I. Healthcare Reviews
Each fiscal year, the state budget includes language requiring the Office to review the Health Safety Net (HSN) and Medicaid programs, which are administered by the Office of Medicaid (MassHealth).30 This may include reviewing eligibility requirements, utilization, claims administration and compliance with federal mandates. The budget language requires the Office to issue a report each March. Below are highlights from the Policy Division’s work in 2021.
A. Substitute Physicians
The Policy Division reviewed crossover claims, in which both the Medicare and Medicaid programs cover members, with Medicare acting as the primary payor and MassHealth as the secondary payor. Under the Medicare program, providers may hire substitute physicians to treat the provider’s patients when the provider cannot. MassHealth does not allow a similar arrangement.
However, the Policy Division found instances in which a provider billed Medicare for using the services of a substitute physician on the same day they billed MassHealth for providing direct services. This is an indicator of potential fraud or abuse: it could indicate that (1) the substitute physician billed MassHealth using the provider’s identification number, which MassHealth does not allow; or (2) the provider and the substitute physician treated patients at the same time, which neither Medicare nor MassHealth permit.
The Policy Division recommended that MassHealth review crossover claims involving substitute physicians to identify providers that also billed MassHealth as the primary payor on the same day. MassHealth should review any such claims to determine whether they are appropriate and recover any money improperly paid to providers.
B. Personal Care Attendants
MassHealth manages a Personal Care Attendant (PCA) program, which is designed to help MassHealth members who have permanent or chronic disabilities maintain their independence, reside in their communities and manage their own personal care. PCAs provide physical assistance with activities of daily living, including mobility and transfers, bathing, dressing, eating, and toileting. Under the PCA program, the member who receives the PCA services is the PCA’s employer. As such, MassHealth has determined that the member, not MassHealth, is responsible for deciding whether to conduct a criminal offender record information (CORI) check or sex offender registry information (SORI) check on a prospective PCA. CORI check provides information about a person’s criminal history; SORI indicates the names and addresses of people who have committed certain sex offenses.
MassHealth utilizes personal care management agencies to evaluate members for PCA services and support members participating in the PCA program. As part of their responsibilities, personal care management agencies are required to inform members about resources they can use when they hire a PCA, including the use of CORI and SORI checks. The personal care management agencies also are required to provide members with a form to request a CORI report. For its 2020 healthcare report, the Policy Division reviewed de-identified CORI and SORI for 47,735 people who worked as PCAs during the first quarter of 2018. The Office found that a significant number of PCAs had previous involvement with the criminal justice system.
The Office recognized that the PCA program is unique among MassHealth programs because it is a self-determination program, allowing members to select and oversee their PCAs. The member is the PCA’s employer, with the responsibilities of hiring, training, disciplining and firing the PCA. Consistent with this approach, MassHealth gives the member receiving the services the option to conduct a CORI or SORI check.
However, this structure means that members receive no support from MassHealth on how to read or interpret CORI or SORI results even though these results often include terms of art and abbreviations that people without training or a criminal justice background have difficulty deciphering. Members also receive no support on how to use the CORI and SORI results in their decision-making process. Further, MassHealth has no formal follow-up process to determine if a member has conducted any kind of background check, nor does MassHealth track or monitor how many members conduct background checks, or document if a member chooses not to conduct a background check.
Since 2019, the Policy Division has worked with MassHealth to address barriers to using background checks in the hiring of PCAs. In the fall of 2021, the Office convened two meetings. The first meeting included PCA program staff and representatives from the Sex Offender Registry Board, which maintains SORI, and the Department of Criminal Justice Information Services (DCJIS), which is responsible for maintaining CORI. The purpose of this meeting was to share information about the PCA program, CORI and SORI. The second meeting focused on ways to decrease barriers to obtaining CORI for MassHealth members in the PCA program and to increase the number of members who run CORI checks during the hiring process.
