Lawyer representing AMDCs slams comptroller’s findings

An attorney representing four of the five Adult Medical Day Care centers that the Office of State Comptroller investigated for improper Medicaid billing, among other issues, blasted the state’s findings in a statement Wednesday afternoon.

Robert Fogg of Princeton-based law firm Archer & Greiner expressed his disappointment with the comptroller’s findings. He said many of the findings are “incorrect,” adding that any errors that were made were “exceptions, not the rule.” He also cited the relatively low levels of staff reimbursed by Medicaid as a problem. Fogg said what is needed is more clarity from the state in what it expects to see in medical charts that the state claims were not properly documented.

Here is his statement: 

“Adult Medical Day Care centers are an important resource to seniors throughout the State of New Jersey.  The Office of the Comptroller and its Medicaid Fraud Division (“MFD”) are entitled to audit and examine whether Medicaid expenditures have been properly made.  In reviewing this report, however, we are disappointed that the Comptroller has chosen to release individual provider audit information when these providers have appealed the audit decisions made by MFD and these cases remain in negotiation.

“We believe we have documented that the vast majority of the MFD audit findings are incorrect, and are surprised that they have included inflammatory examples of documentation problems that we have already shown are incorrect,” Fogg continued. “Thus, the detail and tone of the report, and the fact that providers have been named is not helpful to the good faith efforts my clients have made to respond and correct any documentation practices that MFD finds insufficient. 

“MFD is criticizing and seeking recoveries for alleged gaps in documentation by medical day care centers that in large part is not required by state regulation.  For example, daily charts identifying when specific patients served by these senior medical day care providers were assisted up from their chair, helped to eat a meal, or were walked to the toilet is not required by the state licensing agency, the Department of Health, nor is it the standard of care either in New Jersey or across the country,” Fogg continued. “Despite that, MFD has now retroactively sought hundreds of thousands of dollars in recoveries from these providers due to the absence of these checklists, which simply has never been mandated by the State of New Jersey.  Sending teams of investigators to find these alleged documentation errors and to make hindsight judgments about  documentation of nursing care is not an effort to combat Medicaid fraud, it is simply an effort to penalize otherwise excellent senior care centers.

“This just seems to be a misuse of the government’s limited resources to ferret out real Medicaid fraud,” Fogg said. “For example, in one facility, MFD alleged in the report that medication administration records were missing in 22 of 25 records reviewed. This is entirely untrue and the first we’ve heard that in over a year of this investigation.  In another example, they say that a patient wasn’t administered eye drops at the center after cataract surgery.  That ignores the fact that has been pointed out to MFD that the patient elected to receive all their eye drops at home, since medical day care is a 5-hour a day service.  In another example, a center is criticized and a recovery sought for drivers not writing down what time they arrived at the center, which is not required in regulation, when the patients have signed in and a time was recorded.  

“While we recognize that record keeping in a busy day care center that can serve up to 200 elderly patients a day will not always be 100 percent accurate, especially given the minimal levels of nursing staff paid through the Medicaid rates, the charting errors that are highlighted are clearly exceptions, not the rule, in this industry.  What is needed is more clarity in what MFD and the state licensing agencies want to see in charts, so that providers randomly audited like these five can ensure that they meet state requirements going forward, and not penalized in hindsight.

“Each of the facilities have taken the investigation performed by MFD’s auditors very seriously, and have made improvements in documentation practices, whether or not required,” the attorney said. “Medical day care is a valuable service for New Jersey’s senior citizens, and it serves as an important means to keep individuals at home and out of more expensive nursing homes and assisted living facilities, saving the state Medicaid program millions of dollars in the process.”

Lawyer representing AMDCs slams comptroller’s findings