Monthly Archives: June 2013

How Dare They! That Money Could Have Been Used on a Medicaid Recipient!

On one of my many trips to the Division of Medical Assistance (DMA), I noticed two interesting items: (1) The flower vases at DMA are filled with paperclips, which securely anchor artificial flowers; and (2) A flyer reads, “Thinking Medicaid fraud and abuse “don’t hurt anyone” is just wrong! Every dollar wasted or stolen is a dollar that could have been used on provide health care for someone who needs it and follows the rules.”

The first item, the flower vases filled with paperclips and artificial flowers, I chalked up to resourcefulness.  Someone at DMA wanted a little bit of decor…a bit of color…but, definitely did not want to spend our taxpayers’ money on a bouquet of flowers, which would just die and need to be replaced, or a piece of art, which could be construed as a poor use of taxpayers’ money.  Instead, this resourceful person used office supplies and a cheap silk flower to decorate DMA.

The second item, the flyer,I chalked up to good propaganda. I mean, everyone wants to discourage Medicaid fraud, right? Obviously, Medicaid fraud costs taxpayers lots of money.  Obviously, when a provider commits Medicaid fraud, we, as taxpayers, think….”How dare they! That fraudulent provider took money that could have been used on a Medicaid recipient!”

But…what about the Medicaid dollars being wasted on paying inept, third-party contractors erroneously conducting post-payment reviews and putting many Medicaid providers out-of-business by billing them for crazy, large, extrapolated amounts of money that they supposedly owe back to the government? Or erroneously conducting prepayment reviews? Or mis-managing behavioral health?  What about THOSE Medicaid dollars that could have gone to services for Medicaid recipients????

Think about it.  We are paying these third-party contractors with Medicaid dollars…Tax dollars.

We spend approximately 36 million, tax dollars a day on Medicaid.

When I first heard that statistic, I thought, “Wow! There are a lot of people on Medicaid.” Which is not completely incorrect.  There are a lot of people on Medicaid.  Approximately 1.5 million North Carolinians. But, the problem is that the $36 million a day does not go to treatment and/or medical services for Medicaid recipients. Much of that $36 million a day goes to third-party contractors who may or may not be conducting their jobs appropriately, efficiently, or, even, correctly.

Say I apply for and get a job at the Carolinas Center for Medical Excellence (CCME). My salary would be (I don’t know whether CCME makes any of its own money from private money, but), at least, partially, funded by federal and state taxes.  Which means, if I were hired by CCME as a Medicaid auditor, theoretically, my audit results would be or should be available to the public.  As one who receives taxpayer money, my findings should be available to the taxpayers…right?  So if I were doing a crappy job as a Medicaid auditor, I should be accountable (for my crappiness) to all taxpayers. Just like the resourceful DMA employee would have been accountable if he or she had bought an expensive piece of art instead of filling flower vases with paper clips and cheap silk flowers.

Going back to the “accountability to taxpayers” theme, shouldn’t the third-party contractors receiving federal and state Medicaid taxpayer money be accountable to any interested taxpayer?

And shouldn’t the taxpayers in NC be concerned if these third-party contractors are not doing their jobs appropriately, efficiently, or, even, correctly?

And the $36 million/day…shouldn’t we be concerned that this $36 million/day is not going to service Medicaid recipients, but, instead, much of the $36 million/day is going to the salaries for people who work at these third-party contractors and who are not conducting their jobs appropriately, efficiently, or, even correctly.

If I could boycott paying state and federal taxes until the taxes were appropriately used, I would.  But I believe I would end up in jail. Maybe we need a 2013 Boston Tea Party.

Remember the Boston Tea Party?

The Sons of Liberty, a political group in Boston during the American Revolution, was really mad about England taxing the colonists’ tea. They were ticked off about England’s Tea Act, which was passed in 1773. Colonists objected to the Tea Act because they believed that it violated their fundamental rights (remember, the violation could not have been considered a violation of constitutional rights, as the Constitution was not ratified until 1787)  The slogan for the Boston Tea Party was “No taxation without representation.”  Or, in other words, we can be taxed only by our own elected representatives and not by England because no colonist is a member of Parliament in England. So the colonists dumped a shipload of tea into the ocean to make a point.

Today, if a group of “radicalists” (because that is what they would be called nowadays) dumped a shipload of Medicaid funds into the ocean off the Boston harbor that group would, most likely, be jailed for stealing, destruction of property, trespassing, and probably contamination of the waters (if that were a criminal act), but definitely sued civilly for monetary damages.

Personally, I expect people receiving compensation from my tax dollars to (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly.

How do we determine whether these third-party contractors are conducting their jobs (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly?

If I hired a painter, how would I determine that painter were doing his or her job (a) appropriately; (b) efficiently; and (c) correctly? Answer: Supervision. If I told my painter I wanted my bathroom painted red and he or she painted the bathroom green, I would (a) fire him or her; and (b) sue for breach of contract (seriously….WHO would want to work for ME???).

Yet, the State of North Carolina hires companies that do not conduct the jobs for which the company is hired appropriately, efficiently, or correctly, and, yet, NC does not fire the company…does not sue the company.  It’s almost as if….if I hire someone else to do it, then I am not to blame.  It’s as if….I had an associate who completely missed an appeal deadline, and, instead of saying, “Hey, I am the partner…I am the one in charge….Blame me…,” instead I said, “Whoa there, client, it’s not my fault. Blame my associate.”

Someone has to be accountable!

Had my previously-mentioned, resourceful, DMA employee bought a bouquet of fresh-cut flowers for decoration for the DMA office every week with taxpayers’ money or an Edvard Erikson statue of “The Little Mermaid” for decoration, someone would have been accountable, most likely, my (then non-resourceful) DMA employee.

Yet, DMA hires third-party contractors that are not conducting their jobs appropriately, efficiently, or correctly, and DMA says, “Whoa there, taxpayer, it’s not my fault. Blame the third-party contractor.”

And I think, “How dare they! That inappropriate, inefficient, and inaccurate third-party contractor took money that could have been used on a Medicaid recipient!”

