Current through Register Vol. 46, No. 52, December 24, 2024
WHEREAS, the State has a continuing responsibility to
ensure that funds expended under the Medicaid program are used appropriately
and efficiently to promote public health;
WHEREAS, fraud, waste and abuse by providers and recipients
in the Medicaid program reduces the ability of the State to properly fund the
program and results in harm to the health of the State's citizens;
WHEREAS, controlling fraud, waste and abuse in the Medicaid
program includes preventing, detecting, and investigating such fraud, waste and
abuse, and referring such fraud, waste and abuse for civil or criminal action
where appropriate;
WHEREAS, the system by which New York State currently
controls Medicaid fraud, waste and abuse was created in response to the
exposure of widespread and shocking abuses in the State's nursing home industry
by the Temporary State Commission on Living Costs and the Economy in late
1974;
WHEREAS, the current system is based largely on formal and
informal agreements among the State Department of Health, the Medicaid Fraud
Control Unit of the State Department of Law, the Office of the State
Comptroller and other local, State, and federal agencies whose clients are
served by the Medicaid program, or who are otherwise responsible for the
control of Medicaid fraud, waste and abuse;
WHEREAS, New York State's current efforts to control
Medicaid fraud, waste and abuse range from investigating providers before they
enroll in the Medicaid program, to removing providers from the program when it
is determined that there are clear patient safety issues, and to identifying
fraud, waste and abuse on the part of both providers and recipients;
WHEREAS, as a result of these activities, and due to
tremendous investments in detection systems upgrades and improvements, the
Department of Health has recouped, withheld or avoided the unnecessary spending
of approximately $9.3 billion in the Medicaid program from 1999 through
2004;
WHEREAS, we must nonetheless continue to expand and build
upon current efforts to control fraud, waste and abuse in the Medicaid
program;
WHEREAS, changes in federal and state laws, as well as in
the health care industry and in available technology, suggest that it is time
for a comprehensive review of the State's fraud, waste and abuse control
infrastructure;
WHEREAS, toward that end, I have appointed an outside
expert to conduct such a review and recommend any fundamental, long-term
structural changes necessary to further improve the State's Medicaid fraud,
waste and abuse control efforts;
WHEREAS, while we examine and prepare to implement such
fundamental, long-term structural changes, the immediate coordination of the
State's efforts to control Medicaid fraud, waste and abuse at all levels of
government is essential;
NOW, THEREFORE, I, GEORGE E. PATAKI, Governor of the State
of New York, by virtue of the authority vested in me by the Constitution and
the Laws of the State of New York, do hereby direct by Executive Order, the
following:
1. There is hereby
established in the Executive Department the position of Medicaid Inspector
General of the State of New York, who shall be appointed by, and serve at the
pleasure of, the Governor. The responsibilities of the Medicaid Inspector
General shall include:
a. Coordinating the
Medicaid fraud, waste and abuse control activities of State executive agencies
whose clients are served by Medicaid, including the Department of Health, the
Office of Mental Health, the Office of Mental Retardation and Developmental
Disabilities, the Office of Alcoholism and Substance Abuse Services, the Office
of Children and Family Services and the State Education Department;
b. Developing multi-agency investigation
teams to work in concert with the Office of the Attorney General, the Office of
the State Comptroller, the Office of the Welfare Inspector General and county
law enforcement officials;
c.
Reporting directly to the Secretary to the Governor on progress and
accomplishments;
d. Recommending
legislative, policy and structural changes needed to strengthen the integrity
of the Medicaid program;
e.
Focusing attention and State resources on efforts to control Medicaid fraud,
waste and abuse;
f. Ensuring
continual improvement in the coordination and effectiveness of agency
performance;
g. Periodically
consulting with the Medicaid Fraud Control Advisory Council established herein
concerning its recommendations regarding Medicaid fraud, waste and abuse
control;
h. Jointly developing,
implementing and integrating new technologies for assisting in the control of
Medicaid fraud, waste and abuse; and
i. Identifying the staff in each
participating agency who are primarily accountable for specific Medicaid fraud,
waste and abuse control outcomes, and recommending the structural changes and
logistical support necessary to ensure such accountability.
