New York State's Comptroller's audit finds hundreds of millions of dollars in Medicaid payments went to providers not enrolled in the program

 

New York State Comptroller Thomas P. DiNapoli calls on New York State Department of Health to improve oversight of managed care organizations, seek to recoup money where appropriate.

An audit released on June 4, 2024 by New York State Comptroller Thomas P. DiNapoli found Medicaid managed care organizations made as much as $1.5 billion in improper and questionable payments to providers who did not appear to be enrolled in Medicaid. Generally, under federal and state law providers are supposed to be enrolled, a process that gives DOH assurance that they are equipped and eligible to deliver services.

“The deadline for managed care organizations and their providers to comply with enrollment requirements was over five years ago, yet our audit shows payments to providers that are still not enrolled in Medicaid or have been denied, ” DiNapoli said. “Medicaid is vital to millions of New Yorkers in need of quality health care and the Department of Health must do a better job ensuring the program’s integrity.”

DOH pays for Medicaid in two ways — fee-for-service and managed care. Under fee-for-service, DOH pays Medicaid enrolled providers directly for health care services. Under managed care, DOH pays monthly premiums to Managed Care Organizations (MCOs) for each enrolled Medicaid recipient and in exchange MCOs arrange for services with providers.  

Under the federal 21st Century Cures Act, in-network managed care providers were required to be enrolled in Medicaid by January 1, 2018. Enrollment informs DOH that the providers are licensed, credentialed, and able to provide Medicaid services. MCOs are supposed to terminate providers from their networks who do not enroll in the state’s Medicaid program.

After services are provided and paid by MCOs, they then submit claims that report the services to DOH. Auditors reviewed claims from January 2018 through June 2022 and found $1.5 billion in improper and questionable claims:

1. Five MCOs paid $916 million in claims for services by in-network providers whose IDs did not match with a Medicaid enrolled provider on the date of service.

2. $832.5 million in claims were for services by providers whose Medicaid application was denied or had been withdrawn by DOH either because they failed to meet Medicaid program standards or were automatically withdrawn because the application was missing information. For example, one pharmacy was denied enrollment by OMIG due to unclean conditions, lack of proper supporting documentation, and expired medications on pharmacy shelves, yet received over $57 million in MCO payments. ($212 million of the $832.5 million was included in the $916 million referenced above).

3. $9.6 million in improper MCO payments went to in-network and out-of-network providers who were excluded from or otherwise ineligible for the Medicaid program. ($548,184 of the $9.6 million was included in the $916 million referenced above.)

MCOs are supposed to maintain a network of providers that can deliver comprehensive care to their enrolled population. They submit their contracted providers to DOH’s Provider Network Data System (PNDS) at least quarterly. The data system helps DOH ensure MCOs are meeting requirements of federal and state regulations and the providers are entered into the NYS Provider and Health Plan Look-up website. DOH also uses PNDS to create error reports for MCOs to identify unenrolled in-network providers.

DiNapoli’s audit found PNDS error reports were flawed and did not capture all unenrolled in-network providers. Even when providers were identified on error reports, auditors found MCOs often did not make timely fixes to their submissions to DOH. For example, one physician was flagged on 12 consecutive error reports for one MCO that indicated the physician was not enrolled. The audit concluded that the MCOs’ lack of response could be attributed at least in part to inadequate DOH oversight and communication.

DiNapoli’s audit recommended that DOH improve its oversight of MCO claim payments, ensure MCOs are following the requirements under the Act, and review the payments and providers the audit identified and take appropriate action, including recovering money where appropriate.

DOH generally agreed with most of the audit’s recommendations, and said it is examining the audit findings to determine how to best address the issues raised.

However, in its response, DOH pointed out its limited data hindered auditor’s matching of certain providers. DOH’s data limitations highlight that DOH has not developed the infrastructure to accurately review MCOs’ compliance with the Act. To illustrate, DOH cited a provider from the audit findings that it said was enrolled, but auditors review of DOH’s records confirmed that it was not.

The audit also suggests that the findings may have larger implications. DiNapoli’s auditors reviewed claims from just five MCOs that indicated payments to unenrolled providers — just half of the payments to unenrolled providers identified in the audit period. Accordingly, DOH’s inability to determine the extent of unenrolled or excluded providers who are still doing business with the State puts Medicaid patients and taxpayers at risk.

To download a copy of the Comptroller's audit click Medicaid Program: Managed Care Payments to Unenrolled Providers. 

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The New York City and the New York State Human Rights Laws each protect nonresidents who are not yet employed in the city or state but who proactively sought an actual city- or state-based job opportunity

In response to a question certified to it by the United States Court of Appeals for the Second Circuit, the New York State Court of Appeals held that “the New York City and New York State Human Rights Laws each protect nonresidents who are not yet employed in the city or state but who proactively sought an actual city- or state-based job opportunity.” 

The Circuit Courts' decision is set out below.

 

22-1251

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of June, two thousand twenty-four.

PRESENT: DENNIS JACOBS, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges.