Members had previously identified several barriers to conducting background checks. For instance, DCJIS has an online system some employers can use to obtain CORI, but it is not available to members. Rather, members must mail in a notarized request form for CORI, and DCJIS then mails the results back to the MassHealth member. This process, including getting the form notarized, takes time and slows down the hiring process; members expressed concern that if they requested CORI, they would not be able to obtain the assistance they need in a timely manner.
Further, while the fiscal intermediary can complete many administrative tasks for members, they could not conduct CORI checks on behalf of members. This is because only a prospective employer can request a CORI and the fiscal intermediary is not considered the employer for purposes of the PCA program.
As a result of these meetings, MassHealth requested a waiver from the DCJIS commissioner to allow the new fiscal intermediary to request and receive CORI on behalf of MassHealth members in the PCA program. The DCJIS commissioner approved this request in January 2022. MassHealth and DCJIS are working out the details of the waiver agreement. Once MassHealth and DCJIS execute the waiver agreement, the fiscal intermediary will be able to conduct a CORI check for a potential PCA and provide a member with the results so the member can make an informed hiring decision. The fiscal intermediary will be able to utilize the online system to check CORI.
The Office recommended that going forward, MassHealth should devote the necessary staff resources to educate stakeholders about the importance of background checks and to support members who want to conduct CORI and SORI checks. MassHealth should ensure that its fiscal intermediary has the necessary access to run CORI checks on behalf of its members. MassHealth should also monitor the fiscal intermediary to make sure that it performs timely background checks when requested by MassHealth members.
C. Claims Paid After Date of Death
In 2021, the Policy Division reviewed claims that MassHealth paid for services a member received after MassHealth’s claims system recorded a date of death for the member. Specifically, the Office identified members who (1) had a date of death in MassHealth’s system; and (2) had at least one MassHealth claim after their recorded date of death. The Policy Division then reviewed all such claims that MassHealth paid between January 1, 2017, and December 31, 2020. The Policy Division found 2,698 members with at least one claim paid after their listed date of death, with a total of $6.4 million paid for 32,702 claims over the four-year span that the Office reviewed.
The Policy Division found that the majority of claims were for members whose dates of death in the claims system were before January 1, 2017, including members with dates of death as far back as 1953. Many of these are likely data errors; these members are likely still alive. The Policy Division also observed that the number of claims MassHealth paid past the date of death decreased each year from 2017 to 2019. However, the number and cost of claims increased significantly in 2020.
The Policy Division understands that MassHealth receives eligibility data – including dates of death – from external agencies and that it has no direct control over the data it receives from those agencies. This has likely led to the data errors mentioned above. Nevertheless, MassHealth needs to identify a solution to (1) remove erroneous dates of death from its claims system; and (2) ensure it is not paying claims for members who are deceased.
Finally, the Policy Division has provided MassHealth with the list of members it identified in its review. MassHealth should review this information, correct any eligibility errors and recover all payments that it should not have made. MassHealth should also refer providers that appear to be engaging in fraudulent billing to the Attorney General’s Office’s Medicaid Fraud Division.
D. Date-Span Billing
In previous reports on both the Adult Day Health (ADH) and Adult Foster Care (AFC) programs, the Office found that some providers bill MassHealth for multiple days of service on a single claim, a practice known as date-span billing. While permissible, date-span billing makes oversight difficult because it is impossible to determine the specific dates the provider allegedly provided ADH or AFC services.
For both programs, the Policy Division recommended that MassHealth require providers to bill for services one day at a time. In 2021, the Policy Division found that MassHealth has taken steps towards addressing the division’s concerns. MassHealth informed ADH providers that they could no longer submit claims using date-span billing. MassHealth subsequently updated its billing system to prohibit ADH providers from using date-span billing and it is implementing this change for all claims with dates of service on or after May 1, 2022.
MassHealth also informed the Policy Division that it implemented an edit in its billing system in August 2021 to prevent AFC providers from using date-span billing. However, the Policy Division reviewed claims submitted in October 2021 and identified 15,207 claims, or 4.81% of all AFC claims for the month, in which providers billed for multiple days on a single claim.
