By James C. Sherlock

Virginia does not do enough to stop Medicaid fraud. The dysfunctional state regulatory system impedes our efforts. They fail often because can’t work. The article will concentrate on behavioral health, and make specific recommendations. However, the entire healthcare regulatory structure needs to be overhauled. We risk losing federal Medicaid funding if we don’t do that.

Ask Minnesota.

Medicaid Behavioral Healthcare Services cost a lot, even if you only look at one state. Virginia spent $2 billion in services for mental illness and substance abuse disorders last fiscal year out of the $14.8 billion total Medicaid spending.

Medicaid & FAMIS Managed Care Healthcare Spending by Service Category shows that behavioral health services are the fastest growing Virginia Medicaid program. In only six quarters, it jumped from $260 million per quarter to $340 million.

We also note the jump in expenditures for Home and Community-based Services from $400 to $525 per quarter during this same 18-month time period. This number includes payments to Lucas Lodge as well as more than 1,000 other community-based service providers for intellectually and developmental disabled (I/DD).

Both figures include information on autism diagnosis and treatment.

The National Institutes of Health report, that autism misdiagnosis and late diagnosis are highly common. However, they are often sought partly because an autism diagnosis is “validating.”

Autism is diagnosed based on observation of behavior rather than laboratory tests. This means that autism symptoms are often masked or misdiagnosed as other conditions such as ADHD, social anxiety or bipolar disorder. This can result in years of incorrect treatment and stress.

Autism diagnosis and treatment is a growing industry. The amount of Medicaid money that has been poured into the problem to date is staggering. It is important to monitor fraud by both companies owned by private equity and individual providers.

Virginia does not seem to see it this way yet. The federal government does.

Virginia Commonwealth University’s Positive Behavior Support Program

Positive Behavior Support Facilitators (PBSFs)

Help individuals maintain and develop positive behaviors at home, in school or within the community. They collaborate with teachers, parents, and other staff members to develop individualized plans which teach skills, reinforce desired behavior, and provide structure.

VCU is the only state-run program that offers PBSF certification and oversight. Virginia Commonwealth University is the only institution that tests, certifies, and supervises candidates.

Entry requirements include a Bachelor’s Degree from an accredited University and 3 years experience in human services or the field of developmental disabilities.

The author can’t speak for VCU’s curriculum, but the PBSF certification test is based on an “asset portfolio” that is submitted by a candidate and graded using a 100-point system. Like the portfolios themselves, the grading criteria are subjective. And rare.

Some examples:

• The gender of the person is a factor in determining how many points are awarded.
• The preferred communication method is also given a point.
• The plan includes a “dream statement” (1 point).
• “The involvement of the person in question is described” (1 Point).
• Another full point is devoted to “How the individual enjoys spending his or her time”.
• The applicant’s own description of his or her health and physical issues is worth seven points.

The applicant will be well on his way to getting an endorsement if he has these eleven points. A passing grade of 77 is required out of 100.

The PBSF seems to have been transferred directly from the Virginia Commonwealth University’s (VCU) Faculty Lounge to the General Assembly. Autism-related services in Virginia are particularly vulnerable to fraud due to the lack of oversight by state executive branch of this entire category of service providers.

• PBSFs do not require a license from the state.
• The profession is not regulated by the state.
• Medicaid pays for these services.
• The Department of Medical Assistance Services is an agency of the state, but it’s primary role is to administer health care coverage for the public rather than acting as a general regulator board.
• The Virginia Department for Aging and Rehabilitative Services provides the Guide for the Provision of Therapeutic Behavior Services. The Guideline includes a description about the PBSF, but does not offer any enforcement mechanisms.

In a perfect world, the Department of Behavioral Health and Disability Services would regulate businesses that provide autism services, and the Department of Health Professions, would regulate PBSF professionals.

It doesn’t really work like that.

DBHDS is not able to do its job because the Office of the State Inspect General is in the way. The executive branch also does not regulate the individual PBSF providers.

Both decisions are objectively incorrect.

PBSFs do not fall under the Department of Health Professions. VCU instead processes complaints against PBSFs, and renders judgements on their ethical. VCU provides a list in Step 3 of who to contact if they find signs of abuse, negligence, or exploitation. Fraud is not mentioned.

This author may have some quibbles with the current PBSF process but he doesn’t mind that VCU certifies and trains them. The graduates are not at fault and may be the only ones who escape state regulation. This leaves them vulnerable to Medicaid fraud.

Federal oversight

Autism-related scams, such as those allegedly committed against Minnesota’s Early Intensive Development and Behavioral Intervention program (EIDBI), are also on the rise.

A state-funded health care program which provides medically needed, evidence-based treatment to children and young adults with Autism Spectrum Disorders (ASDs) or related conditions.

Health Care Fraud Unit of the Justice Department operates under a strike force model. , which has 75 attorneys on staff, conducts more trials that any other component of Justice. The unit recently indicted fifteen individuals in Minnesota who orchestrated a $90,000,000 Medicaid fraud scheme.

Indictments allege the largest Autism Treatment Fraud ever committed in American history. Two Minneapolis-area centers are accused of submitting fraudulent Medicaid claims totaling $46.6 million and paying kickbacks for parents to enroll their child.

Assessment
Professionals shouldn’t be held accountable for program shortcomings. VCU’s PBSF program is poorly executed and designed, and invites trouble.

Cynics might suggest that this fact has ensured the Governor and leftists in the General Assembly cannot get enough of the issue. They simply expanded the reimbursable responsibilities for PBSFs.

Autism Competencies ( HB469 ): Directs that the Department of Medical Assistance Services amends the Checklist of Autism Competencies in order to allow direct support professionals to receive training from facilitators of positive behavior support.

The Governor signed the document.

The federal government will not continue to fund the Commonwealth if the Governor and General Assembly do not stop Medicaid fraud on the regulatory level. This isn’t the first time that this author has raised this issue. They should.

The Medicaid Fraud Unit of the Minnesota Attorney General does a great job, despite the limited resources available. It is not prevention; it is retribution. Each case can take many years.

Recommendations
State regulators must stop fraud before MFCU investigators build each case individually and prosecutors bring them to court.

It will first be necessary to pass legislation to restructure the state’s regulatory system to align the lines of authority and responsibility for preventing Medicaid fraud. The General Assembly should act to move health care fraud Prevention under the sole responsibility of the Secretary of Health and Human Resources and remove OSIG from the picture. The same legislative effort would reexamine the expectations of regulators, and provide them with the authority and resources they need to carry out their duties.

The author recommends, furthermore, that the General Assembly as well as the Governor demonstrate their intention and progress in this direction to prevent any possible stoppage of federal Medicaid contributions.

If it does happen, they will certainly find the time and energy to protest.

Ask Minnesota.