How Pickering Used An Unexplained Project To Undermine The New Medicaid Fraud Prevention Law

By Keith Plunkett | August 6th, 2017 at 4:27 am

BY: Keith Plunkett / Editor

Keith Plunkett is a Policy Consultant, Editor, Writer, Founder and Publisher of

Filed Under: Budget, Contributor, Culture, Democrats, Ethics, Feature Stories, Federal Government, health, Insurance, Jim Hood, Keith Plunkett, Legislature, Medicaid, Medical Care, Mississippi, Mississippi PEP, MS State Government, Obamacare, Opinion, Politics, Stacey Pickering

Apparently, State Auditor Stacey Pickering’s surprise new Medicaid reform project isn’t really new and it isn’t really his. But it’s difficult to know for sure, because he has yet to show that it really exists. 

A report by the Jackson Free Press on Wednesday, ‘Medicaid Fraud Solutions: Two Ways,’ revealed that Mississippi’s State Auditor Stacey Pickering has been quietly collaborating to involve the state Department of Medicaid (DOM) and the Attorney General’s Office in a federal government data-mining training program. But it appears the auditor is more than just a little late to the party.

Data-mining for investigating Medicaid fraud was once restricted behind a wall of legal privacy protection, isolated from use by state AG’s across the country. But that was before 2013. Four years ago the federal Dept. Of Health and Human Services dropped the prohibition. That’s when Medicaid Fraud Control Units (MFCU), the lead investigators and law enforcement agencies in the states when it comes to healthcare related crimes and fraud, were allowed to use expanding options in data analysis.   As the data analysis reveals outliers worthy of further review, these correlations are checked using more traditional investigation.

The JFP report repeatedly described the project Pickering announced at the Neshoba County Fair last week as a “bi-partisan approach” being ‘driven by Pickering’. The project, the report says, would “be able to provide lawmakers and Mississippians with an accurate picture of how much Medicaid fraud happens in the state.”

Out Of Touch

But, when I spoke with several legislators who actively worked to get the Mississippi Medicaid Fraud Prevention Act to the governors desk earlier this year, the news of Pickering’s project was a complete surprise. In fact, none of the legislators I spoke with had been made aware of the auditors comments nearly a week after he made them.

Why was Pickering keeping the project hidden from the very lawmakers he suggested it will help? That doesn’t sound like someone interested in providing lawmakers with “an accurate picture.”

The JFP report says of the auditor: “Pickering didn’t ask for extra funding to do this, but reached across party lines and is engaging with other red and blue states and the federal government to ensure that the system is fair and implemented correctly.”

The closest Pickering got to providing an answer to the question of why he kept the project secret from lawmakers was this:

“We did it kind of strategically; it’s not a Republican or Democrat-driven program,” Pickering told the Jackson Free Press. “It’s accountability. You’ve got auditors from big states, small states, red states, blue states, purple states—we’re sharing audit protocols that have been evaluated”.

Accountability? Then why keep the project secret from elected lawmakers who had already passed a Medicaid reform bill into law? Acting “kind of strategically” doesn’t suggest a non-political role. It suggests an hyper-political role, and certainly not one whose role is to engage with others to be sure that the “system is fair and implemented correctly.”

As of now it’s not entirely clear who is doing what to whom, or who is leading whom and in what effort, although Pickering’s decision to discuss it exclusively with JFP offers a hint or two.

Leave it to Republicans to finally get a new law passed by legislators to introduce some efficiency standards that might “reduce the size and scope of government,” only to have another Republican officeholder inject an additional layer of complexity before it even gets moving.

A New Bi-Partisan, Non-Political Project?

I did some digging. I can find no newly announced or proposed federal project like the one Pickering describes; not listed in the Mississippi Medicaid State Plan, the administrative code that designates agency authority, or in HHS Office of Inspector General’s documents. Nothing recent matched up with Pickering’s program description for “sharing audit protocols that have been evaluated”.

There was something not so new that did, an ongoing effort to further increase protections of patient data via the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the 2009 expansion of HIPAA, called The Health Information Technology for Economic and Clinical Health Act (HITECH). Both have provided federal incentives through various funding mechanisms to accelerate the adoption of electronic health records (EHR).

As government has required through regulations for hospitals and clinics to translate medical information into electronic format, the technologies have become more widely adopted and records transferred to data files. This is a major opportunity for criminals to exploit security vulnerabilities.