The Policy Division recommended that MassHealth ensure that the edit intended to prevent date-span billing is working properly. If not, MassHealth needs to fix it. Further, if MassHealth finds that certain providers persist in date-span billing, it should furnish those providers with additional guidance or training on appropriate billing practices.
E. Social Security Numbers
In 2016, the Policy Division made several recommendations to MassHealth to improve its program integrity relating to social security numbers (SSN) after finding that the agency’s data contained facially suspect SSNs (e.g., 111-11-1111) and multiple members with the same SSN. Federal regulations require all persons applying for Medicaid to furnish a SSN or proof of application for an SSN, subject to limited exceptions.31 The regulations further require MassHealth to verify each SSN to ensure that the SSN was issued to the applicant and to determine whether any other SSNs were issued to that person. In turn, MassHealth’s regulations state that it verifies each SSN by an electronic data match with the Social Security Administration (SSA). If the applicant has provided an SSN to MassHealth that the SSA is unable to verify, the applicant has 90 days to provide MassHealth with an approved verification of the SSN.
In 2021, the Policy Division again reviewed MassHealth’s data integrity for SSNs. After reviewing the SSNs of all 2,270,914 active MassHealth members, the Office found only one SSN that could be considered invalid. MassHealth’s system changes to prohibit staff from entering invalid SSNs appear to be working. However, the Policy Division also found 2,179 SSNs linked to more than one MassHealth member’s identification number (ID). One individual may have two MassHealth IDs, making it appear that two people have the same SSN. However, MassHealth needs to evaluate and correct the duplicate SSNs, including removing any duplicate IDs.
F. Dental Claims
Most dentists in the United States use a universal numbering system for teeth, which assigns a specific number or letter to each tooth in the mouth. In 2019, the Office reviewed certain aspects of MassHealth’s dental program and found that while MassHealth’s claims system contained tooth numbers, its data warehouse did not.32 To conduct robust program integrity activity, MassHealth needs to ensure that the claims information in its data warehouse includes the tooth numbers associated with all dental claims. For example, a tooth can only be extracted once; the identification of which tooth the provider billed to extract therefore would allow MassHealth to determine whether a provider billed twice for extracting the same tooth. Similarly, a provider can only bill for one filling per tooth per calendar year. Without having the tooth numbers, MassHealth cannot determine if providers are billing for multiple fillings for the same tooth in a calendar year.
In 2021, the Policy Division found that a field in the data warehouse that is supposed to contain the tooth number sometimes was blank instead. The blanks seem to follow a pattern. When tooth numbers 1 through 9 were entered as “01” through “09” in the claims adjudication system, the data transferred properly to the data warehouse. However, when tooth numbers were entered as a single digit, i.e., without the “0” before the tooth number, the numbers did not transfer to the data warehouse. The Policy Division brought this to the attention of MassHealth’s data warehouse team, which is currently working on a solution. The Policy Division commended MassHealth for taking steps to fix the communication error between its claims system and the data warehouse. The Policy Division recommended that MassHealth continue its efforts to resolve this issue for single-digit tooth numbers.
II. Pandemic Funding Oversight Unit
In January 2022, the Office created the Pandemic Funding Oversight Unit (PFO) within the Policy Division. The PFO is charged with coordinating pandemic-related oversight efforts throughout the Office, including by developing and presenting of pandemic-related trainings, maintaining an internal knowledgebase of rules and resources related to pandemic funding, tracking and publishing pandemicrelated cases and guidance, and centralizing external communications relating to federal pandemic funding oversight.
