By James C. Sherlock
Virginia is not doing enough to prevent Medicaid fraud. Our attempts are hampered by the dysfunctional design of the state regulatory system. They often fail because they cannot work. This piece will focus on behavioral health and recommend specific actions, but the entire healthcare regulatory system needs an overhaul. Absent that, we risk the stoppage of federal Medicaid contributions.
Ask Minnesota.
The costs of Medicaid Behavioral Health Services are immense, even in a single state. Last fiscal year, Virginia alone spent nearly $2 billion on services for mental health and substance use disorders out of $14.8 billion total Medicaid expenditures.
We note below from Medicaid and FAMIS Managed Care Healthcare Expenditures by Service Category that the fastest-growing Virginia Medicaid program is behavioral health services. It jumped from about $260 million to what appears to be $340 million per quarter over only six quarters.
We also note that expenditures on Home and Community-based Services jumped from $400 million to $525 million per quarter over the same 18-month period. Payments to Lucas Lodge and more than a thousand other providers of community-based services for the intellectually and developmentally disabled (I/DD) services are included in that number.
Autism diagnosis and treatment are included in both figures.
The National Institutes of Health reports that autism misdiagnosis or late diagnosis is highly common, but is often sought partially because an autism diagnosis “is validating.”
Because autism relies on behavioral observation rather than lab tests, traits are frequently masked to fit in or confused with other conditions like ADHD, social anxiety, or bipolar disorder. This can lead to years of inappropriate treatment and immense stress.
Autism diagnosis and treatment are a growth industry, and the Medicaid money thrown at the problem is staggering. So oversight to prevent fraud committed by companies, often owned by private equity firms, and by individual providers, is crucial.
Virginia apparently does not yet see it that way. The feds do.
Virginia Commonwealth University (VCU) Positive Behavior Support Program
Positive Behavior Support Facilitators (PBSFs)
help individuals develop and maintain positive behaviors while reducing challenging behaviors in home, school, or community settings. They work collaboratively with families, teachers, and other support staff to create individualized plans that teach skills, provide structure, and reinforce desired behaviors.
PBSFs bill Virginia Medicaid for therapeutic consultation, primarily for autism.. VCU operates the state PBSF training, certification, and professional oversight program. Candidates are tested, certified, and overseen not by the state executive branch, but exclusively by Virginia Commonwealth University.
General requirements for entry into that field include a bachelor’s degree from an accredited university and at least 3 years of experience in the human services or developmental disability field.
This author cannot speak to VCU’s training syllabus, but its PBSF test for certification is based on a candidate’s submitted “portfolio,” which is graded on a 100-point scale by VCU staff. The grading criteria, like the portfolios, are subjective. And unusual.
Some examples:
One point is awarded for gender identification.
Another point is awarded for the person’s preferred method of communication.
A “dream statement is included in the plan” (1 point)
“the focus person’s involvement in the statement is described” (1 point).
“How the person enjoys spending their time” is described for another full point.
The applicant’s description of their own health and physiological issues is worth 7 points.
With those eleven points in hand, the applicant is well on their way to endorsement. A passing grade is 77 out of 100.
Lack of State Oversight
The PBSF program seems to have gone straight from the Virginia Commonwealth University (VCU) faculty lounge to the General Assembly. Autism-related services are uniquely vulnerable to fraud in Virginia due to a designed lack of state executive-branch oversight of that entire class of providers.
PBSFs are not licensed by the state.
They operate under state regulations, but the profession has no state regulator.
They bill Medicaid for their services.
The Department of Medical Assistance Services (DMAS) is a state agency, but its primary role is to administer public health coverage rather than act as a general regulatory board.
Guidance for the Provision of Therapeutic Behavioral Services is provided by the Virginia Department for Aging and Rehabilitative Services (DARS). The Guidance includes a description of the PBSF’s role, but offers no enforcement mechanism.
In a better world, the Department of Behavioral Health and Disability Services (DBHDS) would regulate autism service provider businesses, and the Department of Health Professions would regulate individual PBSF professionals.
It doesn’t work that way.
The Office of the State Inspector General has been put in the way of DBHDS doing that job, and the executive branch does not regulate individual PBSF providers at all.
Both decisions are objectively wrong-headed.
PBSFs are not overseen by the Department of Health Professions. Instead, VCU processes complaints against PBSFs and renders judgments on their ethics. In Step 3, VCU offers a list of those to notify if it finds indications of abuse, neglect, or exploitation. There is no mention of fraud.
While this author has quibbles about the current PBSF certification process, he does not mind that VCU trains and certifies them. But the graduates, perhaps uniquely and certainly not their fault, escape state regulation, creating an unnecessary vulnerability to Medicaid fraud.
Federal oversight
With billions of dollars in play, also growing nationally are autism-associated scams like those allegedly perpetrated against the Minnesota Early Intensive Development and Behavioral Intervention (EIDBI) program.
a state health care program that provides medically necessary, evidence-based services to people under age 21 with Autism Spectrum Disorder (ASD) and related conditions.
The Justice Department’s Health Care Fraud Unit operates on a strike-force model and, with 75 staff attorneys, conducts more trials than any other component of the Department of Justice. It recently indicted 15 individuals in Minnesota for orchestrating a $90 million Medicaid fraud scheme.
The indictments included allegations of the largest autism treatment fraud in American history, alleging that two Minneapolis-area centers submitted $46.6 million in fraudulent Medicaid claims and paid kickbacks to parents to enroll their children.
Assessment
Professionals should not be judged for program deficiencies. But VCU’s PBSF oversight program is poorly designed and executed, and it begs for trouble.
A cynic might say that fact may have ensured that the Governor and the left in the General Assembly can’t get enough of it. They just broadened the reimbursable responsibilities of PBSFs.
Autism Competencies (HB469): Directs the Department of Medical Assistance Services (DMAS) to amend the Autism Competencies Checklist to allow positive behavior support facilitators to conduct training sessions for direct support professionals.
The Governor has signed it.
To be blunt, and this is not the first time this author has brought it up, the Governor and the General Assembly had better get the Commonwealth’s act together on stopping Medicaid fraud at the regulatory level, or the feds will stop the federal contribution. And they should.
Unlike in Minnesota, the Attorney General’s Medicaid Fraud Unit (MFCU) does a good job with the limited resources it has. But that is not prevention, it is retribution, and each case can take years.
Recommendations
State regulators have to stop fraud long before MFCU investigators have to build cases one at a time, and prosecutors take them to court.
Legislation will be required to first reconstruct the state regulatory system across the board to straighten the lines of authority and responsibility in preventing Medicaid fraud. The Governor should propose, and the General Assembly act, to place health care fraud prevention entirely under the Secretary of Health and Human Resources and to get OSIG out of the way. That same legislative effort should reexamine what is expected of regulators and give them the authorities and resources to do it.
The author further recommends that the General Assembly and the Governor signal their intent and demonstrate progress in that direction to help prevent any potential stoppage of the federal Medicaid contributions.
They certainly will find the time to rail against it if it happens.
Ask Minnesota.