A Very, Common Blooper in Dental Medicaid Audits

“To err is human…”  Alexander Pope

Remember that show “TV”s Bloopers and Practical Jokes?” I think Dick Clark was in it (maybe not…it was a long time ago…I watched reruns). Anyway, I remember laughing so hard at some of the bloopers.  I also like when, after a movie is over, the director highlights the casts’ bloopers. Something about watching someone else mess up that makes me realize everyone is human.

But accidentally erring is completely different (and a lot funnier) than a RAC auditor misapplying a clinical policy, be called out on it, and continue to audit the same erroneous way without regard or fortitude to change.

I have said over and over, no health care provider who accepts Medicaid is safe from the grasp of the over-zealous, under-trained Medicaid auditors. Welcome, dentists, to the “oh-so-ever-interesting-Medicaid-three-ring-circus.”  Here are your Tentative Notice of OverPayments (TNO). And here are your bloopers.

I’ve seen a few common themes in the claim audit findings for a post-payment review of a dental practice, but want to discuss one re-occurring theme…one that has poked its rearing head more than most other issues I have seen, thus far.

RAC auditor recoups the Medicaid reimbursements because: The “attending provider” NPI number did not match the “provider rendering the services” NPI number.

The RAC auditor cites DMA Clinical Policy 4A as the source of the rule that the attending provider and rendering provider numbers must be the same.

DMA Clinical Policy 4A states, in pertinent part, “Enter the attending provider’s NPI for the individual dentist rendering service. (This number must correspond to the signature in field 53.)” (Field 53 is the field for the treating provider).

Yet,wait, young auditor, what year DMA Clinical Policy 4A are you using? 2013? Or the year that is applicable to the date of service (DOS) you are auditing?

Because prior to the 2013 Clinical Policy 4A, earlier 4A Policies read as such: “Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”

Should versus must….must versus should…

Look at these examples:


  • People should protect the environment.
  • People should be kind to others.
  • You should go see “Man of Steel;” it is very good.


  • Thou shall not murder. (Shall is an old form of must, and a bit more British).
  • People must stop completely at a stop sign.
  • You must stop talking!

See the difference? If someone tells me that I should go see an art exhibit, I will say, “Thank you.  I will see if I can fit it in my schedule.”  If someone tells me that I must abide by a rule, I will ask, “What will be the penalty if I do not?”

“Should” denotes a suggestion.  “Must” denotes a command.

So going back to…

“Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”So…if the number “SHOULD” correspond, then, obviously, the number “MUST” not correspond. Right?

Bloopers are funny. Redundant errors are not.

Why My Career, as a Medicaid Litigator/Medicaid Provider Advocate, is the Best, Most Rewarding Career…Ever!

I have the best and most rewarding career…EVER! It’s not the easiest career. It’s not a 9-5 job. When I schedule family trips, I normally have to cancel the trips or cut them short.

Like next week, my extended family on my dad’s side gets together every year for a week at Emerald Isle, NC. So about 3 months ago, I put in my secured leave with the Office of Administrative Hearings (OAH) for next week. Lawyers have to request “secured leave” for vacations. That way, the courts will not schedule hearings or mediations, etc. during the requested vacation time. Secured leave is really the only way to ensure an attorney gets a vacation. In my Medicaid practice, I normally only practice in OAH. For the most part, my clients have administrative complaints, not civil complaints, which would take me to Superior Court. So, I filed my secured leave in OAH only. Well, it just so happens that one of the State’s agents has refused to comply with an Order executed by an Administrative Law Judge (ALJ) in OAH. The consequences of the agent’s refusal could be dire. So, we had no choice but to file a Writ of Mandamus in Superior Court. A Writ of Mandamus is an extremely, extraordinary motion. We filed it last week. Superior Court scheduled the Writ hearing for Monday, June 24th (supposedly the 3rd day of my family vacation). So, my vacation is shortened. My client, especially in this specific instance, is just more important than a day or two at the beach.

Anyway, going back to how my career is the best career ever…

My clients are health care providers that choose to accept Medicaid. They are behavioral healthcare providers, dentists, durable medical equipment suppliers, neurologists, primary care physicians, speech therapists, ER physicians/hospitals, hospice providers, etc.  No matter the service my clients provide, the common thread is that the provider chooses to provide services to Medicaid recipients.  In some fields, these providers willing to accept Medicaid are few and far between.  Sometimes Medicaid recipients are placed on a 3-5 month waiting list only to get to see a health care provider for the first time.

My clients are good people.  My clients are empathetic.  They understand that few providers choose to accept Medicaid. Nevertheless, these providers choose to provide services to the most needy people in North Carolina.

My clients are not greedy.  They choose to accept Medicaid despite the low reimbursement rates, despite the complex and burdensome amount of regulations, despite the need to constantly google “NC Medicaid” for Implementation Updates or Special Bulletins, despite the need to constantly attend seminars on Medicaid updates, despite the need to jump through hoops, whether it be CAHBA certifications or applications with the Managed Care Organizations (MCOs), despite the need to undergo harassing audits, and despite the risk of the Division of Medical Assistance, or one of its agents, to merely terminate their Medicaid contract without due process.  My clients understand these risks and negative aspects, yet they choose to continue to serve Medicaid recipients.

My clients serve the most needy, most mute, and most underserved population in NC.  Obviously, Medicaid recipients, by definition, are the most poor citizens in our state.

My clients are scared. They have been told by the state or its agents that they owe money, that they have “credible allegations of fraud,” or indications of “abhorrent billing practices.” These allegations are unsubstantiated.  My clients served their consumers well.  But they have to defend these McCarthian-istic allegations, and health care providers, in general, are not litigious.  My clients are scared.

My career is the best and most rewarding career ever because I represent clients, who are good people doing good things.

My career is the best and most rewarding career ever because, by helping my clients, I am helping voiceless, Medicaid recipients.

A week or so ago, a client sent me a card saying, “Knicole and Elizabeth [one of my upcoming star-associates], Thank you for all you have done.  You have saved a company, 140 jobs, and over 500 Medicaid recipients from having no provider.  I almost cried.