So, while it is certainly possible that the ongoing HHS projects are related to how the state auditor plans to approach data-mining within Mississippi Medicaid, I think it’s safe to say that neither are new projects created by the Mississippi State Auditor. HIPAA is nearly two-decades old.

Exactly how developing strong HIPAA standards will give Mississippi lawmakers an “accurate picture of how much Medicaid fraud happens in the state” isn’t immediately clear, however. That such practices would be needed in connection with the data-mining project makes perfectly good sense. But thanks to the aforementioned technology related privacy laws these security practices are a requirement of any entity who is handling the data. In fact, the new Medicaid Fraud Prevention Act already covers the legal requirements of healthcare data-mining logistics.

How one might arrive at the position that the common sense protections in the new law passed by the legislature are somehow antithetical to other reforms appears to have much more to do with protecting political turf than protecting beneficiaries of government welfare services.

Leadership is about what you do for others. Politics, on the other hand, drive polticians many times to attempt to “steal thunder” of others. That’s an old term that, in modern day parlance, is the equivalent of Twitter trolling (using the popularity of a trending Twitter hashtag to bring attention to yourself regardless of the relationship the tag has to your message or tweet). Whether it’s Twitter trolling or #AgendaTrolling its still squeezing oneself into the best possible position to gather the benefits or attention from the work of others.

If Pickering is that bored as auditor then I’m sure there are no shortage of suggestions from the public for audits they would like to see performed.

Fraud Begets Fraud

MCFU Statistical Data By State: Click chart for full listing.

There have been high level cases of International organized crime groups stealing Medicaid and Medicare medical records by hacking into systems to nab millions of records at a time. Medical records are worth 10 times the amount of a stolen credit card on the black market because they offer so much more information a criminal can use for a variety of nefarious reasons. Identity theft is one of them, and this includes the use of data to file fraudulent Medicaid claims.

A lack of agreement on the part of Democrats over how prevalent might be the number of unqualified beneficiaries is noise. Acting out Against reform efforts by warning of a system mishap that might cause disruption of benefits is ludicrous. Systems arent full-proof. Mistakes aren’t permanent. Threatening beneficiaries with a fearful, technical dooms-day scenario can only be from the mindset of two positions:

  1. Injecting scare tactics because one is unable to counter the benefits associated with reform, or
  2. believing the Medicaid system is managed by laggardly and befuddled employees.

Either way, this is only evidence of the need to put in place more frequent assessments. Those now on Medicaid and receiving benefits from other welfare programs must undergo scrutiny, especially since we know so much fraud goes on in the other parts of the system.

The General Accounting Office numbers show that Mississippi Medicaid lost over $531 million to fraud and abuse in 2015, but only recovered $14 million. That’s a loss of $1.4 million per day. No system can be maintained with that kind of loss.

While all of these challenges point to the need of Medicaid reform, but none explain expanding the role the state auditor will play under his sudden plan for Medicaid reform. Then again, neither did the state auditor.

Medicaid Fraud Control Units Have The Authority And The Manpower

The one instance I found that fits most closely with the auditors description of data-mining is what the HHS Inspector General finalized as an administrative rules change back in 2013. However, in the original proposal the HHS rule had nothing to do with state auditors. It pertained to the fraud units already part of Offices of Attorney General in states across the country.

The 2013 HHS rules change provided more authority to the Medicaid Fraud Control Units (MFCU) to work with the Department of Medicaid to conduct data-mining audits, which the agencies previously had been explicitly prohibited from doing. Like in most states the MFCU in Mississippi is a division of the state Attorney General’s office.

Most states turned down the federal money and the data-mining project in 2013. By December of 2015, as Medicaid enrollment numbers began to surge from ObamaCare, improper payments doubled, jumping from 5.8%, or $14.4 billion, in fiscal 2013 to 9.78%, or $29.12 billion, in fiscal 2015. The Feds had a monster on their hands and they once again began trying to get states to focus in on transparency and protection against fraud to slow it down.

The total improper payment estimate in fiscal year 2015, attributable to 121 programs across 22 agencies, was $136.7 billion, up from $124.6 billion in fiscal year 2014. Most of the $12 billion increase was due to estimated improper payments for the Medicaid program, alone.

It will be interesting to see what exactly the state auditor’s office will do when, and if, the time comes for this new bi-partisan partnership. According to the report:

the state’s Division of Medicaid will integrate its work with that of the other states, alert the attorney general’s office to violations, and allow the auditor’s office to easily hold Medicaid providers and recipients accountable.