Since its inception, the PFO has focused on preventative measures to combat fraud, waste and abuse in the use of federal pandemic funds. First, the PFO developed an online resource hub for guidance from the Office, other government offices and private entities related to the American Rescue Plan Act (ARPA).33 The PFO additionally published guidance to help state and local governments monitor ARPA grant recipients. Finally, the PFO and the Regulatory Division developed a free, 90-minute ARPA webinar, which the Office has delivered to over 500 public employees from cities, towns, school districts, public works departments, fire departments, planning commissions and state agencies. The training provides tools to help state and local governments spend ARPA funds correctly and covers topics such as the allowable uses for ARPA fiscal recovery funds, the application of public procurement laws to ARPA funds and compliance with federal single audit requirements.
The PFO has also conducted meetings with the State Auditor’s Office, the Attorney General’s Office, the Comptroller’s Office and the Executive Office for Administration and Finance’s Federal Funds Office to coordinate pandemic funding oversight activities. Finally, the PFO represents the Office on the Equity and Accountability Review Panel created by Chapter 102 of the Acts of 2021.
III. Public Design and Construction
Since its inception, the Office has helped develop policies and procedures related to the Commonwealth’s public design and construction laws. In 2021, the Office worked with the Department of Capital Asset Management and Maintenance (DCAMM), MassDOT, the Massachusetts Port Authority, the Massachusetts School Building Authority, the Attorney General’s Office and other state and local entities to establish best practices in public construction.
A. Alternative Construction Methods
Pursuant to Chapter 149A of the Massachusetts General Laws, the Office reviews applications to use alternative delivery methods, including the CM at-risk and design-build methods.34 In addition, before certain state agencies and authorities may use alternative delivery methods on construction projects, the Legislature has charged the Office with reviewing and approving the procedures for utilizing those delivery methods. Consequently, the Office reviews and approves certain procedures for DCAMM, the Massachusetts Port Authority, MassDOT, the Massachusetts Bay Transportation Authority, the Massachusetts Water Resources Authority, the Massachusetts State College Building Authority and the University of Massachusetts Building Authority.
In 2021, the Office received 19 applications to use the CM at-risk delivery method, totaling over $1.4 billion in estimated project costs. The projects included the construction of six public schools, six affordable housing developments, one public charter school, two municipal office buildings, two public safety buildings, a public charter school, a pump station and a police station/district court. Applicants included the cities of Boston, Lawrence, Peabody and Somerville, as well as and the towns of Groton, Tisbury, Walpole and Wellesley. The other applicants included the Brookline, Cambridge, Ipswich, Medford and Somerville housing authorities and the Advanced Math and Science Academy Charter School.
B. Owner's Project Manager Review Panel
Staff from the Office represent the Office at the Massachusetts School Building Authority’s (MSBA) Owner’s Project Manager Review Panel (Review Panel). When a school district receives state funding to build a new school, it must use an owner’s project manager (OPM) to oversee the building project. The Review Panel, led by the MSBA, reviews each school district’s selection of an OPM, including the evaluation process the school district used.
As a member of the Review Panel, Office staff review each district’s process and evaluation of its OPM applicants. This review entails examining both the school district’s needs and the OPM’s qualifications, including the OPM’s project experience, managerial experience, backlog of other ongoing work and financial viability. Staff then participate in the Review Panel’s meeting, listening to school district presentations. After considering the presentations and reviewing the materials, the Review Panel may either agree with the school district’s selection of an OPM or recommend further review and consideration.
IV. Public Land Transactions
Each year, the Policy Division reviews a variety of real property transactions involving public property, including dispositions, acquisitions and long-term leases to ensure that the public’s interests are protected. In addition, the Legislature frequently mandates that the Office review and approve independent appraisals of real property that the Commonwealth, counties and municipalities propose to convey or acquire. The Office’s appraisal reviewers evaluate whether the analyses, opinions and conclusions in the appraisal are appropriate and reasonable. As mandated, the Office provides a report on each appraisal to the commissioner of DCAMM for submission to the House and Senate Committees on Ways and Means and the Joint Committee on State Administration and Regulatory Oversight.
Below are examples of transactions that the Office reviewed in 2021.
