Despite the Texas Medical Association's objections, the Texas Health and Human Services Commission (HHSC) adopted new "program integrity rules" that TMA believes give the agency's Office of Inspector General (OIG) too much power and presume that physicians are crooks. The rules took effect Oct. 14.
In September, TMA sent HHSC officials a 35-page letter opposing the rules, which make every Medicaid billing error a possible target for fraud-and-abuse prosecution.
"TMA strongly opposes the proposed rules because they expand OIG's authority, minimize the rights of physicians and other providers, and have a tenor that implies a presumption of wrongdoing," John Holcomb, MD, chair of TMA's Select Committee on Medicaid, CHIP and the Uninsured, wrote. Without due process protections and other important changes in the rules as proposed, he wrote, "the pervasive fear among physicians that they will be incorrectly accused of fraud, waste, or abuse, or denied meaningful recourse in a fraud investigation will continue to contribute to the decline in physician participation in Medicaid."
Dr. Holcomb objected to the proposed rules repealing current language that not all actions resulting in overpayment to a provider are necessarily fraudulent. He asked HHSC to retain that language and reiterate in the new rules that some overpayments are the result of mistakes, not fraud. HHSC responded that the "definitions provided in these rules clearly define the types of violations that may occur, and the rules outline the violations that may or may not include fraud. OIG is aware that various factors can contribute to overpayments and that it may or may not constitute fraud, and does not feel reiteration is necessary."
TMA opposes health care fraud and supports fair processes designed to prevent and detect actual fraud, said Darren Whitehurst, TMA's vice president of advocacy. He said TMA will evaluate its options for asking the legislature to make sure the state conducts fair fraud and abuse investigations and gives appropriate due process protections to physicians and other health care professionals accused of fraud, waste, or abuse. Additionally, TMA will convene a Physicians Medicaid Congress at its fall conference in Austin to discuss ways to attract more physicians to participate in the program and to alleviate physicians' fears of the OIG.
The December issue of Texas Medicine will have more information on the rules and how they impact physicians' practices and how TMA can help physicians avoid problems with state and federal OIGs.
Action, Oct. 15, 2012