How citizen participation impacts regulation of a profession

I just got back from a meeting where the NYS Office of the Medicaid Inspector General informed a County that there was inadequate documentation of supervision and that a number of claims were therefore ineligible for reimbursement.

At this exit interview I made the following speech to the OMIG auditors:

Thank you for the opportunity to participate in this exit interview.  I have been an occupational therapist for over 25 years and I have experienced many audits from CARF, CORF, JCAHO, NYSDOH, IPRO, and many others. 

Generally when there is an allegation of violation there is also an accompanying citation of the regulation that was violated.  That citation is particularly useful for the provider community because that allows the provider to access the precise information on what is required, and that empowers the provider to offer the information to the auditor.  The information on the alleged violations on lack of adequate supervision are rather imprecise, and as I want to be a compliant Medicaid provider I am asking for some clarification so that I can be sure to provide the appropriate supporting documentation that you require.

The auditor immediately replied and cited 8 CRR-NY 76.6 which can be looked up at this site and which does not include a level of specificity that the auditor was requiring.

Well I appreciate that citation but you are indicating a level of specificity that is not present in the regulation.  In fact, we provided documentation of monthly supervision and in fact all of the daily notes were co-signed, so it is a little confusing what you are looking for precisely.

The auditor interjected that it was HIS INTERPRETATION that the regulation meant that there should be a certain type of documentation and that if he was a parent that is what he would want.

Thank you so much for advising me about what you would like as a parent.  Therapists always appreciate knowing what families would like to see.  However, we tend not to form policy directly based on what some individual might interpret or what would individual might want.  You see, specificity is really helpful because although I doubt that any provider would object to what you are asking for, the fact is that level of specificity is not supported in the regulation you are citing.  When we provide our documentation we follow prevailing regulations, and the documentation that we provided to you is based on the requirements that are ACTUALLY present in the regulation.  In fact, this requirement that you are asking for is a brand new requirement that I have never before heard.  It was not mentioned in the Medicaid Training that was mandated by the State Education Department.  It is not listed in your regulations.  It is not listed in your Medicaid Q&As.  I am sure you can understand our confusion when you are asking for something that we have never heard of before.  We all want to be compliant Medicaid providers, but specificity is rather important, particularly when weighty allegations are in play.

Here I have to cut OMIG some slack, because in fact they are trying to implement some regulations that they did not even write.  In a more perfectly constructed regulatory world there would be more functional communication between the State Education Department and OMIG.  In actuality that doesn't really exist.  Also, supervision requirements have been shifting based on recent laws, so some of the specificity that was being asked for was NOT a requirement at the time of the service delivery in question.

That left the auditor in the position where he reported that he has to consult with State Ed to find out what the supervision requirements are and what was published in the Medicaid Q&As.  Based on information available online for published OMIG audits it would seem that no one has turned back and asked them to provide supporting citation of regulations before.  Either that or Counties roll over and play dead as soon as the bureaucratic hand takes a threatening posture.

I don't know how this will end, but the point of documenting this is so that people understand that if you approach the auditors on their turf and ask them to provide citation of what you are violating, then they really better be in a position to support their allegation.

My best guess is that the rest of the State can expect a Medicaid Alert in the very near future that will even more clearly specify the Medicaid requirements for supervision of occupational therapy assistants in schools.


4/1/13 - Received the following note from a County in email this morning:

"Hi...good news over the weekend. After further review of the COTA claims with [OMIG Officials] in Albany, all our disallowed claims have been cleared. Our MA audit ended up with no disallowances. Thanks for your help with this, we appreciate it."

My staff asked me - you wouldn't put that up on the blog - would you??? - To which you can see my reply. The reason why it goes on the blog is because OMIG has been alleging 'lack of supervision' to Counties and Agencies all over the State. Now although I don't the particulars on all those other cases, if my case was representative then that means OMIG was over-reaching and people should be aware.

I would hope that OMIG would do the following now: 1. Come up with more clear guidelines if they believe this to be an issue and 2. Stick to the real fraud that is going on out there - there is a lot of real fraud out there for them to uncover and they damage their credibility when they beat Counties and agencies up over issues that are not even issues.

DiNapoli and the State Comptroller's office is finding some real fraud that is going on out there - they should focus on those efforts and I suspect that most providers would like to see real efforts to clean up the system instead of witch hunts on people who are actually compliant with the law.

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