2. Pursuant to section
six of the
Executive Law and other applicable laws, the Medicaid Inspector General shall
have the power to:
a. subpoena and enforce
the attendance of witnesses;
b.
administer oaths or affirmations and examine witnesses under oath;
c. require the production of any books and
records deemed relevant or material to any investigation, examination or
review;
d. examine and copy or
remove documents or records of any kind prepared, maintained or held by any
agency whose clients are served by the Medicaid program, or who are otherwise
responsible for the control of Medicaid fraud, waste and abuse;
e. monitor the implementation by agencies
whose clients are served by the Medicaid Program, or who are otherwise
responsible for the control of Medicaid fraud, waste and abuses, of any
recommendations made by Medicaid inspector general;
f. perform any other functions that are
necessary or appropriate to fulfill the duties and responsibilities of
office.
3. There is
hereby established in the Executive Department a Medicaid Fraud Control
Advisory Council. The members of the Medicaid Fraud Control Advisory Council
shall be appointed by, and serve at the pleasure of, the Governor. The Governor
shall designate the chair from among the members. The Advisory Council shall be
comprised of at least seventeen members, including: a representative from the
New York State Association of Counties; a representative from the District
Attorney's Association of the State of New York; and a representative from each
of the following state agencies:
a. State
Department of Health;
b. Medicaid
Fraud Control Unit of the State Department of Law;
c. Office of the State Comptroller;
d. State Commission on Quality of Care &
Advocacy for the Disabled;
e. State
Department of Insurance;
f. State
Office of Temporary and Disability Assistance;
g. State Office of Mental Health;
h. State Office of Mental Retardation and
Developmental Disabilities;
i.
State Office of Alcoholism and Substance Abuse Services;
j. State Office of Children and Family
Services;
k. State Division of the
Budget;
l. State Office of Welfare
Inspector General;
m. State
Education Department;
n. State
Division of Criminal Justice Services; and
o. State Office for Technology.
4. The Advisory Council shall
advise the Medicaid Inspector General and other State agencies in regard to
efforts to control Medicaid fraud, waste and abuse. In this regard, the
Advisory Council shall receive the cooperation of all State agencies and shall,
in conjunction with the Medicaid Inspector General:
a. Develop recommendations for improved
coordination among those agencies responsible for controlling Medicaid fraud,
waste and abuse;
b. Develop
recommendations and proposed legislation for additional Medicaid fraud, waste
and abuse control activities;
c.
Identify Medicaid fraud, waste and abuse control activities in other states and
at the federal level to determine their applicability for New York;
and
d. Evaluate new technologies to
be used to control Medicaid fraud, waste and abuse.
5. The State Medicaid Fraud Control Advisory
Council shall prepare an annual report for the Governor, Temporary President of
the State Senate and Speaker of the State Assembly. This report shall provide
an overview of the State's efforts to control Medicaid fraud, waste and abuse
during the previous state fiscal year and shall include recommendations for
legislation and other initiatives. The report shall be issued on October 1,
2006 and annually thereafter.
