Are Medicaid’s “Tentative Notices of Overpayment” Violating State Law?

Today I represented a health care provider who provided Community Support and Community Support Team Services to many Medicaid recipients back in 2010 (it still provides services to Medicaid recipients, but what is important here in this blog is back in 2010).  We sat in a small conference room at DMA for an “informal” reconsideration review opposite a PCG nurse, a DHHS administrative representative, and adjacent an “objective” DHHS-employed, Hearing Officer. Back in 2010, this health care provider (HCP) went through the correct hoops before providing these Medicaid services, which are now in question. Per Medicaid regulations and state law, it had a clinical assessment for each Medicaid recipient (MR), it submitted a Person-Centered-Plan (PCP) for each MR, it provided service orders, signed by the appropriately, licensed-personnel.  Every one of these Medicaid recipients’ services from 2010 (after authorization by a different agency), determined that those prior authorized services did not meet the requirements of the Medicaid rules (for various reasons). Now (after proper authorization in 2010) the State is turning around, pointing its finger at the HCP (which already properly received State authorization), and saying, “Give me back the money!” Is this right? Can the State say, in essence, in the past, “You are good to go,” and then, in the present, say, “Our mess-up is now your mess-up. You (we) messed-up, so you (NOT we) must pay us (NOT you) back?”

Wait, let me back up…for those who do not know how a provider gets authorization for a Medicaid recipient to receive a certain Medicaid service…let me explain…it is not like private insurance:

When a Medicaid-eligible person comes to an HCP, a licensed professional conducts an assessment. In Medicaid-lingo, the assessment is called a CCA or Comprehension Clinical Assessment. Concurrently (or close to it), the team meets to draft an individualized PCP. Folks, this is a lot of work. It takes numerous people and the cooperation of the Medicaid recipient. The HCP also drafts an Inpatient Treatment Report (ITR). There are other documents, but these are the main ones. Next, the HCP sends the documentation to ValueOptions, North Carolina’s contracted agent to review all Medicaid authorization requests. A review by ValueOptions is two-fold. First, a non-licensed (usually) clinician reviews the submitted documents.  He or she determines (a) whether the documentation is complete; and, if so, (b) whether it appears, to an unlicensed-eye (although in reality, these people have been around the block), that the recipient should receive the requested Medicaid services. If documentation is missing, the recipient is rejected.  If the documentation is complete and the information shows authorization may be necessary, the documents go to a second-tier at ValueOptions. Here, a licensed professional get involved. A licensed professional reviews the documentation for substance. Do the documents indicate medical necessity for the requested services. The key phrase is “medical necessity” (although, FYI: this phrase is never defined in regulations).  At this time, the licensed professional at ValueOptions takes the appropriate DMA Clinical Policy (for mental health, usually, #8A is used) and compares the entrance criteria in the policy against the substance of the documentation submitted by the HCP.  [Quick sidebar: What does this tell HCPs???? It should tell all HCPs that MORE documentation is better. More is better.] Then, using the best objectivity humans can use, the licensed professional at ValueOptions attempts to determine whether the Medicaid-eligible person is authorized for the requested services. [Very important: UNLIKE private insurance, prior authorization means a licensed professional reviewed the request and authorized it.] So after all that……

The State, via ValueOptions, has told the HCP, “Yes. You may provide services to this Medicaid recipient. The State has reviewed the documentation and put her stamp of approval. Proceed.” So should an HCP proceed? Or still be worried?? Apparently, still be worried.

The HCP I represented in this reconsideration review today, received that stamp of approval by the state. However, two years later, it received what is called a “Tentative Notice of Overpayment.”  In essence, the notice stated that the HCP owed (for the sake of anonymity I have changed all names and dollar amounts) DHHS (or the State) $200,000.00 for overpayments of Medicaid services (all of which previously authorized by the State-contracted-agency before providing these services). Some of the reasons that PCG gave for the overpayment included:

  • Lack of documentation
  • Incorrect PCP dates
  • Ineligibility of Medicaid recipient for service rendered
  • Failure of documentation to demonstrate the professional working had the necessary credentials
  • Lack of service note

I ask…Should the above-enumerated list not have been determined BEFORE the HCP was told by the State to,” Go Forward????” Why after 2 years, can the State, in retrospect, with a different agency that does NOT have access to all the documents to which ValueOptions does, say, “I know I said it was ok, but now it is not ok, so give me back my money.” ?? Is this fair? Is this legal?

I know a statute exists that allows the State to retroactively-police, already-paid-Medicaid-funds. However, should this statute not be challenged? Does the retroactive law seem fair to the laymen? Everyone understands the State’s ability (without speaking for everyone, I guess I should say, I understand) to police the Medicaid services. But when the State said, “Go forward.” ??? I question… Should we????

Anyone else?

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on November 1, 2012, in Medicaid Recoupment and tagged , , . Bookmark the permalink. Leave a comment.

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