 

NAFEESA SYEED, Plaintiff-Appellant,

v.

BLOOMBERG L.P., Defendant-Appellee.

 

For Plaintiff-Appellant: NIALL MACGIOLLABHUI, Law Office of Niall MacGiollabhui, New York, NY. 

For Defendant-Appellee: ELISE M. BLOOM, Proskauer Rose LLP, New York, NY (Allison L. Martin, Proskauer Rose LLP, New York, NY, Mark W. Batten, Proskauer Rose LLP, Boston, MA, on the brief). 

Appeal from a judgment of the United States District Court for the Southern District of New York (Gregory H. Woods, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the May 10, 2022 judgment of the district court is VACATED and REMANDED for further proceedings.

Nafeesa Syeed appeals from a judgment of the district court dismissing her claims brought under the New York City Human Rights Law (the “NYCHRL”) and the New York State Human Rights Law (the “NYSHRL”) against Bloomberg L.P., her former employer. We assume the parties’ familiarity with the facts and record of the prior proceedings, which we described more fully in our prior opinion certifying certain legal questions to the New York Court of Appeals. See Syeed v. Bloomberg L.P., 58 F.4th 64 (2d Cir. 2023).

On appeal, Syeed argues that the district court erred in holding that job applicants who do not reside or work in New York City or State cannot sue 3 employers under the NYCHRL or NYSHRL for failing to hire or promote them into positions located in the City or State. 

Because this issue was an important and unsettled question of New York law, we certified to the New York Court of Appeals the following question: Whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law or the New York State Human Rights Law if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds. Id. at 71.

In an opinion filed on March 14, 2024, the New York Court of Appeals answered the certified question in the affirmative. See Syeed v. Bloomberg L.P., No. 20, --- N.E.3d ----, 2024 WL 1097279, at *2 (N.Y. Mar. 14, 2024).

Specifically, the court held that “the New York City and New York State Human Rights Laws each protect nonresidents who are not yet employed in the city or state but who proactively sought an actual city- or state-based job opportunity.” Id. at *1. This answer to our certified question contradicts the district court’s reasons for dismissing Syeed’s claims and requires vacatur of that judgment. See J. App’x at 104 (dismissing Syeed’s claims because she did not reside or work in New York City or State).

Accordingly, the judgment of the district court is VACATED and 4 the case is REMANDED for further proceedings consistent with the opinion of the New York Court of Appeals and this order.

We thank the New York Court of Appeals for its assistance in resolving this unsettled question of New York law.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Where the employer provided plaintiff liberal opportunities to switch shifts with other employees so that Plaintiff could avoid working on the Sabbath, the Appellate Division unanimously affirmed Supreme Courts ruling ruled that, under the circumstances presented, Plaintiff failed to meet her prima facie burden of showing discrimination based on her religion

Campbell v City of New York

2024 NY Slip Op 02772

Decided on May 21, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 21, 2024
Before: Kern, J.P., Oing, Kapnick, Higgitt, Michael, JJ.

Index No. 20810/19 Appeal No. 2334 Case No. 2023-04532

[*1]Krystal Campbell, Appellant,

v

The City of New York, Respondent, Deputy Warden of Corrections Sherrie Remburt, et al. Defendants.

The Law Office of Fred Lichtmacher, P.C., New York (Fred Lichtmacher of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Hannah J. Sarokin of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 14, 2023, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established that the denial of plaintiff's request to be awarded a post that freed her from weekend work in order to observe her Sabbath did not constitute a refusal to make a reasonable accommodation for plaintiff's religious belief (see Administrative Code of City of NY § 8—107). The record amply supports that defendant afforded plaintiff liberal opportunities to switch shifts with other employees so that plaintiff could avoid working on the Sabbath. Defendant not only made efforts to locate positions that would meet plaintiff needs, but offered her available temporary assignment for other employees who were out (see Chavis v Wal-Mart Stores, Inc. 265 F Supp 3d 391, 400 [SD NY 2017]). At the time of her request, there was no position available that plaintiff desired and which did not conflict with defendant's seniority rules. In any event, an employer is not obligated to provide an employee with an accommodation that the employee requests or prefers (see Silver v City of N.Y. Dept of Homeless Servs., 115 AD3d 485, 485-486 [1st Dept 2014]).

Moreover, under the circumstances presented, plaintiff has failed to meet her prima facie burden of discrimination based on her religion under the McDonnell Douglas test and the somewhat more flexible "mixed-motive" framework (see Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 [1st Dept 2012]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 41 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). Plaintiff was offered numerous opportunities to manage time off for the Sabbath, and the only adverse actions occurred when plaintiff failed to obtain coverage or employ other methods of excused absences and received AWOL designations as a result.

Plaintiff's failure to oppose the parts of defendant's motion seeking dismissal of the retaliation, aiding and abetting, and employer liability claims "constituted anabandonment of the claim[s]" (Ng v NYU Langone Med. Ctr., 157 AD3d 549, 550 [1st Dept 2018]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 21, 2024