A. Lowell District Courthouse
Chapter 304 of the Acts of 2008 authorized the sale of the Lowell District Courthouse. In 2020, the Office reviewed the appraisal and the methodology used to value the property. In 2021, DCAMM proposed using a public auction to dispose of the property. The Policy Division is working with DCAMM to develop an accountable and transparent process to obtain the best price for the former courthouse.
B. University of Massachusetts’ Field Station in Waltham
Chapter 209 of the Acts of 2020 authorized the sale of the University of Massachusetts’ (UMASS) Field Station to the city of Waltham. In 2021, the Office reviewed the draft transaction documents and provided comments to UMASS. UMASS and the city closed on the transaction on March 1, 2022. The property sold for $17.4 million and is subject to a restriction limiting the use of the property to open space, recreation or agricultural purposes under Article 97 of the Amendments to the Constitution.
C. Easements
Pursuant to legislation, the Policy Division reviewed appraisals of permanent and temporary easements in (1) Boston to allow for an apartment development; (2) Somerville to facilitate the redevelopment of a public housing complex and private housing; and (3) Lynn for a roadway improvement project. In the separate reviews of each easement area, the Policy Division found that DCAMM’s appraisers used appropriate methodologies to support the valuations and appropriately analyzed the property rights associated with the grants of the easements. The Policy Division therefore approved the appraisal methodologies and opinions of value for the easements.
V. Springfield Technical Community College Assistance Corporation
Since 1994, the Springfield Technical Community College Assistance Corporation (STCCAC) has owned and operated the Springfield Technical Community College (STCC) Technology Park in Springfield. The Legislature created STCCAC to pursue opportunities for the benefit of STCC students and the Commonwealth. STCCAC uses a contractor to manage the Technology Park on behalf of its mission. The property consists of approximately 325,000 square feet, and multiple tenants occupy it, including a STCC. By statute, STCCAC must submit every contract requiring an annual expenditure of more than $100,000 to the Office for review and comment.
In 2021, STCCAC, with assistance from Springfield Technical Community College, conducted a procurement for property management services for the Technology Park. After conducting the procurement, STCCAC selected a property manager and, because the resulting contract exceeds $100,000, STCCAC submitted the contract to the Office for review. The contract contains terms and conditions related to the leasing, operation and management, and security of the property in Springfield. The contract also includes provisions related to the property manager’s responsibilities for accounting and recordkeeping requirements, among other terms. The Policy Division found that STCCAC’s agreement included adequate safeguards.
VI. Legislative Initiatives
Since it was established in 1981, the Office has reviewed and commented on proposed legislation during each legislative session. In addition, the Office regularly provides feedback to individual legislators who are developing both legislation specific to the districts they represent and legislation that affects the general operations of state and local government. The Office also responds to requests from the Governor’s Office to review legislation that the Legislature has passed and is awaiting the Governor’s signature.
The Office continued to provide these important services throughout 2021. For instance, the Office reviewed and commented on more than 100 pieces of legislation for the 2021-2022 legislative session. In 2021, the Inspector General and his staff also provided testimony and guidance to legislative committees on issues related to real estate transactions, fraud controls, post-retirement work policies, tax credits, and the procurement of public supplies and services. In all cases, the Office stressed the importance of transparency in government and the need for safeguards to ensure the appropriate oversight of public funds.
VII. Proposed Legislation: 2021-2022 Session
Chapter 30 of the Massachusetts General Laws permits the Office to file legislation in the November of even years for the upcoming legislative session. In November 2020, the Office filed the following bills for the 2021-2022 legislative session.
A. House 4, An Act Relative to Chapter 12A
House 4 would strengthen the Office’s ability to prevent and detect fraud, waste and abuse. Modeled after the federal Inspector General Empowerment Act of 2016, the bill clarifies that the Office has access to all records of a public body unless the Legislature expressly limits that access. The bill would also extend whistleblower protections to private employees. Any person who violates these whistleblower protections would be subject to a fine and liable for damages. Further, the bill would allow the Office to refer a potential criminal matter to a district attorney in the same manner that it refers cases to the U.S. Attorney and the Attorney General. Finally, the bill would permit a member or designee of the Inspector General Council to attend a private session where testimony is given under oath at the request of the Inspector General, but it removes the attendance requirement. The role of the Inspector General Council otherwise would remain the same, including approving summonses to take testimony under oath.
