New York Codes, Rules and Regulations (NYCRR)
Title 9 Part 9850
Executive Department
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9 NYCRR 9850.1 - Scope
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)This Part establishes the procedures for the recovery of overpayments paid under the Program for Elderly Pharmaceutical Insurance Coverage, as determined by an audit of the provider's books, records, reports or other available documentation.
(b)Recovery of overpayments shall be made only upon a determination by the executive director that such overpayments have been made, and recovery shall be made of all money paid to the provider to which it has no lawful right or entitlement.
(c)Recovery of overpayments pursuant to this Part shall not preclude the executive director or any other authorized governmental body or agency from taking any other action with respect to the provider, including auditing or reviewing of other payments or claims for payment for the same or similar periods, imposing program sanctions, or taking any other action authorized by law.
(d)The existence of procedures for the recovery of overpayments pursuant to this Part shall not preclude the executive director from utilizing other lawful means to recover overpayments, including civil lawsuit, participation in a proceeding in bankruptcy, common law setoff, or such other actions or proceedings authorized or recognized by law.
9 NYCRR 9850.2 - Definitions
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
The definitions employed in Part 9800 of this Title shall apply equally in this Part, and as used in this Part the following terms shall have the following meanings:
(a)Contractor shall mean the State fiscal intermediary making payments under the program, or any person or persons acting on behalf of the contractor.
(b)Executive director shall mean the executive director of the program.
(c)Office of Administrative Hearings shall mean that office within the Division of Legal Affairs of the State Department of Health which conducts hearings under contract with the panel.
9 NYCRR 9850.3 - Audit and record retention
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)All fiscal and statistical records and reports of providers and prescriptions filled or refilled which are used for the purpose of establishing the provider's right to payment under the program, and any underlying books, logs, records and documentation which formed the basis for such fiscal and statistical records and reports, shall be subject to audit. Providers must maintain a contemporaneous signature log which shall contain at a minimum the following elements of information for all prescriptions, except those prescriptions which are delivered to the participant by courier or mail: the prescription number, the date the prescription was dispensed and the signature of the participant or the participant's authorized representative. All underlying books, logs, records and documentation, including all prescriptions filled or refilled, shall be kept and maintained by the provider for a period of not less than three years from the date of completion of such reports or the date upon which the fiscal and statistical records were required to be filed, whichever is later, or the date the prescription was filled or refilled. Failure to maintain accurate records in accordance with this section may result in the disallowance of any claims for which such documentation is lacking.
(b)All claims made under the program shall be subject to audit by the executive director or contractor for a period of three years from the date of their filing. This limitation shall not apply to situations in which fraud may be involved or where the provider or an agent thereof prevents or obstructs the contractor from performing an audit pursuant to this Part.
(c)Notification to the provider of the intent to audit shall toll the period for record retention and audit. The audit shall commence within 60 days of the notification. However, this period may be extended for 60 days upon written notice to the provider. There shall be no more than one extension of a notification of intent to audit.
(d)If an audit has not been commenced within 60 days of a notification of intent to audit or within 120 days of an extended notification, the effectiveness of the notification shall lapse. However, subsequent notifications of intent to audit may be issued within the period described in subdivision (b) of this section. The passage of this period shall preclude the conduct of an audit unless there is in existence an unexpired notification of intent to audit or an extended notification. The passage of this period shall not prohibit the conclusion of an audit already begun.
(e)Notwithstanding the provisions of subdivisions (c) and (d) of this section, the period within which to commence an audit may be indefinitely extended on account of delays in the commencement of the audit caused or requested by the provider or a representative of the provider.
(f)The audit shall begin with an entrance conference at which the nature and extent of the audit shall be discussed. The time, manner and place of an audit shall be determined by the executive director or the contractor.
(g)In their discretion, the executive director or the contractor may terminate an audit at any time in the audit process. The provider shall be notified in writing of such termination. This written notification shall serve in the place of a closing conference, draft audit report or final audit report, as appropriate. If an audit is terminated, the executive director or the contractor is precluded from recommencing an audit of those items which were the subject of the terminated audit.
9 NYCRR 9850.5 - Draft audit report
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)If, after affording the provider the opportunity for a closing conference and after consideration of any additional documentation and information presented in connection therewith, the executive director or the contractor believes that overpayments have been made to the provider, a draft audit report shall be issued.
(b)The draft audit report shall contain a clear statement of the action to be taken. The items disallowed and the amount of the overpayments shall afford the provider the opportunity to object to the proposed action within 30 days and shall advise the provider that failure to object within the time provided may result in the adoption of the proposed action as the final action.
(c)The report shall be accompanied by a document identifying the person to whom objections to the report should be mailed. The provider's objections to the draft audit report must be mailed by the provider to that person within 30 days of the report. It shall include a statement detailing the specific items of the draft report to which the provider objects, and provide any additional material or documentation which the provider wishes to be considered in support of the objections.
