ATTENTION MEDICAID PROVIDERS: UPDATED Policy on Loss of Records Due to an Unforeseen Event

Have you lost some or all of your Medicaid provider records due to an unforeseen event? All may not be lost. In its November 2023 edition of the New York State Medicaid Update, the Department of Health issued an update for providers relating to the States’ Medicaid policies and procedures for any loss of records due to an unforeseen event. All relevant information contained within supersedes the States’ prior communication issued to providers in May of 2015.

Title 18 of the New York Codes Rules and Regulations (NYCRR) § 504.3 states in pertinent part:

By enrolling in the Medicaid Program the provider agrees:

• To prepare and maintain contemporaneous records demonstrating its right to receive payment under the medical assistance program and to keep for a period of six years from the date of care, services or supplies were furnished, all records necessary to disclose the nature and extent of services furnished and all information regarding claims for payment submitted by, or on behalf of, the provider and to furnish such records and information, upon request, to the department, the Secretary of the United States Department of Health and Human Services, the Deputy Attorney General for Medicaid Fraud Control and the New York State Department of Health; (i) to comply with the rules, regulations and official directives of the department.

Consistent with the above referenced provision, the Department of Health has advised providers whose records have been damaged, lost, or destroyed to report the issue as soon as practicable, but no later than thirty (30) calendar days after such discovery is made. All reports are required to be filed with the New York State Office of the Medicaid Inspector General’s Self-Disclosure Unit. Providers should be aware that failure to report such incidents may result in a determination of overpayment, penalties, and/or sanctions being issued against them. Providers should also be advised that the loss, destruction, corruption, or inaccessibility of electronic records are also required to be included in the aforementioned reporting requirements.

To self-report damaged, lost, or destroyed records, providers must first complete the “Statement of Damaged, Lost or Destroyed Records” form located on the New York State Office of the Medicaid Inspector General’s web page. The form can be accessed via the following hyperlink: https://omig.ny.gov/self-disclosure-submission-information-and-instructions. The Office’s web page offers additional secure links for provider submission, as well as information regarding other relevant or supporting document submission. When reporting, providers are required to include the following information:

• Provider Medicaid Management Information System (MMIS) number and National Provider Identifier (NPI) number;
• Appropriate contact information;
• A complete statement explaining the circumstances surrounding the loss, damage or destruction of records including:
• A full description of the loss/destruction that occurred including when it occurred and how it was discovered;
• A complete list of the effected documents;
• Names and titles of individuals who discovered and documented the loss or destruction of records;
• All actions taken to prevent the reoccurrence of such loss or destruction in the future; and
• Copies of any and all reports filed with third parties (insurance companies, police agencies, state agencies, or federal organizations), including appropriate contact information for such parties.

Providers are required to notify any other State or local regulatory agency for which such loss, damage or destruction as required by those relevant regulatory agencies. It is important to note that in the event of Medicaid audit or investigation regarding violative recordkeeping procedures, the Office of the Medicaid Inspector General will assess all provider submitted forms and determine on a case-by-case basis whether mitigating circumstances exist.

For assistance submitting any required form or document, providers are advised to contact the New York State Office of the Medicaid Inspector General’s Self-Disclosure Unit via email at selfdisclosures@omig.ny.gov.

Furthermore, providers should be cognizant of their additional retention requirements (e.g., contractual requirements under the Medicaid Managed Care program) in order to comply with all other Medicaid record keeping provisions and requirements.

For more information, please contact David R. Ross, Esq., Shareholder, at dross@olaw.com or at (518) 312-0167. Mr. Ross handles all aspects of Medicaid compliance. Colin Green, Law Clerk, contributed to this article.