Signed: George E. PatakiDated: August 5, 2005
WHEREAS, in July 2005, I appointed an outside expert to
conduct a comprehensive review of New York State's Medicaid system and
recommend fundamental, long-term structural changes and reforms to improve
efforts to control fraud, waste and abuse;
WHEREAS, by Executive Order 140, I created the position of
the Medicaid Inspector General to coordinate Medicaid fraud, waste and abuse
control activities of State executive agencies and to recommend legislative,
policy and structural changes needed to strengthen the integrity of the
Medicaid program;
WHEREAS, both the Medicaid Inspector General and the
outside expert who I appointed have conducted an extensive review of New York's
Medicaid system and the systems of other states, in addition to having the
input of the Nelson A. Rockefeller Institute of Government, private sector
insurers and consultants, provider groups, medical professionals and
information technology analysts;
WHEREAS, both the outside expert and the Medicaid Inspector
General found that the current Medicaid fraud, waste and abuse control
activities conducted by the Department of Health's Office of Medicaid
Management have been successful in recouping, withholding or avoiding $12.8
billion of unnecessary spending since 1999;
WHEREAS, notwithstanding the success of these efforts, the
current system suffers from fragmentation among the State agencies and offices
charged with fraud fighting responsibilities, insufficient focus on specific
auditing and fraud prevention goals, and a need for greater coordination and
communication among the State agencies engaging in fraud, waste and control
activities;
WHEREAS, as part of our continuing efforts to improve New
York's Medicaid program, it is essential to separate the Medicaid fraud, waste
and abuse control activities from the Department of Health's Office of Medicaid
Management and other Executive agencies into an independent entity;
WHEREAS, establishing an independent fraud-fighting entity
within the Department of Health will build on our State's accomplishments in
preventing Medicaid fraud, waste and abuse by:
(i) prioritizing and focusing fraud, waste
and abuse control activities;
(ii)
creating a single point of leadership of and responsibility for such
activities;
(iii) building and
maintaining an integrated system of communication among all involved agencies
with fraud, waste and abuse control responsibilities; and
(iv) maximizing the use of all available
State resources for such activities;
NOW, THEREFORE, I, GEORGE E. PATAKI, Governor of the State
of New York, by virtue of the authority vested in me by the Constitution and
the Laws of the State of New York, do hereby direct the following:
1. There is hereby established, within the
Department of Health, the Office of the Medicaid Inspector General, which shall
undertake and be responsible for the Department of Health's duties as the
single state agency for the administration of the Medicaid program in New York
State with respect to fraud, waste and abuse.
a. The responsibilities of the Office of the
Medicaid Inspector General shall include but not be limited to the Medicaid
audit functions pursuant to sections
364 and
368-c of
the Social Services Law, and the prevention of Medicaid fraud, waste and abuse
functions pursuant to sections
145-a and
145-b of
the Social Services Law (transferred to the New York State Department of Health
from the former Department of Social Services pursuant to subdivision (e) of
section 122 of Chapter 436 of the Laws of 1997).
b. The head of the Office of the Medicaid
Inspector General shall be the Medicaid Inspector General of the State of New
York, who shall be appointed by, and serve at the pleasure of, the Governor.
The Medicaid Inspector General shall be compensated within the limits of funds
available therefor, and shall report directly to the Secretary to the
Governor.
2. The
function, duties and responsibilities of the Medicaid Inspector General shall
include:
a. appointing such deputies,
directors, assistants and other officers and employees as may be needed for the
performance of his or her duties and may prescribe their powers and fix their
compensation within the amounts appropriated therefor;
b. conducting and supervising activities to
prevent, detect and investigate Medicaid fraud, waste and abuse amongst the
following:
(i) the Office of Mental Health,
(ii) the Office of Mental
Retardation and Developmental Disabilities,
(iii) the Office of Alcoholism and Substance
Abuse Services,
(iv) the Office of
Temporary and Disability Assistance,
(v) the Office of Children and Family
Services, and
(vi) the State
Education Department;
c.