9 NYCRR 9850.6 - Final audit report
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)After receipt of the provider's objections to the draft audit report, or at any time after the expiration of 40 days after mailing of the draft audit report without objections having been received, a final report shall be issued by the executive director. In preparing the final audit report for the executive director, the contractor shall consider the objections, any supporting documents and materials submitted therewith, the draft audit report, and any additional material which may become available.
(b)Upon receipt of a final report from the contractor, the executive director shall conduct a review of the report for conformance with program policy, law and regulations. The report may be modified by the executive director prior to issuance in light of his/her review.
(c)The final audit report and/or the cover letter accompanying it shall clearly advise the provider:
(1)of the nature and amount of the audit findings, the basis for the action and the statutory, regulatory or other legal basis therefor;
(2)of the action which will be taken;
(3)that the effective date of the intended action shall be not less than 15 days from the date of the final audit report;
(4)of the right to appeal the administrative action by requesting a hearing, and the name, title, address and telephone number of the appropriate official of the Office of Administrative Hearings the provider must contact to request a hearing;
(5)that a request for a hearing must be made in writing and postmarked or delivered within 60 days of receipt of the final audit report which shall be presumed to be five days from date of mailing; and
(6)that the request may not address issues regarding the methodology used to determine the rate of payment under the program or the dispensing fee, but shall be limited to those issues relating to determinations contained in the final audit report.
9 NYCRR 9850.7 - Request for hearing
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)A provider has the right to an administrative hearing to challenge the final audit report and may request such a hearing within 60 days of receipt of the final audit report which shall be presumed to be five days from date of mailing.
(b)The request for hearing shall be in writing and shall be delivered or mailed to the appropriate official of the Office of Administrative Hearings. It shall specify by number and date the final audit report which is to be the subject of the hearing and shall include the following additional information:
(1)the specific item or items to which objections are made;
(2)the factual basis for the objections; and
(3)any legal authority for the objections.
(c)When a timely request for a hearing has been made, a hearing shall be held, except when the request has been withdrawn or abandoned by the provider.
(1)A request for a hearing shall be considered withdrawn only upon receipt of a written statement or by the making of a statement on the record at the hearing by the provider or by the provider's attorney or representative.
(2)A request for a hearing shall be considered abandoned if, without good cause, neither the provider nor the provider's attorney or representative appears at the time and place designated for the hearing.
(d)Upon receipt of a request for a hearing, the Office of Administrative Hearings shall forward a copy of the request to the executive director, and:
(1)designate a hearing officer to hear the matter;
(2)establish a time and place for such hearing;
(3)notify the provider, contractor and executive director of the time and place of such hearing at least 15 days before the commencement of the hearing; and
(4)include in a notice of hearing a statement:
(i)of those issues which are controverted and to be determined at the hearing;
(ii)of the provider's rights to be represented by an attorney or other representative, to cross-examination, to present evidence and produce witnesses on the provider's own behalf; and
(iii)that the burden of proof at the hearing shall be on the provider as the appellant.
9 NYCRR 9850.8 - The hearing officer
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
The hearing shall be conducted by an impartial hearing officer employed for that purpose. The hearing officer shall have all the powers conferred by law and the regulations of the executive director to administer oaths, issue subpoenas, require the attendance of witnesses and production of records, rule upon requests for adjournment, rule upon evidentiary matters, and to otherwise regulate the hearing, observe requirements of due process and effectuate the purposes and provisions of applicable law.
9 NYCRR 9850.9 - Who may be present at hearing; authorization of representative
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)The hearing shall be open to the public. However, upon the hearing officer's motion, or upon the motion of either party, potential witnesses may be excluded from the hearing during the testimony of other witnesses.
(b)An individual, other than an attorney, representing the provider shall have written authorization signed by the provider if the operator thereof is a natural person, or by an officer, member or director of an operating entity which is not a natural person.
9 NYCRR 9850.10 - Conduct of hearings; rights of provider
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)The hearing officer shall preside over the hearing, make all procedural rulings, and make a statement on the record describing the nature of the proceedings, the issues, and the manner in which the hearing will be conducted.
(b)The issues and documentation presented at the hearing shall be limited to issues relating to determinations made in the final audit report. A provider may not raise issues regarding the methodolgy used to determine the rate of payment or dispensing fee.
(c)The rules of evidence observed by a court of law need not apply.
(d)Computer-generated documents prepared by the contractor or its agent to show the nature and amount of payments made under the program shall be presumed, in the absence of evidence to the contrary, to constitute an accurate reflection of the contractor's records as to the amount and type of payment made to a provider as well as the basis for such payment.
(e)An extrapolation based upon a contractor audit utilizing a valid statistical sampling method shall be presumed, in the absence of evidence to the contrary, to be accurate.
