N.Y. Comp. Codes R. & Regs. tit. 18 § 521-3.4

Current through Register Vol. 46, No. 18, May 1, 2024

Section 521-3.4 - Self-Disclosure Program

(a) General. Pursuant to subdivision 7 of section 363-d of the Social Services Law, the OMIG's SelfDisclosure Program is the process by which persons who have identified an overpayment under the MA program report, return and explain overpayments to the MA program. Persons required to report, return and explain overpayments pursuant to section 521-3.3 of this SubPart shall submit information regarding the overpayment to OMIG and make repayment in the form and manner set forth in this section.

(b) Self-Disclosure Program - General Provisions.

(1) Eligibility. A person is eligible to participate in the Self-Disclosure Program if:

(i) the person is not currently under audit, investigation, or review by OMIG. If the person is under audit, investigation, or review, but the overpayment being disclosed does not relate to the existing audit, investigation, or review the person shall be eligible to participate, with respect to the overpayment being disclosed. For purposes of this paragraph, an audit, investigation, or review includes, but is not limited to, Parts 515, 516, 517, 518 and 521 of this Title;

(ii) the person is disclosing an overpayment and related conduct that OMIG has not identified at the time of the disclosure;

(iii) the overpayment and related conduct are reported by the deadline specified in paragraph (1) of subdivision (b) of section 521-3.3 of this SubPart; and

(iv) the person is not currently a party to or the subject of any criminal investigation, related to their participation in the MA program, being conducted by the MFCU or an agency of the United States Government or any political subdivision thereof.

(2) For persons eligible to participate in the Self-Disclosure Program, pursuant to paragraph (1) of this subdivision, OMIG, in its sole discretion, after a written request from an eligible person participating in the Self-Disclosure Program, may:

(i) waive the imposition of interest on the amount of the overpayment, in whole or in part;

(ii) permit repayment through installments pursuant to an SDCA;

(iii) in accordance with the provisions of subdivision 18 of section 32 of the Public Health Law, consider the person's reporting and returning overpayments as a mitigating factor in the determination of an administrative enforcement action; and

(iv) for persons subject to the provisions of SubPart 521-1 of this Part and in accordance with section 363-d of the Social Services Law, consider the person's reporting and returning overpayments as a factor in determining whether the person has adopted and implemented an effective compliance program.

(3) Regardless of eligibility, if the person has determined that they have received an overpayment pursuant to section 521-3.3 of this SubPart, the person shall submit a SelfDisclosure Statement pursuant to subdivision (c) of this section.

(4) If OMIG determines that a person is ineligible, it shall notify the person of this determination in writing, in accordance with the requirements of subdivision (a) of section 521-3.6 of this SubPart.

(c) Self-Disclosure Statement.

(1) As a condition of participation in the Self-Disclosure Program, the person shall apply by the submission of a self-disclosure statement, cooperate and furnish any information requested, including any additional data, documentation, or information requested by the OMIG needed to confirm the overpayment.

(2) To participate in the Self-Disclosure Program, a person shall submit a statement which shall contain the following information:

(i) An estimate of the amount of the overpayment. The person shall calculate the estimated overpayment and provide information to OMIG which supports the calculated overpayment amount. OMIG has the sole discretion to approve the methodology used for the calculation and to determine the overpayment amount and interest if applicable;

(ii) A detailed explanation of the reason the person received the overpayment, which shall, at a minimum include:

(a) a description and explanation of the circumstances that gave rise to the overpayment;

(b) how the circumstances giving rise to the overpayment were discovered;

(c) the date the overpayment was identified;

(d) how the person calculated the amount of the overpayment;

(e) the date(s) the overpayment(s) were received; and

(f) the action taken to correct the error which caused the overpayment.

(iii) the person's contact information;

(iv) data file, in the form and format specified by OMIG;

(v) whether the person is requesting to repay through installment payments;

(vi) whether the person is requesting the waiver of any applicable interest;

(vii) the person's agreement to return the full amount of the overpayment and interest if applicable, as determined by OMIG; and

(viii) any other data, documentation, or information OMIG shall require through the issuance of guidance or in response to its review of the submission.

(3) The Self-Disclosure Statement shall be signed by the person's compliance officer, where the person is a required provider pursuant to SubPart 521-1 of this Part. Where the person is not a required provider pursuant to SubPart 521-1 of this Part, the Self-Disclosure Statement may be signed by one of the following, the person's chief executive officer, chief operating officer, a senior manager of the person, or the person, where the person is a sole practitioner.

(4) A person requesting to repay through installment payments may be required to furnish OMIG with financial records and other documentation in support of the request. OMIG shall approve or reject a person's request based on a review of the person's financial documentation, participation in the MA program, and any other factors OMIG identifies.

(5) If OMIG determines that no overpayment was made, it shall notify the person in writing of the determination.

(6) A person who has received and disclosed an overpayment or has received notice of the overpayment amount due, and interest if applicable, pursuant to section 521-3.5 of this SubPart is required to return the overpayment and interest if applicable, in accordance with section 521-3.3 of this SubPart.

(d) Review of Accepted Self-Disclosures.