The Inspector General testified in favor of House 4 before the Joint Committee on State Administration and Regulatory Oversight on September 14, 2021. The committee reported this bill out favorably and referred it to the House Committee on Ways and Means. As of the date of this report, the bill remains in the Committee.
B. House 5, An Act Relative to Inspector General Annual Report
House 5 would promote efficiency by consolidating the Office’s annual reports into one comprehensive report. Specifically, the bill would modify the requirement that two embedded units in the Office – the Transportation Unit and the State Police Division – submit separate annual reports to the Legislature. Instead, these reports would be included in the Office’s annual report required under Section 12 of Chapter 12A. The bill would also require the Office to submit its annual report to both the Joint Committee on Transportation and the Joint Committee on Public Safety and Homeland Security, the committees that currently receive the Transportation Unit’s and the State Police Division’s annual reports.
The Inspector General testified in support of House 5 before the Joint Committee on State Administration and Regulatory Oversight on September 14, 2021. As of the date of this report, the bill remains in the Committee.
C. House 6, An Act Relative to Chapter 30B
House 6 would increase the fine for causing someone or conspiring with someone to solicit or award a contract in violation of the Uniform Procurement Act, Chapter 30B of the Massachusetts General Laws (Chapter 30B). Based on the Office’s investigations and reviews, those who conspire to violate Chapter 30B can receive hundreds of thousands of dollars as a result of their misconduct while depriving a municipality of needed goods or services. Consequently, the current fine – $2,000 – is an insufficient deterrent to violating Chapter 30B. Raising the fine to $10,000, as the Office proposes, would have a greater deterrent effect.
The bill also would update Chapter 30B to include the correct statutory references to other recently amended statutes. The bill would also strike a section of Chapter 30B that is duplicative.
The Inspector General testified in favor of House 6 before the Joint Committee on State Administration and Regulatory Oversight on September 14, 2021. As of the date of this report, the bill remains in the Committee.
D. House 7, An Act Revising Chapter 30B
House 7 would augment certain sections of Chapter 30B to promote best practices, fair competition and transparency. The bill defines certain terms, clarifies certain sections of the statute and enhances the process an awarding authority must use when soliciting quotations.
Under the proposed revisions, awarding authorities would be able to use requests for proposals for procurements in the $10,000-to-$50,000 range.35 The bill also clarifies that an awarding authority cannot allow a vendor to modify its quotation for goods and services after submitting it to the awarding authority. Further, the bill would require awarding authorities that do not have written procedures for the disposal of surplus supplies to use sound business practices to dispose of surplus supplies valued at less than $10,000. The bill also would require contractors to notify the Office when they have credible evidence of criminal conduct, civil violations or overpayments.
In addition, the bill would clarify that a procurement officer may cancel a solicitation for supplies or services if it is in the best interest of the awarding authority and the procurement officer documents
the reason for cancellation. Finally, the Office would be permitted to promulgate regulations related to the interpretation and enforcement of Chapter 30B.
The Inspector General testified in favor of House 7 before the Joint Committee on State Administration and Regulatory Oversight on September 14, 2021. As of the date of this report, the bill remains before the Committee.
E. House 8, An Act Relative to Public Employee False Claims
House 8 would protect municipalities, counties and the state when public employees knowingly submit false or fraudulent claims for hours they did not work. Under the bill, public employees would be liable for treble damages for any false or fraudulent claims for hours worked.
The Inspector General testified in favor of House 8 before the Joint Committee on the Judiciary on September 23, 2021. The bill received a study order from the Committee.
Additional Resources
Contact for OIG Annual Report 2021: Policy and Government Division
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| Date published: | April 29, 2022 |
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