(f)An audit report of the contractor shall be presumed to be correct and the burden of proof shall be on the provider to show by substantial evidence that any item of such report is incorrect.
(g)All testimony shall be given under oath or affirmation administered by the hearing officer.
(h)The provider shall be entitled to be represented, to have witnesses give testimony and to otherwise present relevant and material evidence on the provider's behalf, to cross-examine witnesses and to examine any document or other item offered into evidence.
(i)A verbatim record of the hearing will be maintained.
(j)In the discretion of the hearing officer, the hearing may be adjourned for good cause upon the request of either party or upon the hearing officer's own motion.
(k)The hearing shall be conducted in conformity with procedural requirements of section 12-a of the Public Health Law and the State Administrative Procedure Act.
(l)At the conclusion of the hearing, the hearing officer may direct the provider and the contractor to submit memoranda on any legal issues relevant to the proceeding within time frames established by the hearing officer. The hearing officer may also direct the parties to submit proposed findings of fact.
9 NYCRR 9850.11 - The record
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)The record shall include those matters required to be included by section 302 of the State Administrative Procedure Act, as amended from time to time, and the transcript of the proceedings.
(b)Findings of fact shall be based on the evidence at the hearing and on matters administratively noticed.
9 NYCRR 9850.12 - Examination of record after hearing
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
The record and transcript of the hearing and the memoranda of law or other post-hearing submissions of the parties may be examined by any party to the hearing at the Office of Administrative Hearings during regular business hours.
9 NYCRR 9850.13 - Decision after hearing
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)The hearing decision shall be made and issued in accordance with the agreement between the Department of Health and the panel and shall be based exclusively on the record and transcript of the hearing. In reaching a decision, memoranda of law of the parties, if any, may be reviewed and noted. The decision shall be in writing and shall describe the issues, recite the relevant facts, the pertinent provisions of law and regulations, make appropriate findings, determine the issues, state reasons for the determinations and, when appropriate, direct specific action.
(b)A copy of such decision shall be mailed to the provider and the provider's attorney or representative, if any, and to the contractor and executive director.
(c)In the event that a decision is adverse to the provider, in whole or in part, the provider shall be given notice of the right to judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.
9 NYCRR 9850.14 - Adjustments after audit
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
Adjustments which result in revisions to the amount of reimbursement made shall be satisfied pursuant to section 9850.15 or 9850.16 of this Part.
9 NYCRR 9850.15 - Recoupment of overpayments
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)Overpayments determined to have been made pursuant to this Part shall be recovered by withholding the provider's current or future payments on claims submitted or a percentage of payments otherwise payable on such claims, at the option of the contractor, unless the provider and contractor agree otherwise. Such withholding may be made at any time after the issuance of a decision after hearing or, if a hearing has not been requested in accordance with this Part, at any time after expiration of the time period allowed in section 9850.7 of this Part for the making of such request.
(b)Any money due to the provider from the contractor shall be used as an offset against an overpayment determined to have been made by the audit made pursuant to this Part.
9 NYCRR 9850.16 - Recovery of overpayments pending hearing
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)Notwithstanding the provisions of subdivision (a) of section 9850.15 of this Part, the executive director may request the contractor commence recoupment of overpayments by withholding all or part of payments otherwise due the provider, upon notice to the provider and not sooner than 15 days after issuance of the final audit report.
(b)If a request for hearing shall have been timely made and the Office of Administrative Hearings is unable to schedule the hearing so that it is commenced within 90 days of receipt of such request or if the contractor is unable to proceed within 90 days, any recovery begun under this section shall be stayed pending the commencement of the hearing. If a hearing shall have been scheduled to commence within 90 days of receipt of a hearing request, any delays or adjournments to the commencement of the hearing occasioned by or attributable to the contractor shall forestall the commencement of continuation of recoupment.
9 NYCRR 9850.17 - Fraud and abuse
Later State Register activity may affect this section.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- May 15, 2022
(a)The executive director shall maintain a statewide program for investigation and referral for prosecution of violations of State laws pertaining to fraud or abuse in the program.
(b)Whenever, in the conduct of an audit of the books and records of a provider or in the evaluation of utilization review reports or provider profiles, there is sufficient evidence of program fraud or abuse to warrant investigation of the provider, the contractor shall promptly refer the matter to the executive director for investigation.
(c)Where initial review of a contractor referral indicates substantial potential for criminal prosecution, the executive director shall refer the matter to the Attorney General or local prosecutive authority. Where initial review does not indicate substantial potential for criminal prosecution, the executive director shall conduct further investigation to determine whether or not the subject provider should be discontinued from participation in the program.
(d)Where investigation indicates substantial evidence of abusive practices on behalf of a provider or his affiliates, the provider may be terminated, suspended or restricted in accordance with the provisions of section 9800.7(b) of this Title.