(1) OMIG shall acknowledge receipt and review the Self-Disclosure Statement and consider any written requests made pursuant to paragraph (2) of subdivision (b) of this section and shall complete a preliminary review within twenty (20) days of the submission. The deadline to report, return and explain shall be tolled, in accordance with the provisions of subdivision (b) of section 521-3.3 of this SubPart, from the date the submission was acknowledged by OMIG until completion of OMIG's preliminary review. Upon completion of its preliminary review, OMIG shall notify the person, in accordance with the notice provisions of subdivision (a) of section 521-3.6 of this SubPart, and either accept the submission or return the submission as incomplete and identify the information and data needed to complete the submission. Only a submission that is acknowledged and accepted shall continue to toll the deadline to report, return and explain, in accordance with the provisions of subdivision (b) of section 521-3.3 of this SubPart, from the date the submission was acknowledged by OMIG. OMIG's acceptance of the person's submission of a Self-Disclosure Statement is conditioned upon the person's cooperation with OMIG under the Self-Disclosure Program, including any request for additional information or data under paragraph (2) of this subdivision.

(2) OMIG may, at any time, request additional information or data from the person who submitted the Self-Disclosure Statement. Such requests will be made in writing in accordance with subdivision (a) of section 521-3.6 of this SubPart. The person shall respond with such information and data within fifteen (15) days of the date of OMIG's notice.

(i) OMIG may extend the period to respond for good cause. Any request by the person to extend the period to respond shall be made in writing to OMIG and any approval or denial of the extension request shall be made by OMIG, in writing, in accordance with the provisions of subdivision (a) of section 521-3.6 of this SubPart.

(ii) Failure by the person to respond within fifteen (15) days or by any extended deadline will result in the submission being deemed not accepted and returned to the person as incomplete, and any tolling of the deadline to report, return and explain shall be terminated. OMIG will notify the person in writing, in accordance with the provisions of subdivision (a) of section 521-3.6 of this SubPart, that the submission has not been accepted, and the notice shall include the date on which the submission was deemed not accepted and the tolling of the deadline to report, return and explain was terminated.

(3) Once OMIG has accepted the submission of a self-disclosure statement and determined that the submission is complete, OMIG will review and verify the amount of the overpayment and issue a notification, in accordance with subdivision (a) of section 521-3.6 of this SubPart, to the person of the overpayment amount due, including interest if applicable, and instructions for repayment.

(e) Self-Disclosure and Compliance Agreement.

(1) The SDCA is a binding contract between the person and OMIG. A person may be eligible for an SDCA based on the conduct being disclosed and/or where the person has requested to repay the determined overpayment amount through installments. The overpayment amount shall include interest unless interest is waived, in the sole discretion of OMIG.

(2) The SDCA shall include, at a minimum, the following terms and conditions:

(i) Agreement by the person to repay the amount of the overpayment and interest if applicable, as determined by OMIG, which is the subject of the disclosure.

(ii) If approved by OMIG for installment payments, agreement to make all installments payments on time, and in accordance with the repayment schedule.

(iii) Identification of, and agreement by the person to implement any corrective actions to prevent the issues which caused the person to receive an overpayment from the MA program from recurring.

(3) The person shall execute and return the SDCA, which must be received by OMIG within fifteen (15) days of the person receiving said agreement from OMIG, or such other timeframe as OMIG may permit, provided that such period shall not be less than fifteen (15) days.

(4) If the person fails to execute and return the SDCA to OMIG within the timeframe specified in paragraph (3) of this subdivision the person's participation in the Self-Disclosure Program shall be terminated. Notice of such termination shall be provided in accordance with paragraph (2) of subdivision (f) of this section.

(5) OMIG shall have the authority to enter into an SDCA with a person making a SelfDisclosure, in its sole discretion.

(f) Termination of participation.

(1) In accordance with subparagraph (4) of paragraph (f) of subdivision 7 of section 363-d of the Social Services Law a person's participation in the Self-Disclosure Program shall be immediately terminated if:

(i) the person provides false material information or omits material information in their Self-Disclosure Statement or other communications with OMIG;

(ii) the person attempts to defeat or evade an overpayment due pursuant to the SDCA or notification of an overpayment due, and interest if applicable, pursuant to section 521-3.5 of this SubPart; or

(iii) the person fails to execute and return the SDCA in accordance with the timeframes specified in subdivision (e) of this section.

(2) If OMIG terminates a person's participation in the Self-Disclosure Program it shall issue a notice to the person within five (5) business days of its determination. The notice shall be mailed to the person's designated payment address or correspondence address or address provided on the Self-Disclosure Statement submitted pursuant to subdivision (c) of this section. The notice shall contain:

(i) the reason for the termination and the legal authority for the action taken;

(ii) the effective date of the termination;

(iii) the overpayment amount and interest due;

(iv) the due date of the overpayment amount and interest;

(v) the date on which the tolling of the return of the overpayment amount ends;

(vi) notification that the overpayment and interest amount may be recovered in accordance with Part 518 of this Title; and

(vii) notification that failure to return the overpayment and interest amount by the due date may result in monetary penalties pursuant to section 145-b(4) of the Social Services Law and Part 516 of this Title, and any other sanction or penalty authorized by law.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 521-3.4

Adopted New York State Register December 28, 2022/Volume XLIV, Issue 52, eff. 12/28/2022