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May 18, 2017

Will State Medicaid Fraud Control Units Be Allowed To Prosecute Abuse and Neglect In All Settings?

State Medicaid Fraud Control Units (MFCU) are well known for investigating and prosecuting reimbursement fraud in the Medicaid program. MFCUs are also well known for their investigations and prosecutions of abuse and neglect of nursing home residents. Now if the Attorneys General of thirty-seven states have their way, MFCUs will be able to investigate and prosecute abuse and neglect of any Medicaid beneficiary in any care setting.

On May 10, 2017, the National Association of Attorneys General urged Health and Human Services Secretary Tom Price to loosen current regulatory restrictions on the use of their federal funds so as to permit abuse investigations in non-institutional settings such as home care. The Attorneys General, including New York's Eric Schneiderman, argue that the regulations are outdated, arbitrarily restrict their ability to protect Medicaid beneficiaries from abuse and neglect as Congress intended, and should be replaced or eliminated.

If the MFCU's jurisdiction is expanded, every New York program funded by Medicaid could be impacted. Agencies that provide Medicaid services to individuals with behavioral health issues, and intellectual and developmental disabilities, as well as individuals that are cared for at home would fall under the MFCU's new authority. This authority would supplement the authority of state regulatory agencies currently charged with investigating and enforcing "abuse and neglect" cases.

In New York, the Department of Health, Office of Mental Health, and Office For People with Developmental Disabilities, among others, already enforce "abuse and neglect" laws. In 2013, New York added the Justice Center For the Protection of People With Special Needs to the group of state agencies investigating and prosecuting "abuse and neglect" cases. Since its arrival, the coordination of the Justice Center's work with that of other state agencies has proven to be difficult. If the MFCU's jurisdiction is now expanded to investigate and prosecute abuse and neglect in any care setting, the jurisdictional lines between and among all of the state agencies will be even blurrier. The likely result is an increase in the confusion, frustration and inefficiency that has been reported by Medicaid providers since the arrival of the Justice Center. Whether the expanded authority of the MFCU will result in additional protection for Medicaid beneficiaries remains to be seen.

If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization, please contact Susan A. Benz, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at or Melissa M. Zambri, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at


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