I have always looked at my career as: By devoting my career to Medicaid providers, I am able to serve, indirectly, Medicaid recipients.  Medicaid recipients, for the most part, sadly, cannot hire me (believe me, I wish I could work for free), but, by my work for Medicaid providers, I am able to help Medicaid recipients by helping the providers the recipients so desperately need.

But this past week, I had the opportunity to help a Medicaid recipient directly, not indirectly. And, I left the hearing with goosebumps, good feelings, and a desire for more.

One of my clients had his or her Medicaid contract terminated; let’s call this person X.  Because of X’s termination of Medicaid contract, a Medicaid consumer, a teenage girl, who had seen X weekly for 6 years, was, suddenly, disallowed to see X.  Let’s call her ‘A.’  Without X, A spiraled.  A became suicidal and homicidal, both at home and at school. She begged to see X.  Since not being able to X, A was hospitalized 2x and was taken from her family home and placed in therapeutic foster care. All because A was disallowed to see the one therapist she had become to trust over the course of 6 years.

I decided to take A’s case pro bono.

I filed a Temporary Restraining Order, Motion to Stay, and Preliminary Injunction (TRO) on behalf of A. I argued that A was stable (as stable as possible for a person suffering from her mental illnesses) while she was able to see X.  When X’s Medicaid contract was terminated, A was not able to be seen by X.  A refused to go to another provider and spiraled.  I argued that A should be able to see X while A and X’s lawsuits went forward.  A should not suffer while X’s Medicaid contract was erroneously terminated.

A’s mother testified emotionally.

The Judge has not officially ruled yet. But, at the end of  the hearing, he wanted to ensure that, while he was deciding the ruling, A would be able to receive services from X.  I informed him that, no, A was not currently receiving services from X (despite the TRO being granted the prior week before the preliminary injunction hearing).

The judge looked at counsel for the MCO (the MCO that was not allowing X to see any Medicaid recipients) and said…Why?

Long story, short, my Medicaid recipient client was emotional (in a happy way) with the outcome. While my provider clients are also emotional (in a happy way) with the outcomes, this seemed different.  Had I not agreed to work pro bono, this person may never had received relief for her daughter.

Pro bono is tough.  You go into a pro bono case understanding that your legal fees will not be paid.  But it is rewarding.  In OAH, after the final disposition of the case, an attorney may petition for attorneys’ fees.  I hope my petition is granted…not because I want these legal fees so badly (honestly, my salary stays the same whether I get these attorneys’ fees or not), but because, if my attorneys’ fees are awarded in this case, maybe, just maybe, I would be able to take on more pro bono cases and help more Medicaid recipients directly.

Regardless, in my career, I go to bed knowing that I have helped good people, good providers and, indirectly, helped Medicaid recipients.


What Is the Legal Process for Contesting a Termination of a Medicaid Contract?

What is the legal process?
How long does it take?
How much does it cost?
What is the likelihood of success?
If I win, what will happen?

These are probably the most FAQ by providers who have either been placed on prepayment review or been through prepayment review, only to have their Medicaid contracts terminated at the end of six months.

First, what is prepayment review?

If you are an old hat to this blog, then skip this section. Most likely, you already know what the dreaded term “prepayment review” means. If you are a newbie, prepayment review is a status. A bad status. A status created by the Department of Health and Human Services (DHHS). In essence, prepayment review means that, for 6 months, you must have all claims evaluated by a third-party prior to being paid. You can render medically necessary services (for which you obtained prior authorization) and the third-party could decide that you do not deserve to be reimbursed. You can go 6 months without reimbursement, but provide services and pay your staff, then have your Medicaid contract terminated erroneously and because of the subjective and incorrect opinion of the third-party contractor.

However, this blog is about the legal process of fighting your Medicaid contract termination, not the absurdity of the prepayment review process.

The legal process:

You determine that (a) you are wrongfully withheld Medicaid reimbursements while on prepayment review; or (b) your Medicaid contract has been terminated based on an erroneous prepayment review.

1. You hire counsel. (It does not have to be me. Just a knowledgeable Medicaid attorney).

2. The attorney files a Motion to Stay, Temporary Restraining Order, and Preliminary Injunction (TRO) against DHHS, DMA. The third-party auditor that conducted the prepayment review does not need to be named because the auditor is considered to be an agent of the state. In fact, whenever I have filed a TRO, DMA automatically brings a witness from the third-party auditor. If DMA did not, DMA would not be able to dispute my contention that the prepayment review was conducted erroneously.

3. NC Civil Rule of Procedure, Rule 65 governs injunctions (A TRO is legally considered an injunction. The difference is between a court of equity and a court of law).

4. Usually within 7-10 days, (barring some unforeseen hurdle) the Administrative Law Judge (ALJ) will either grant or deny the TRO.

It is important to note that not all ALJ’s procedural postures for TROs are identical. One ALJ may grant the TRO with no legal arguments heard from opposing counsel and schedule the Preliminary Injunction hearing in the near future. Another ALJ may require telephonic legal arguments prior to granting the TRO. Yet another ALJ may require legal arguments in person at the Office of Administrative Hearings (OAH).

5. Once the TRO is granted, status quo governs. In other words, the TRO allows you to have your Medicaid contract, service Medicaid recipients, and get reimbursed…just as if the prepayment review had never happened.

6. A TRO is VERY temporary. For the most part, if executed strictly according to Rule 65, a TRO is granted without hearing from the other side. Therefore, a preliminary injunction hearing must be scheduled as soon as possible. The ALJ does not want to burden an unheard party’s rights for too long without hearing that unheard party’s side.

7. Within a month or so after the grant of the TRO, a preliminary injunction hearing is scheduled. (This is normally conducted in one, full-day hearing…sometimes shorter if you have one particular Judge, because he or she has such a clear understanding of the facts).

8. At the preliminary injunction hearing, you must show: (1) likelihood of success on the merits; and (2) irreparable harm. Which means, in the vernacular, (1) that the prepayment review was conducted incorrectly (or your Medicaid reimbursements are being wrongly withheld); and (2) if the termination of your Medicaid contract is not stopped, then you would suffer great consequences.

