Fraud , Waste and Abuse: What You Need to Know Regarding Medicaid, Solicitation and Marketing

1. Fraud, Waste and Abuse: What You Need to Know Regarding Medicaid, Solicitation and Marketing

2. Senate Bill 8 addressed the following areas: Marketing by Medicaid/CHIP Providers Transportation of a child Review of MCO’s Prior Authorization and Utilization Review Processes 83rd Legislative Session (2013)

3. Providers may not disseminate material or attempt any other communication that (1) involves unsolicited personal contact with a Medicaid client or a parent whose child is enrolled in the Medicaid or child health plan program; (2) is directed at the client or parent solely because the client or the parent's child is receiving benefits under the Medicaid or child health plan program; and (3) is intended to influence the client's or parent's choice of provider. Tex. Gov’t Code § 531.02115 (Senate Bill 8, Sec. 2) Prohibition on Provider Marketing Activities

4. Community-sponsored event, health fair, or outreach activity that does not involve unsolicited contact or promotion of provider’s practice General media Allowed by contract, such as personal communication for appointment reminder, health materials, types of services offered or coordinating patient care as permitted by contract Approved by HHSC’s prior authorization process Tex. Gov’t Code § 531.02115 (Senate Bill 8, Sec. 2) Exceptions to Marketing Prohibition

5. Although Texas Gov’t Code § 533.008 and 1 Tex. Admin. Code (TAC) § 353.405 currently address the marketing guidelines for Medicaid managed care providers, Senate Bill 8 requires a prior authorization process for marketing materials under § 533.008. Medicaid/CHIP division is in the process of proposing rules creating the review process of marketing materials. Tex. Gov’t Code § 531.02115(e) (Senate Bill 8, Sec. 2) Marketing Guidelines

6. Proposed rules - 1 TAC § 354.1452 specifies the types of provider marketing that are prohibited; specifies the types of provider marketing that are considered permissible; and permits providers to submit proposed marketing materials to HHSC for review and prior authorization to ensure that the materials are in compliance with the rule Marketing Guidelines

7. Proposed rule 1 TAC § 354.1452 permits certain marketing activities conducted at a community or nonprofit event that does not involve unsolicited personal contact or promotion of the provider’s practice that is not used as part of health education; that involve only the general dissemination of information and not unsolicited personal contact; allowed under Medicaid contract; or that have been submitted for review and authorized by the commission Marketing Guidelines

8. Proposed rule 1 TAC § 353.405 extends marketing requirements to providers under Medicaid managed care and CHIP Marketing Guidelines

9. MCO proposed contract language: MCO must submit all Marketing Materials and Member Materials to HHSC for review/approval prior to use. HHSC will notify MCO of approval of materials or of any required changes within 15 Business Days of receipt. If HHSC does not respond within 15 Business Days, MCO may use the submitted materials. HHSC reserves the right to require discontinuation of any materials that violate the terms of the Marketing Policies or the Contract. Marketing Guidelines

10. All Marketing materials directed to Medicaid MCO and CHIP recipients must be: Written at or below a 6th grade reading level (language required or supplied by HHSC is exempt). The MCO must submit proof of reading level with its requests for approval; Written and distributed in English, Spanish, and the languages of any other Major Population Groups in the Service Area; Culturally appropriate; and Geared to the health or dental needs of the enrolled MCO Program population. http://www.hhsc.state.tx.us/medicaid/CommunicationsResources.shtml (Consumer Information tool kit) Marketing Guidelines

11. Materials that require review and approval include: Marketing Materials (including print media and television/radio storyboard or scripts) Member Materials (including Provider Directories, Member Handbooks, Member ID cards, and Member newsletters) Information to be used on the MCO’s website or the Internet CMS-approved Medicare materials that include Medicaid Program benefits and services Marketing Guidelines

12. For Medicaid reimbursement for early and periodic screening, diagnosis, and treatment program or the medical transportation program, a child must be accompanied by the child's parent or guardian, or another adult whom the child's parent or guardian has authorized to accompany the child. Tex. Hum. Res. Code § 32.024 (Senate Bill 8, Sec. 18) Transportation of a child

13. The authorized adult cannot be the provider or provider’s employee or associate. Transportation of a child

14. New Tex. Gov’t Code § 531.076 - MCOs will be monitored by HHSC to ensure that the organizations are using prior authorization and utilization review processes to reduce authorizations of unnecessary services and inappropriate use of services. Tex. Gov’t Code § 531.076 (Senate Bill 8, Sec. 4) Review of Prior Authorization and Utilization Review Processes

15. "Abuse" definition added as follows: (A)  a practice by a provider that is inconsistent with sound fiscal, business, or medical practices and that results in: (i)  an unnecessary cost to the Medicaid program; or (ii)  the reimbursement of services that are not medically necessary or that fail to meet professionally recognized standards for health care; or (B)  a practice by a recipient that results in an unnecessary cost to the Medicaid program. Tex. Gov’t Code § 531.1011 (Senate Bill 1803, Sec. 1) Miscellaneous

16. Texas Medicaid Fraud Prevention Act expanded “unlawful acts” to include conspiring to engage in conduct that constitutes a violation of TMFPA and retaining a Medicaid overpayment, even if the person commits no additional overt act. Tex. Hum. Res. Code § 36.002 (Senate Bill 746, Sec. 1) Miscellaneous

17. Texas Medicaid Fraud Prevention Act expanded Whistleblower actions to include “conspiring to commit unlawful acts.” Tex. Hum. Res. Code § 36.002 (Senate Bill 746, Sec. 1) Miscellaneous

18. joy.sparks@hhsc.state.tx.us (512) 491-2864 (direct line) Contact Information