to the greatest extent possible, coordinating activities to prevent, detect and
investigate fraud, waste and abuse amongst the following:
(i) the Office of Mental Health,
(ii) the Office of Mental Retardation and
Developmental Disabilities,
(iii)
the Office of Alcoholism and Substance Abuse Services,
(iv) the Office of Temporary and Disability
Assistance,
(v) the Office of
Children and Family Services,
(vi)
the State Education Department,
(vii) the fiscal agent employed to operate
the Medicaid Management Information System,
(viii) the Deputy Attorney General for
Medicaid Fraud Control, and
(ix)
the State Comptroller;
d. keeping the Secretary to the Governor and
the heads of agencies with responsibility for the administration of the
Medicaid program apprised of efforts to prevent, detect, investigate, and
prosecute fraud, waste and abuse within the Medicaid system;
e. pursuing civil and administrative
enforcement actions against those who engage in fraud, waste, abuse or other
illegal or inappropriate acts perpetrated within the Medicaid program,
including providers, contractors, agents, recipients, individuals or other
entities involved directly or indirectly with the provision of Medicaid care,
services and supplies;
f. making
information and evidence relating to suspected criminal acts which he or she
may obtain in carrying out his or her duties available to the Deputy Attorney
General for Medicaid Fraud Control pursuant to the requirements of Federal law,
as well as to other law enforcement officials where appropriate, and consulting
with the Deputy Attorney General for Medicaid Fraud Control, federal
prosecutors, and local district attorneys to coordinate criminal investigations
and prosecutions;
g. recommending
and implementing policies relating to the prevention and detection of fraud,
waste and abuse;
h. monitoring the
implementation of any recommendations made by the Office of the Medicaid
Inspector General to agencies or other entities with responsibility for
administration of the Medicaid program;
i. receiving and investigating complaints of
alleged failures of state and local officials to prevent, detect and prosecute
fraud, waste, and abuse;
j. working
with counties that identify questionable claims indicating the potential
existence of fraud, waste or abuse, including establishing cooperative
agreements to review, refer, investigate and/or audit such claims;
and
k. performing any other
functions that are necessary of appropriate to fulfill the duties and
responsibilities of the office.
3. Pursuant to section
six of the
Executive Law and other applicable laws, the Medicaid Inspector General shall
have the power to:
a. subpoena and enforce the
attendance of witnesses;
b.
administer oaths or affirmations and examine witnesses under oath;
c. require the production of any books and
records deemed relevant or material to any investigation, examination or
review;
d. examine and copy or
remove documents or records of any kind related to the Medicaid program or
necessary for the Medicaid Inspector General to perform its duties and
responsibilities that are prepared, maintained or held by any agency the
patients or clients of which are served by the Medicaid program, or which is
otherwise responsible for the control of Medicaid fraud, waste and abuse;
and
e. perform any other functions
that are necessary or appropriate to fulfill the duties and responsibilities of
office.
4. In addition
to the authority otherwise provided by this Executive Order, the Medicaid
Inspector General, in carrying out the provisions of this Order, is authorized:
(i) to have full and unrestricted access to
all records, reports, audits, reviews, documents, papers, recommendations or
other material prepared, maintained, held by or available to all New York State
governmental entities and local social services districts relating to programs
and operations with respect to which the Inspector has responsibilities under
this Order;
(ii) to make such
investigations relating to the administration of the programs and operations of
the Medicaid system as are, in the judgment of the Medicaid Inspector General,
necessary or desirable; and
(iii)
to request such information, assistance and cooperation from any federal, state
or local governmental department, board, bureau, commission, or other agency or
unit thereof as may be necessary for carrying out the duties and
responsibilities enjoined upon the Inspector General by this Order. State
agencies and local social services districts are hereby authorized and directed
to provide such information, assistance and cooperation. Executive agencies
shall coordinate and facilitate the transfer of functions and positions, and
any documents and records necessary and related to the transfer of such
functions and positions, from such agencies to the Medicaid Inspector General
as necessary and in accordance with applicable law.
George E. PatakiFebruary 2, 2006
[FN[DAGGER]] [Revoked and superseded by Executive Order No.
140.1 (George E. Pataki), infra.]
[FN*] [Revokes and supersedes Executive Order No. 140,
(George E. Pataki), supra.]
[FN[DAGGER]] [Revoked by Executive Order No. 5 (Eliot
Spitzer), infra.]
[Revoked by Executive Order No. 9 (David A. Paterson),
infra.]
[Revoked by Executive Order No. 2 (Andrew M. Cuomo),
infra.]