For several years, it’s been AG Jim Hood holding “providers and recipients accountable” as he prosecuted fraud. The MCFU at his disposal is, after all, a fully functioning law enforcement agency staffed by attorneys, investigators, analysts, auditors, nurses, and support staff trained in health care fraud.

35 full-time investigators are with the Mississippi MFCU. Their actions are 25-percent funded by the State of Mississippi, with the other 75-percent coming from the feds.

A Kinder, Gentler Bi-Partisan Plan?

Pickering tells JFP that, unlike the legislatures new law to reduce fraud, “his” new plan is to find out if there is any fraud in Mississippi’s Medicaid program and where it exists.

The report relates that Pickering’s plan to address Medicaid fraud “stands in stark contrast to legislation the Republican supermajority in the Mississippi Legislature passed this past session” and this new “bi-partisan program is not targeted at either Medicaid recipients or providers; instead, it looks at the whole system to identify outliers.”

JFP was so enamored with Pickering’s “bi-partisan approach” that they not only continued to describe it as such, but they rarely used any other description that would help enlighten the public as to what Pickering’s plan would do that was so different from the Medicaid Fraud Prevention Act.

JFP also included Pickering in an editorial, Cheers to Bipartisan Common Sense. He was featured right alongside U.S. Senator John McCain for having the courage to stand against his own party and vote against repealing ObamaCare, a rejection of a promise the GOP has been making and its candidates have been parroting for nearly a decade.

Meanwhile, conservatives are wishing we could find enough U.S. Senators in any party with the courage to free healthcare from the government bondage of the third party payer system.

Having just thanked Pickering for bi-partisanship and congratulating him for “non-political treatment of the very important issue of Medicaid, the JFP report then takes aim at discrediting the new law by partisanship and political treatment of the very important issue of Medicaid:

Republican lawmakers tried to eliminate fraud on their own terms this year, by passing what they called the “HOPE Act” to increase transparency. The bill enables the Division of Medicaid and the Mississippi Department of Human Services to implement a new verification system to audit providers and recipients of Medicaid, food stamps and Temporary Assistance for Needy Families, or TANF, funding. 
 House Bill 1090 was largely modeled off of draft legislation from other states and by special-interest groups, and the measure passed with a loud opposition from Democrats, decrying the measure as another way to kick people off TANF, SNAP and Medicaid rolls, despite Mississippi being one of the poorest states in the country.

It continues:

Several parts of the HOPE Act became state law on July 1. One part of the bill codifies current MDHS policies into state law. The work requirement, which requires Mississippians to be working, seeking work or be a part of a work program if they want to receive SNAP, is now state law, after HB 1090 prevents the state from ever asking the federal government to waive that requirement.

The law also makes an MDHS policy permanent, which says a family who has received benefits for 10 consecutive months cannot receive additional funds if a new child is born into that household. Critics say these provisions, often called family caps, are based on the “welfare queen” stereotype.

Wonder who those “critics” are who might be saying provisions in the new law are based on stereotypes? Seems to me the provisions are based on logic and common sense. If a person or family is having a hard enough time they require public assistance from welfare programs, doesn’t it make sense to be looking for a job? Doesn’t it make good sense to not introduce another mouth to feed into the family?

“I’m excited about what we’re going to accomplish (collaborating with) Medicaid, our investigators, the attorney general’s investigators and also provide the Legislature a real, true picture of what’s taking place, you know?” Pickering said.

“We’re looking for, what do the facts say? Where is the money going? Where is the coverage? And what are providers doing?”

Is the implication here that legislators who passed the new law aren’t interested in facts? Don’t want to know where the money is going? Aren’t concerned about a beneficiaries coverage? Are we expected to believe they voted to reform Medicaid but don’t care “what providers are doing?” After all, they went to the trouble of doing the heavy lifting, of writing and negotiating a bill, of explaining it to the public and defending it against fear-mongering opposition. Their actions speak loudly. So far all Pickering has shown the public is a throw-away line in a speech from Neshoba County Fair that only one left-leaning publication picked up on. A week later and there is still no reference to it on the auditor’s website.

The Medicaid Fraud Prevention Act signed into law sets in place the directives and tools to answer all the questions Pickering asks. After reading so much self-congratulatory talk from the state auditor, but so little detail about “his” program, it’s Pickering that should be answering questions and discussing the details.

Because the taxpayers deserve an explanation, and . . .

“A real, true picture of what’s taking place, you know?”