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 The leading web portal for pharmacy resources, news, education and careers November 20, 2017
Pharmacy Choice - Pharmaceutical News - Notice of Opportunity for Hearing on Compliance of Alabama State Plan Provisions Concerning Provision of Terminating Coverage and Denying... - November 20, 2017

Pharmacy News Article

 2/17/17 - Notice of Opportunity for Hearing on Compliance of Alabama State Plan Provisions Concerning Provision of Terminating Coverage and Denying...

Notice of Opportunity for Hearing on Compliance of Alabama State Plan Provisions Concerning Provision of Terminating Coverage and Denying Reenrollment to Otherwise Eligible Individuals Based on a Determination of Fraud or Abuse With Titles XI and XIX (Medicaid) of the Social Security Act

CLOSING DATE: Requests to participate in the hearing as a party must be received by the presiding officer by March 20, 2017.

FOR FURTHER INFORMATION CONTACT: Benjamin R. Cohen, Hearing Officer, Centers for Medicare & Medicaid Services, 2520 Lord Baltimore Drive, Suite L, Baltimore, MD 21244.

SUPPLEMENTARY INFORMATION: This notice announces the opportunity, pursuant to section 1904 of the Social Security Act (the Act), for an administrative hearing concerning the finding of the Administrator of the Centers for Medicare & Medicaid Services (CMS) that the State of Alabama is significantly out of compliance with the requirements of section 1902 of the Act in administering its state plan because Alabama fails to promptly enroll and extend coverage to eligible individuals who were subject to an agency determination that they previously engaged in fraud or program abuse, but were never convicted of any act of fraud. This finding will be the basis for withholding federal financial participation (FFP) of one percent of the Alabama Medicaid agency's quarterly claim for administrative expenditures, an amount that was developed based on the proportion of total state Medicaid expenditures that are used for expenditures for eligibility determinations. The withholding percentage will increase by one percentage point for every quarter in which the Alabama Medicaid agency remains out of compliance. The withholding will end when the Alabama Medicaid agency fully and satisfactorily implements a corrective action plan to bring its procedures for processing eligibility determinations under its Medicaid program into compliance with the federal requirements.

The CMS supports state efforts to appropriately address fraud and abuse, and federal law and regulations provide mechanisms to do so. Specifically, federal law and regulations allow states to impose penaltiesincluding suspension, fines and imprisonmenton individuals who are convicted of concealing or failing to disclose information. Federal regulations also require that states investigate instances of beneficiary abuse of program rules and, if confirmed, take appropriate action authorized under the state plan. These federal provisions both provide the state with a mechanism to address fraud and abuse and take precedence over state law and policies.

The CMS has found that Alabama's policies and practices violate sections 1902(a)(8) and 1902(a)(10) of the Act requiring states to provide Medicaid to all individuals who meet the eligibility criteria required under the state plan, consistent with title XIX of the Act and federal regulations. Specifically, re-enrollment in Alabama's Medicaid program is denied to otherwise-eligible individuals who were terminated based on an agency determination that they previously engaged in fraud or abuse for at least one year or until restitution is made, whichever is later. Alabama's practice of recouping funds or otherwise imposing financial penalties or barring otherwise eligible individuals from Medicaid coverage, absent a criminal conviction, also is not consistent with or authorized by section 1128B(a) of the Act, regulations at 42 CFR 455.15 and 455.16 or Alabama's Medicaid state plan.

Alabama's practices were not identified in Alabama's approved state plan, or otherwise submitted to CMS for review. CMS has raised this issue previously with the state, as we discuss below, but has been unable to resolve the state's non-compliance.

Alabama will have an opportunity for a hearing on these findings. Alabama will have 30 days to request such a hearing. If a request for hearing is timely submitted, the hearing will be convened by the designated hearing officer below, no later than 60 days after the date of this Federal Register notice, or a later date by agreement of the parties and the Hearing Officer, at the CMS Regional Office in Atlanta, Georgia, in accordance with the procedures set forth in federal regulations at 42 CFR part 430, subpart D. The Hearing Officer also should be notified if the Alabama Medicaid agency requests a hearing but cannot meet the timeframe expressed in this notice. The Hearing Officer designated for this matter is: Benjamin R. Cohen, Hearing Officer, Centers for Medicare & Medicaid Services, 2520 Lord Baltimore Drive, Suite L, Baltimore, MD 21244.