9. If the ALJ grants the preliminary injunction, then that grant of relief maintains status quo until the full-blown hearing.

10. The full-blown hearing will be held, generally, over 6 months in the future. Which means that you will be able to render medically necessary services for Medicaid recipients and be reimbursed for services rendered until the final adjudication of the lawsuit.

Basically, once the TRO is filed, you could be “back to normal” or status quo within 7-10 days.  That does not mean that the legal battle is over.  In fact, once the TRO is granted and you are back to normal, the legal battle just begins.  The legal battle can be a long, stressful and drawn-out process.  But, at least, you are able to render medically necessary services and receive reimbursement.

As to cost, the legal process is expensive.  Obviously, cost depends on the attorney that you hire, that hired attorney’s billable rate, and that hired attorney’s legal knowledge of Medicaid.  Be sure to ask many questions prior to engaging any attorney.  Anybody would hate to get an unexpectedly high bill.

Also, check with your liability insurance to determine whether your liability insurance will cover attorneys’ legal fees.  Many times your liability insurance will cover regulatory audits.

Also, NCGS 6-19.1 allows a party defending against an agency decision to petition the court for attorneys fees within 30 days of final disposition of the case.  Therefore, there is a possibility to have your attorneys’ fees reimbursed, but not until the very, very end of your case.  You would be responsible for fronting the attorneys’ fees with a chance of not recovering your attorneys’ fees at the back-end.

As to likelihood of success, obviously, it depends on your particular facts.  Was the third-party auditor really actually wrong in its audit denials? Does your documentation actually meet compliance requirements. Remember, just because the auditor believes that your documents are not compliant, does not mean your documents are actually noncompliant.  But likelihood of success rests primarily in your facts/documents.  Your attorney should be able to be more specific.

Number of Mental Health Patients Rise in ERs as Willing/Able Medicaid Behavioral Health Providers Dwindle

This is EXACTLY the issue that I have been blogging about for months.  The State of North Carolina, for whatever reason, has determined (whether intentional or not) to decrease the number of behavioral health care providers who accept Medicaid.  With the aggressive tools in the Division of Medical Assistance’s (DMA) work shed, such as outrageous Tentative Notices of Overpayments, capricious prepayment review audits, and arbitrary terminations of Medicaid contracts without affording due process, DMA has, in the last year or so, successfully bankrupt hundreds of Medicaid behavioral health providers. Or the providers simply washes their hands of Medicaid all together.

With the dramatic decrease in Medicaid mental health providers, where are all the Medicaid recipients going? One answer? The ERs.

People in the industry are also noticing.

My best friend is an ER nurse.  She told me recently that she noticed more and more patients coming in to the ER with mental illness the primary diagnosis.  I asked her whether she knew whether these patients with primary mental health diagnoses were Medicaid patients.  She answered (which I love), “I don’t know. I never look to see if a patient is a Medicaid recipient.  I treat them all the same.”  She is a good nurse. 

Anyway, I asked her to start paying attention (without ever providing me with specific information).  She returned a week or so later saying that, yes, the patients with mental illness as the primary diagnosis generally seem to be Medicaid recipients. (In fact the night before a man came in the ER sticking his tongue in and out rapidly and screaming, “Get me my lily pad!”  This is not a man who should be in the ER.  This man should be receiving mental health services).

Others in the industry have noticed this growing issue of Medicaid recipients with mental illness as the primary diagnosis going to the ER as well.  Dr. Judy Tintinalli, an ER physician noticed and researched the issue.  Here is her article:

NC Emergency Patients Twice as Likely to Have Mental Health Problems
June 17, 2013 by Rose Hoban

Research published by the Centers for Disease Control and Prevention compared rates of people reporting to North Carolina’s emergency departments complaining of mental health issues to EDs in the rest of the country.

By Rose Hoban

Many people think of emergency departments as mostly treating patients with traumas or heart attacks or an out-of-control infection.  But in 2010, Judy Tintinalli, an emergency department physician at UNC Hospitals, was getting the sense that she was seeing more and more patients coming into her emergency department with mental health problems.  She started asking around and found she wasn’t the only one with this impression.  “We’d all noticed that the number of mental health diagnoses in visits are just going up in EDs,” Tintinalli said. “And this has been going on for a while.” Source: Emergency Department Visits by Patients with Mental Health Disorders — North Carolina, 2008–2010, MMWR 62(23);469-472EmergencyDept_Box So she and her colleagues from several states started work on a study to look at rates of people coming in for care with mental health issues as one of their main complaints. Tintinalli’s intuition was on target. In a paper published last week, she writes that while rates of mental health issues in emergency departments are up all over the country, they’re especially high in North Carolina. Patients who came to emergency departments in the state between the beginning of 2008 and the end of 2010 were twice as likely to have a mental health complaint than in the rest of the country.

Good data

According to the Centers for Disease Control and Prevention, in 2009, about 5 percent of people coming into emergency rooms had a mental health disorder. But at that time, North Carolina’s rate was almost double, according to Tintinalli’s study. She used data that comes from almost every emergency department in the state, a system called the North Carolina Disease Event Tracking and Epidemiologic Collection Tool (NC DETECT). The system, begun as a way to catch bioterrorism or disease outbreaks before they get out of control, collects data about the diagnoses of every visitor to North Carolina’s emergency departments. NC DETECT captures more than four million emergency department visits per year. No personal data is collected, just geographic data and information about what happened during the visit. The system collects up to 10 possible diagnoses for each patient encounter. “And at the end of the patient encounter, you list the diagnoses the patient had,” Tintinalli said. “You prioritize based on how critical they are. “So, say you have someone come in with cancer, and they have pneumonia, and they’re also depressed; depression is the third diagnosis. If you come in saying you want to kill yourself, then the depression will be the first diagnosis.” By the end of 2010, 9.3 percent of all ED visits had a mental health problem as one of the top complaints.


