The Legislative Health and Human Services Committee (LHHSC) endorsed legislation this month that gives Medicaid providers who are referred to the Attorney General (AG) by the Human Services Department (HSD) the right to seek judicial review of how the agency arrived at its determination that an allegation of provider fraud is credible. Senate President Pro Tempore Mary Kay Papen (D-38-Dona Ana) is sponsoring the bill as a result of proposed HSD regulations that will go into effect on January 1, 2014, which eliminate any right to an administrative hearing for such providers.
“The focus here is on HSD, since once the provider is referred to the AG, details regarding the alleged fraud will not be disclosed until the AG’s investigation is concluded,” said Sen. Papen. “HSD’s shutdown of several of the state’s behavioral health Medicaid providers on the mere allegation of fraud has adversely impacted the availability of critical services to New Mexicans throughout the state.” Senator Papen said she believes that greater oversight of the department is needed to ensure that honest Medicaid providers do not leave the program just as the Medicaid expansion is taking place, and in the face of a predicted shortage of providers.
According to the bill, referred providers will have 30 days to take the case to district court for a judge to determine whether or not HSD conducted an appropriate and fair investigation of the provider. If not, among other remedies, the court may overturn or set aside HSD’s determination. This would remove the statutory basis for a suspension of payments to the provider under federal law, but not interfere with the ability of the AG to conduct any investigation of the provider that it deems appropriate. According to Sen. Papen, the bill also makes clear that billing mistakes or human error, without more, are not actions that constitute Medicaid fraud.
“Legislation like this is necessary for the good of our citizens and to make New Mexico an attractive place for ethical health care providers to work,” added Sen. Papen.