After a final determination that the Alabama Medicaid agency has failed to comply substantially with these requirements in the administration of its state Medicaid plan, made after a hearing or absent a hearing request, consistent with the provisions of section 1904 of the Act, CMS will begin withholding federal funds as specified above. Such withholding will continue until the Alabama Medicaid agency comes into compliance with the requirements described in sections 1902(a)(8) and 1902(a)(10) of the Act, requiring states to provide Medicaid to all individuals who meet eligibility criteria required under the state plan, and with section 1128B(a) of the Act and regulations at 42 CFR 455.15 and 455.16, requiring that the agency refer cases of suspected fraud to appropriate law enforcement, conduct a full investigation of suspected abuse and limit sanctions to those permitted under the regulations or specified in its approved state plan.

Details about the facts relating to Alabama's practices are set forth in the letter notifying Alabama of the Administrator's finding. The following issues will be considered at any requested hearing:

1. Whether the penalties set forth in Section 22-6-8 of the Alabama Code are consistent with the requirements of sections 1902(a)(8) and 1902(a)(10) of the Act.

2. If so, whether an administrative finding of the type described in section 22-6-8 of the Alabama Code, without a conviction in a court of law, is a sufficient basis to impose such penalties consistent with the requirements of sections 1902(a)(8) and 1902(a)(10) of the Act, and the remedies set forth in sections 1128 and 1128B of the Act, regulations at 42 CFR 455.15 and 455.16 and the Alabama Medicaid state plan.

Beginning in early February 2016, CMS notified Alabama that the state's actions are inconsistent with federal statutory and regulatory requirements. CMS has communicated with the state both in writing and by phone on several occasions since that time, including a July 6, 2016, notice of non-compliance in which CMS advised the Alabama Medicaid agency that if it did not submit a corrective action plan (CAP) to come into compliance with federal policy and the approved state plan within 30 days of the notice, formal compliance proceedings would be initiated. Alabama has consistently defended its policy, including in an August 1, 2016, letter responding to the notice of non-compliance in which the Alabama Medicaid agency requested reconsideration of CMS' determination and a stay of the 30 day deadline for submission of the CAP. CMS reviewed the Alabama Medicaid agency's response and, for the reasons stated above, has determined the Alabama Medicaid agency is not in compliance with the federal statute and regulations or Alabama's Medicaid state plan.

The letter notifying Alabama of the details concerning this compliance issue, the proposed withholding of FFP, opportunity for a hearing, and possibility of postponing and ultimately avoiding withholding by coming into compliance, reads as follows:

Ms. Stephanie Azar

Commissioner

Alabama Medicaid Agency

501 Dexter Avenue

Montgomery, AL 36116

Dear Ms. Azar:

This letter provides notice and an opportunity for a hearing on a finding by the Centers for Medicare & Medicaid Services (CMS) of significant noncompliance with applicable statutory and regulatory requirements in the operation of the Alabama Medicaid program, because the Alabama Medicaid agency inappropriately denies coverage to otherwise eligible individuals who were terminated based on an agency determination that they previously engaged in fraud or abuse.

The CMS supports state efforts to appropriately address fraud and abuse, and federal law and regulations provide mechanisms to do so. As described further in this letter, federal law and regulation allow states to impose penaltiesincluding suspension, fines and imprisonmentfor individuals who are convicted of concealing or failing to disclose information. Federal regulations also require that states conduct a full investigation into instances of beneficiary abuse of program rules and, if confirmed, take appropriate action authorized under the state plan. Except in such conditions, states are required by federal statute to promptly enroll and provide medical assistance to all eligible individuals. These federal provisions, discussed in more detail below, take precedence over state law and policies.

The CMS has learned in discussions with state agency staff that Alabama's policies and practices are not consistent with the federal statutory framework governing instances of alleged beneficiary fraud or abuse. Specifically, Alabama denies enrollment in Alabama's Medicaid program to otherwise-eligible individuals who were never convicted of wrong-doing, but were the subject of an agency determination that they previously engaged in fraud or abuse, for at least one year or until restitution is made, whichever is later. This practice is in violation of sections 1902(a)(8) and 1902(a)(10) of the Social Security Act (the Act) requiring states to provide Medicaid to all individuals who meet the eligibility criteria required under the state plan, consistent with title XIX of the Act and federal regulations. Furthermore, Alabama's practice of recouping funds or otherwise imposing financial penalties or barring otherwise eligible individuals from Medicaid coverage, absent a criminal conviction, is not consistent with or authorized by section 1128B(a) of the Act, regulations at 42 CFR 455.15 and 455.16 or Alabama's Medicaid state plan.

This is a summary of a Federal Register article originally published on the page number listed below

Notice of opportunity for a hearing; compliance of Alabama Medicaid State Planprovision of providing medicaid to all individuals who meet eligibility criteria, and requirements for handling of suspected fraud and abuse by providers, applicants, and beneficiaries.

Citation: "82 FR 11034"

Federal Register Page Number: "11034"

"Notices"



(c) 2017 Federal Information & News Dispatch, Inc.

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