NC DETECT draws data from many sources and provides surveillance data to NC public health as well as to CDC. Diagram courtesy North Carolina Preparedness and Emergency Response Research Center

And Tintinalli found that not only were people coming in for mental health disorders, but those people with a main complaint of mental health problems were more than twice as likely to be admitted to the hospital. No surprise. Clinical social worker Bebe Smith, who teaches at the UNC School of Social Work, said she wasn’t surprised to hear that North Carolina has had higher rates of emergency department usage among people with mental health issues. “North Carolina’s mental health system has been in constant flux for over a decade,” Smith said. “Sometimes people end up going to the ER when they’re truly suicidal and despairing and overwhelmed by stress. You know, if there are psychosocial stressors like losing a job, you don’t want to go on, you start drinking, get suicidal,” Smith said. She said it’s called being “in crisis,” and it looks slightly different for each patient. Tintinalli’s data showed that close to two-thirds of people coming in with mental health problems were complaining of stress, anxiety or depression.
“We let people go into crisis,” said Vicki Smith, head of Disability Rights North Carolina, who pointed to the lack of community-based services for people with mental health problems. “We are not providing people with mental health needs the services they need to keep them out of crisis,” she said. “We allow them to go into crisis and they end up in the ED, sometimes via police cars.”
“If numbers are going up, we need to look and ask if we have adequate resources to really deal with these problems statewide,” Tintinalli said. Vicki Smith said that’s exactly the problem.  “We can keep people out of EDs, and there are a lot of evidence-based practices to do that,” she said. “But we haven’t provided the resources.”

Severe and persistent

A lot of providers of care for people with severe and persistent mental illness, like schizophrenia or bipolar disorder, have gone out of business, Bebe Smith said. And when that happens, patients lose their continuity of care. “That’s something important for them,” she said, “and it’s something we’ve lost.” She also said that the state has shifted away from continuous provision of care for these people – who often are disabled enough to have Medicaid –into episodic care, as a way to save dollars. “So people might have been in treatment for a while, they do better and then we discharge them,” Bebe Smith said. She said many outpatient clinics have pushed providers into seeing more patients for shorter visits as a way of getting productivity – and revenues – up. Then if patients start to do poorly, they get lost. “So if someone misses the appointment, they don’t have time to check in on that person. But the people who are doing more poorly are the ones who need outreach,” Smith said. “The way they’ve pushed productivity levels on therapeutic workers – that’s another place where you lose the continuity that’s key in keeping people from crisis.” So, she said, many end up in the facility of last resort – emergency departments.

Can it be?! Is it true?! NC General Assembly Passing Law to Supervise the MCOs? And Giving Counties a Choice of MCOs?

Am I living in some alternate universe?

Surely, I have misread or misunderstood Session Law 2013-85!


I cannot believe my eyes.  Even more so, I cannot believe the General Assembly could possibly make a good law regarding the Managed Care Organizations (MCOs). 

To all lawmakers, I am truly sorry for my obvious and apparent cynicism.  But forgive me, the potential NCGS 108D statutes had not made me hopeful for the future of health care providers.

Session Law 2013-85 (SL 2013-85) was signed by Gov. McCrory  on June 12, 2013 (last Wednesday).  SL 2013-85 is entitled, “An Act to Ensure Effective Statewide Operation of the 1915 (b)/(c) Medicaid Waiver.”  Its status is “completed legislative action.”

SL 2013-85 requires:

1.  The Secretary to certify whether the MCOs are in compliance with certain requirements and must be made every 6 months.

Can we say…is it possible…dare we say….DMA must supervise the MCOs?

According to SL 2013-85, the Secretary’s certification evaluations will be every 6 months beginning August 1, 2013.  Not sure whether that means the first evaluation will be on August 1, 2013, or whether the 6 month period begins to run August 1, 2013, meaning the first evaluation would be January 1, 2013.

2. The Secretary’s evaluation will be based on an internal and external assessment made by an independent external review agency.

Hmmmm….this is starting to sound like an audit…an audit on the MCOs!!!! Can we hire CCME??? (they never find anything good).

So what requirements will the Secretary be determining are or are not in compliance?

I.  MCO has made adequate provision against the risk of insolvency. 

II.  The MCO is making timely provider payments. (Of course, the implementation of this clause, I wager, will be to pay only providers the MCOs determine worthy).

III. The MCO is exchanging billing, payment, and transaction info to the Department.

Ok, so the Secretary will be, or, at least, making an effort to ensure compliance of the MCOs.  That’s better than no supervision, right? And the Session Law shows the intent of lawmakers to begin supervision of MCOs.

Going to county choice of MCOs…

According to SL 2013-85, a county that wishes to disengage with a particular MCO may realign with another MCO with permission by the Secretary.

Counties get to choose MCOs?????????

Right now, the MCOs are jurisdictional and regional.  Here is a map of the MCOs currently.


As you can see, across North Carolina each MCO is basically assigned a catchment area.  So, as a health care provider, if you provide mental health services to Medicaid recipients in Pitt County, you must contract with East Carolina Behavioral Health (ECBH) because Pitt county is in the yellow ECBH area.

BUT…..In a system in which counties could choose which MCOs with whom to contract, I wager, that system would create new MCOs….ones that were more “county/health care provider friendly” (i.e., authorizes medically necessary services, does not terminate provider Medicaid contracts without merit, etc.).  Let me explain:

For example:

(People, this is a hypothetical) ECBH, in Pitt County, determines, for whatever reason, that personal care service hours (PCS) cannot exceed 40 hours/week without exceptions (even if a Medicaid recipient requires 24-hour care).  In my hypothetical, in Pitt county, many, many Medicaid recipients get denials from ECBH to receive PCS in excess of 40 hours.  All these recipients complain to the providers.  The providers are losing money because services are not getting authorized.  The providers feel as if their clients are getting a disservice because a medically necessary service is not being provided to the Medicaid recipients.  The providers complain to the county commissioner and other local politicians.  Eventually, Pitt county gets sick of it and determines that Pitt county no longer wants to work with ECBH.  Pitt County requests and receives authorization from Secretary Aldona Wos to realign with MCO Smokey Mountain Center (SMC) (in the west). Unlike, ECBH, SMC is absolutely willing to authorize PCS service in excess of 40 hours/week upon a showing of medical necessity.

