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New York’s Mandatory Compliance Regulations are Hot Off the Press

On Wednesday, the New York State Register published the new rules surrounding the New York Office of Medicaid Inspector General (“OMIG”) final rule on mandatory compliance programs, which enumerates specifics including who must comply and how to comply. The rules have also been published in the New York Code, Rules, and Regulations–18 NYCRR § 521. This rule is effective on July 1, 2009 and covered providers must have compliance programs in place satisfying the requirements of the rule within 90 days of this date–September 28, 2009.

According to § 521.1, automatically applies to certain providers (i.e. hospitals, nursing homes, home care services, etc.). It also applies to other entities that provide or submit claims for care, services or supplies under the medical assistance program or entities that should be reasonably expected by a provider to be a substantial portion of their business operations.

Per 521.2, the Substantial portion test is defined as:

(1) When a person, provider or affiliate claims or orders, or has claimed or has ordered, or should be reasonably expected to claim or order at least five hundred thousand dollars ($500,000) in any consecutive twelve-month period from the medical assistance program;
(2) when a person, provider or affiliate receives or has received, or should be reasonably expected to receive at least five hundred thousand dollars ($500,000) in any consecutive twelvemonth period directly or indirectly from the medical assistance program; or
(3) when a person, provider or affiliate who submits or has submitted claims for care, services, or supplies to the medical assistance program on behalf of another person or persons in the aggregate of at least five hundred thousand dollars ($500,000) in any consecutive twelvemonth period.

Notably, the definition would include not only those providers receiving $500,000 in Medicaid funds, but also those providers or entities that claim at least $500,000 from the medical assistance program.

Every covered provider is required to do the following:
1. Implement a compliance program 2. Initially certify the compliance program with the OMIG and recertify each year 3. Elements of the compliance program a. Have written policies and procedures in place describing the compliance expectations b. Designate an employee vested with the responsibility of the day-to-day operation of the compliance program c. Train and educate all affected employees d. Have communication lines to the reasonable compliance position e. Have in place disciplinary policies for noncompliance f. Ensure a system for routine identification of compliance risk areas g. Ensure a system for responding to compliance issues as they are raised h. Have in place a non-intimidation and non-retaliation policy for participation in the compliance program The commissioner of health and the Medicaid Inspector General determine if a compliance program is effective and appropriate.

For more information, please call Abby Pendleton, Esq., Robert Iwrey, Esq., Adrienne Dresevic, Esq., Carey F. Kalmowitz, Esq. or Jessica L. Gustafson, Esq. at (248) 996-8510 or visit The HLP website.

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