants continuing the
suspension.
 State agency determines that a payment suspension (in whole
or in part) is not in the best interests of the Medicaid program.
 The credible allegation focuses solely on a specific type of
claim or arises from only a specific business unit of a provider
and the State determines and documents that a suspension in
part would effectively insure that potentially fraudulent claims
were not continuing to be paid.
 The State determines that a payment suspension
(whole/partial) is not in the best interests of the Medicaid
program.
Notice of Suspension
 Notify Medicaid Fraud Control Unit (MFCU) or other
appropriate law enforcement agency of payment suspension
 MFCU could request delay of notification to provider
 Notice of Suspension to Providers
 Within 5 days of imposing suspension
 Up to 30 days if requested by law enforcement in writing to
delay such notice
 Law enforcement can renew their requests for delay in
sending the notice to providers up to two times but may
not exceed 90 days
Notice to Providers (continued)
 Content of Notice






Payments are being suspended (Whole/partial) in
accordance with 42 CFR §455.23
General allegations/nature of suspension
Suspension is temporary and cite the circumstances
under which the suspension will be lifted
Specify the types of Medicaid claims or business units of
a provider for which the suspension is effective
Provider has right to submit written evidence for
consideration
Specify applicable State administrative appeals process
and relevant citations to State law
Duration of Suspension
 Payment suspensions are temporary and will not
continue after:
 The State agency or prosecuting authorities determine that
there is insufficient evidence of fraud by the provider; or
 Legal proceedings related to the provider’s alleged fraud
are completed.
Referral to Medicaid Fraud
Control Unit
 Fraud referral to MFCU or other appropriate law enforcement
agency
 In writing
 Must occur no later than the next business day after the
suspension is enacted
 Conform to CMS’ performance standards for suspected
fraud referrals
http://www.cms.gov/FraudAbuseforProfs/downloads/fraud
referralperformancestandardsstateagencytomfcu.pdf
 Fraud referral concerns can be addressed in MOU with State
 Quarterly Certification
 The State must request quarterly certifications from the
MFCU that the matter continues to be under investigation.
Implementation Status
 February 2, 2011 – Final rule published
http://edocket.access.gpo.gov/2011/pdf/2011-1686.pdf
 March 25, 2011 – Information Bulletin and Frequently
Asked Questions issued
http://www.cms.gov/cmcsBulletins/downloads/paymentsuspensions-info-bulletin-3-25-2011.pdf
Documentation
 Maintain for at least 5 years
 Notices of suspension
 Fraud referrals to MFCU or other law enforcement agency
 Quarterly certifications of the status of an investigation
from MFCU
 Notices documenting the termination of a payment
suspension
 Good Cause
 Suspension not imposed; imposed only in part; or
discontinued
 Detailed information regarding the basis for the good
cause and how long the good cause is expected to last
Annual Report to the Secretary
 Categories of Information:
 Nature of suspected fraud
 Basis for suspension
 Outcome of suspension
 Good cause to not suspend, discontinue or suspend only in
part
 Amount of program dollars saved that are associated with
each payment suspension
 Initial report: April 2012
Questions
Markus P. Cicka, J.D., L.L.M. (Health Law)
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