So what happens?

ECBH loses a county.  I would guess that if an MCO loses a county that the MCO would receive less Medicaid funding, which would mean potential less profit for the MCO.

SMC gains a county.  I would guess that SMC would receive more Medicaid money with an additional county.


The MCOs, all of a sudden, have a monetary incentive to make the counties happy in their own catchment areas.  Because if too many providers complain and the county switches MCOs, then the MCOs’ potential profit decreases.

Suddenly, customer service becomes, if not important, a factor in the MCOs’ minds. (Minds of the board members).

Suddenly MCOs do not have a monopoly on its catchment area.  If choice of MCOs exist for the counties, then counties have more persuasion with the MCOs.

Why is this so important?

Let me give a very simplistic hypothetical:

I live in Wake County.  Because I live in Wake county and, in my hypothetical, Wake county has a contract with Harris Teeter as the Wake county grocery store, and only Harris Teeter.  In my hypothetical, I am only allowed to get my food at Harris Teeter.  HT knows that it has Wake county’s business no matter what. To increase profits, HT begins to put 4 lbs of potatoes in bags, but sells the bags for 5 lb. prices.  Or, instead of throwing away rotten produce, keeping it for sale and requiring the customers to buy the rotten produce first, in order to get the fresh produce.  The customers complain, but HT merely laughs, saying, “We don’t care, Wake county, you can’t choose to go to Kroger anyway.” 

BUT …What if?   What if….Wake county DOES have the authority to determine that Wake county no longer wants to buy from HT, and, instead, can make a contract with Kroger.  Kroger has the incentive to keep prices fair and produce fresh, because Kroger knows that if Kroger does the same practices that HT did, that Wake county will go to Piggly Wiggly.  (Don’t you just love a Piggly Wiggly?)

This is the heart of an argument for competition in the market…capitalism, if you will.

The thought is, generally, that if the MCOs have to compete for business, the MCOs have incentive to provide good services to keep the client-county.

“Capitalism is like a child: if you want the child to grow up free and productive, somebody’s got to look over the shoulder of that child.”  Tavis Smiley.

If, by chance, I have misread SL 2013-85 or, by chance, I am in some alternate universe, and SL 2013-85 is not real, then I just had a great idea. I’m kidding.  I gives kudos to the General Assembly on this one. 

Let’s just hope that it is implemented fairly.

Lessons From Early Medicaid Expansions Under The Affordable Care Act

Another shared article.  Very interesting!! Look specifically at Issue #4.

Lessons From Early Medicaid Expansions Under The Affordable Care Act

June 14th, 2013

by Benjamin Sommers, Emily Arntson, Genevieve Kenney, and Arnold Epstein Benjamin Sommers, Emily Arntson, Genevieve Kenney, and Arnold Epstein

The Affordable Care Act (ACA) will dramatically expand Medicaid in a number of states starting in January 2014. In this month’s issue of Health Affairs, new research from DeLeire and colleagues on Wisconsin’s 2009 BadgerCare expansion and from Price and Eibner on predicted cost and coverage impacts of the Medicaid expansion provides insights on the implications of state decision-making about whether to expand the program.

Since 2010, six states have already expanded Medicaid to cover some or all of the low-income adults targeted for coverage under health reform. To provide additional information on the impacts of such expansions, we undertook an in-depth exploration of the experiences of these states – California, Connecticut, the District of Columbia, Minnesota, New Jersey, and Washington – through qualitative interviews with 11 high-ranking Medicaid officials across all six states. In analyzing these interviews, we identified several key policy lessons that help elucidate the opportunities and challenges of expanding Medicaid under the ACA. Below are some of our preliminary findings.

Lesson #1: All the early ACA Medicaid expansions occurred in states with pre-existing state or local insurance programs for low-income adults.

The changes in Medicaid eligibility in these six states (including Washington, DC) all built upon pre-existing state- or locally-funded health insurance programs for the poor. In all cases, state officials described the early expansion as, in part, a way to capitalize on the availability of federal funding to subsidize coverage states had already been paying for with state or local funds. Despite the fact that these expansions built on pre-existing programs, four states — California, Connecticut, the District of Columbia, and Minnesota — expanded insurance to a significant number of new individuals who had not previously received public coverage, and in general, Medicaid provided a more generous set of benefits than the pre-existing programs.

Many states will face similar circumstances in 2014: according to the Kaiser Family Foundation, as of 2012, 14 other states provided insurance to low-income adults that fell short of comprehensive Medicaid coverage, and 6 provided Medicaid to some adults below 133 percent of the poverty level. Thus, like the six early-expander states, many others in 2014 will also be building upon previous state expansions as well as extending coverage to new enrollees.

Lesson #2: Expansion-related predictions are challenging.

Another theme with particular relevance for the 2014 expansion was that enrollment and cost estimates proved challenging, often diverging significantly from the actual outcome. While some states did quite well in their projections, several states underestimated costs and/or enrollment significantly. In one state, nearly twice as many new Medicaid beneficiaries enrolled compared to projections. The resulting budget pressure in the state led legislators to consider cutting back the expansion. Another state reported underestimating capitation rates to managed care plans, requiring a significant adjustment after the first year.

Looking ahead to 2014, these experiences should be a note of caution regarding the uncertainties associated with projecting enrollment and costs associated with Medicaid expansions. How will the predictions for 2014 compare to these early expanders’ experiences? On the one hand, the Medicaid expansions in these states built upon pre-existing programs, suggesting that their ability to make accurate projections should have been greater than will be the case for many states under the ACA. However, it is also possible that these more narrowly-targeted expansions received less attention and/or resources for making accurate projections than the broad-based expansion that will be implemented under the ACA in 2014.

Lesson #3: Barriers to coverage and access remain after expanding eligibility.

