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; andi. 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; ando. 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; andd. 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; andk. 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; ande. 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.]
N.Y. Comp. Codes R. & Regs. Tit. 9 § 5.140