While state Medicaid officials agreed that access to care had improved for both new Medicaid enrollees and for those transferred from less generous pre-existing programs, they also reported that many barriers to care remained. First, several early expander states had difficulties enrolling very low-income adults and keeping them enrolled, in part because some of these adults experience transient housing and other unstable social circumstances. Several officials said that culturally and linguistically competent outreach conducted through community-based providers was an important means of overcoming these challenges.

Even after enrollment, some beneficiaries reportedly encountered challenges in obtaining care. Care coordination in fee-for-service Medicaid was an area of concern, and several officials also lamented the shortage of providers in rural areas — though they pointed out that this is neither a new problem nor one caused by the Medicaid expansion. While access barriers may be ameliorated by the Affordable Care Act’s increase in primary care payment rates in Medicaid for 2013-2014, the state Medicaid officials we interviewed were fairly skeptical that the temporary pay increase would significantly increase provider participation in Medicaid.

Lesson #4: Behavioral health is a critical need for this population.

Most of the officials we interviewed commented that the expansion population had a greater-than-expected use of behavioral health services, including substance abuse treatment. We identified two primary implications of this: First, it offers the possibility of major improvement in care for a population that has traditionally had difficulty obtaining needed services. Second, states will likely need to improve the availability and quality of mental health services, which requires both additional provider capacity and better care coordination for patients with complex behavioral health needs.

However, it is important to take these comments in context. Several officials noted that this trend of unexpectedly high behavioral health needs is unlikely to be as pronounced in the 2014 expansion to 133 percent of the federal poverty level, because the early expansions targeted much lower-income individuals, who have higher rates of substance abuse and severe mental illness than adults with incomes closer to or above the poverty level. Moreover, it is possible that Medicaid take-up was lower under these early expansions without the added benefit of the individual mandate and public relations efforts that will occur in 2014, and therefore the early expansions disproportionately drew in individuals who were in poor health.

Lesson #5: While the early expansions required significant administrative effort, these states — like all states — still face major implementation challenges for 2014.

Despite their experiences over the past two years, most Medicaid officials in early expansion states felt that they were still not fully prepared for the administrative challenges of the 2014 expansion. Nonetheless, there were some lessons to be learned from the bumps in the road they experienced during the implementation. Administrative challenges in the early expansion included the need to hire more staff (which was not always possible, given budget constraints), the sometimes arduous transfer of beneficiaries from pre-existing programs to Medicaid, and the high volume of new applications. One state official reported that the lack of sufficient staff capacity to handle new applications contributed to a lawsuit. Another state had to print out and manually transfer beneficiary information from the state’s pre-existing insurance eligibility system to Medicaid.

Most officials voiced the opinion that two primary challenges for 2014 are similar in states with or without early expansions: coordinating with the new insurance exchanges and converting their eligibility systems to the Modified Adjusted Gross Income standard required by the ACA.

Lesson #6: The so-called ‘Woodwork Effect’ was not apparent in these early expansions, but it would be premature to rule it out even in states that choose not to expand in 2014.

Most state officials said they had not seen evidence that their early eligibility expansions had resulted in significant increases in enrollment among previously-eligible groups. Nevertheless, most officials predicted that the ACA’s individual mandate, media coverage, streamlined application process, and availability of Exchange subsidies will bring previously-eligible but uninsured people into the program. In this often-voiced view, eligibility expansions are not the issue driving the woodwork effect. Instead, it is these other factors that will occur in 2014 regardless of whether a state chooses to expand Medicaid to 133 percent of the federal poverty level, meaning that all states should plan for increased Medicaid enrollment in 2014 whether or not they participate in the expansion.

Lesson #7: Political context matters a great deal in implementing a Medicaid expansion.

Officials described the support for Medicaid expansion among key stakeholders as nearly universal, though the intensity of support varied. Hospitals, consumer advocates, and community health centers were most vocal and “extremely supportive” of the goals of expanding coverage and bringing federal dollars into the states to do so. Doctors, insurers, and the business community were described as more “lukewarm” but still in favor. More generally, these states all have governors — five Democrats, one Republican — who have declared their support for the 2014 Medicaid expansion, and have what one Medicaid director called a very “pro-coverage” culture.

This culture in government, among stakeholders, and public opinion can, as one official described, grease the wheels and enable programs to more easily overcome implementation challenges along the way. Actively incorporating stakeholders at each step during the implementation process and keeping them apprised of impending changes or new challenges can be critical to maintaining support over time.


The experiences of the six “early expander” states under the Affordable Care Act provide a range of potentially valuable lessons for policymakers to consider as the 2014 Medicaid expansion approaches. Though these six states are distinct in many ways from other states, aspects of the lessons that emerged from interviews with these officials have potential implications for other state policymakers, whether or not they choose to expand Medicaid in 2014, and whether or not they have pre-existing state or local coverage programs.

Overall, the lessons of the six early expansion states show the promise of significant gains in coverage and access to care for populations in need, but also offer cautionary notes on the administrative challenges, significant cost and enrollment uncertainty, and remaining barriers to care that policymakers will need to take on over the coming years of immense change in the Medicaid program.

Provider Shortage for Medicaid Recipients

By Roberta Capp, Published: June 13

Roberta Capp is a Robert Wood Johnson clinical scholar fellow at Yale University, where she practices emergency medicine and is researching health care delivery for patients with Medicaid and Medicare insurance.

The debate over “Obamacare” has focused largely on the number of uninsured Americans and how the regulations will be implemented. Not enough attention is being paid to the difficulties our health-care system imposes on those with Medicaid insurance, which is being extended to millions who lack coverage.

Frequently, people blame patients for using emergency departments “inappropriately.” But some Medicaid patients do everything they can to see a doctor, to no avail, and must resort to emergency department visits. My own experience has been instructive.

One Monday a few months ago, the waiting room of the emergency department (ED) where I work had 30 patients, some of whom had waited 12 hours to be seen. My first patient was a woman with chest pain. She has Medicaid insurance. Her medical problems include diabetes, previous heart attacks, asthma and acid reflux. I ordered an electrocardiogram and saw from her file that she had been evaluated in the ED for chest pain 14 times in the past year and hospitalized on seven of those occasions. After reading her previous diagnostic tests and treatments, I was confident that her chest pain was not caused by a heart or lung problem. I was also curious about how her care was being coordinated.

The first time this woman had chest pain, she said, she called our hospital’s primary-care clinic, where she had seen a different doctor at each previous appointment. After holding for more than 30 minutes, she hung up and went to the emergency department. That visit resulted in a hospital admission for a heart stress test, the results of which were normal. But this woman continued to experience pain. She later saw a doctor at our primary-care clinic who prescribed an acid-reflux medication and told her to return to the ED if she had more pain.

This woman prefers to see a ­primary-care doctor, she told me, which is why she would call the clinic when she had pain. But often she was either unable to get an appointment right away or couldn’t get a person on the phone. When she did reach someone, once she said “chest pain,” she was almost always told to call 911 immediately and go to the ED.

The patient’s records showed that in the past year she had had two cardiac stress tests, one coronary catheterization procedure and two CT scans of her chest, all of which were normal. Simply put, she received the best care possible — and doctors assessing her were reassured that she did not have heart disease or a clot in her lungs. But she also underwent duplicate testing, which increased her costs without providing additional benefits, exposed her to more radiation and raised the potential for false-positive test results.

When this patient was able to get an appointment quickly, she then had to arrange transportation. Medicaid will pay for taxi service, she told me, but she has to call at least three days ahead to schedule the ride. Ultimately, she told me, she has concluded that “the only way to see a doctor soon enough is to call an ambulance” and go to the ED.

She cried as she told me her story. A primary-care doctor had recommended that she see a gastroenterologist for her chest pain, as it might be coming from her stomach, but the next available appointment was two months later. She hoped to see one in the emergency department, she told me, because she could no longer deal with her pain.

In our hospital, about one in 10 patients with Medicaid is a frequent visitor to the emergency department because many physicians don’t accept that insurance. Trying to understand the inability of patients with insurance to see primary-care providers, I called three local clinics, pretending to be a patient with Medicaid, and tried to make an appointment. The soonest I could see a primary-care doctor was two months. Primary-care physicians who accept Medicaid insurance are overwhelmed with patients, many of whom have social challenges in addition to health issues. Some are their family’s sole caretaker; many are dealing with housing or transportation issues or food insecurity. These complexities often go unaddressed by health-care providers.

The experience of many such Medicaid patients who struggle to see primary-care doctors inspired me to partner this spring with Project Access New Haven, a nonprofit in Connecticut that provides services to frequent ED users who have Medicaid. Patients work with a “navigator” dedicated to helping them maneuver through our complex health system. The patient and navigator work as a team to figure out transportation and housing problems, get food vouchers, make immediate appointments with primary-care doctors or address other issues that can improve patients’ health.

If all states implement the Affordable Care Act, 18 million more people will be enrolled in Medicaid by the end of 2016. Even if some states opt out, the program is poised for a huge expansion. But having insurance does not guarantee access to health care. Policymakers need to explore and reduce the barriers Medicaid patients face as millions join an already overburdened system.

The Exaggeration of the Tentative Notices of Overpayment

Over the past few days, with all the rain that we have been getting, I have noticed that ants are invading my house.  FYI: I am fine with bugs…just not in my house.  Each morning I wake up and I see an ant, I (a) complain to my ever-patient husband; and (b) fantasize about bulldozing the house.  Obviously, I would never bulldoze the house.  This is merely an exaggerated, reactive thought.  A better idea, rather than bulldoze the home, would be to get an exterminator, thus killing only the yucky ants, not squashing the whole home.

Exaggeration is a representation of something in an excessive manner.

So to, are the Tentative Notices of Overpayment (TNOs) that Medicaid providers are receiving from the Recovery Audit Contractors (RACs) exaggerations.  The TNOs are a representation of something in an excessive manner.

For example, Public Consulting Group (PCG) conducts an audit of 100 claims from 30 Medicaid clients.  The entire amount billed by the provider for those 100 claims is (I’m making up numbers) $10,000.  Then PCG sends a letter to the provider stating that the provider owes $760,000.

$760,000? From $10,000? How does $10,000 turn into $760,000? It’s called exaggeration…oh, I mean…extrapolation.

To show you how exaggerated the RAC audit figures are, I decided to show you a Decision written by a Department of Health and Human Services (DHHS) Hearing Officer.  Mind you, generally, I disagree with 99% of the decisions from DHHS. But, a broken clock is right twice a day, right?

I had a client that PCG determined owed $702,611.00.

After showing the records to the DHHS Hearing Officer, DHHS decided:

PCG Decision

I know, the font is too little.

Here it is blown up:

photo (3)


There is something patently wrong with an audit process if the auditor tells the auditee that the auditee owes $760,000 and the principle (DHHS) does not even agree with the agent (PCG) and does not reduce the amount by 10%…or 20%….or, even 50%.  Oh no, (mind you, I am no mathematician) reduces the amount by 99.975%.

But PCG, like me, would rather bulldoze the house…

REGISTER TODAY: NC Medicaid Lawsuit: Telephone Conference Friday

Join the June 14 Teleconference on NC Medicaid Audit Multi-Party Lawsuit to Recoup Monetary Damages


Thank you so much for coming to the presentations on May 11 in Durham and June 1 in Charlotte. We had a great turnout at both and most attendees have confirmed they plan to join in the multi-party lawsuit against the state. To view a copy of the original presentation, please click here.

On Friday, June 14, 2013 from 12 noon to 1:00 p.m., we will hold a teleconference call for health care providers interested in joining the suit and learning more about the next step. To sign up for the teleconference, please click the Register Now link and enter your information. Once we receive your registration, we will email you the dial-in information directly.

To date, we have approximately 30-40 interested health care providers, so we are close to our goal of at least 40! We will continue to add interested providers to this case up to 30 days after our teleconference. Therefore, you have from June 14 to July 14 to register and join in. Registration for the multi-party lawsuit will close July 14.

We look forward to moving forward with this lawsuit to seek monetary damages for all the providers. Thank you and please contact me directly if you have any questions!

Knicole Emanuel