NCTracks, Monetary Damages, and Kudzu

So many providers in North Carolina who accept Medicaid have contacted me asking whether they have a legal case to bring a lawsuit against Computer Sciences Corporation (CSC), the company who created and is running NCTracks, for monetary damages.

In order to determine whether grounds for a lawsuit exist, you need to determine, generally: (a) Did CSC have a duty to timely pay Medicaid reimbursements to you; (b) Did CSC breach that duty; (c) Did you suffer monetary damages?

42 C.F.R. 447.45 states, in pertinent part, (a) Basis and purpose. This section implements section 1902(a)(37) of the Act by specifying—(1) State plan requirements for—(i) Timely processing of claims for payment…”

What does “timely” mean?

  • The agency must pay 90 percent of all clean claims from practitioners, who are in individual or group practice or who practice in shared health facilities, within 30 days of the date of receipt.
  • The agency must pay 99 percent of all clean claims from practitioners, who are in individual or group practice or who practice in shared health facilities, within 90 days of the date of receipt.

90%….within 30 days.  Let’s see…last payments were June 20, 2013.  It is July 26, 2013.  No payments have been rendered to many providers in 36 days, and, according to one provider, he was told that he will receive reimbursement for at least another 2 weeks.

Hmmmmm….I do not think NCTracks is adhering to the 30 day rule.  That said, if I were the attorney for NCTracks, I would argue that the providers not receiving payments within 30 days were not submitting “clean claims,” to which I, as myself, would say, “Prove it.”

I don’t think the Department of Health and Human Services (DHHS) is intentionally not paying providers Medicaid reimbursements for services rendered.  I don’t think that DHHS meant for NCTracks to not pay some providers.

Regardless of intent, it is correct to say that DHHS went “live” with NCTracks without a “live” trial run and without conducting proper tests necessary prior to going “live.”

According to the May 2013 State Auditors’ Performance Audit of NC DHHS’ Implementation of NCTracks:

The Department has failed to fully test the system, and the production testing process has flaws.

• Key decisions about the addition of 1,500 user accounts and privacy and security procedures have yet to be made, increasing uncertainty about project readiness.

• A vendor hired to oversee the project did not conduct independent verifications as expected by the federal agency that administers Medicaid, and another vendor was permitted to set its own guidelines for whether its work was acceptable.

• No formal criteria exists to determine whether the new system is ready to go-live.

Why DHHS pushed NCTracks to go “live” on July 1, 2013, despite obvious concerns cited by the State Auditor, we may never know.  It reminds me, somewhat, of kudzu and the fact that humans like to think that everything is controllable.

Kudzu is not native to America. Kudzu was originally introduced to America from Japan at the Japanese pavilion in the 1876 Centennial Exposition in Philadelphia. Kudzu was touted as a high-protein content cattle fodder and as a cover plant to prevent soil erosion. So people planted kudzu, thinking that kudzu would be an asset to our environment. Instead, kudzu had drastic negative effects on our environment. Kudzu is often dubbed “The Vine That Ate the South.” It has spreads at the rate of 150,000 acres (61,000 ha) annually.

The problem with kudzu is that kudzu kills or damages other plants by smothering them under a blanket of leaves, encompassing tree trunks, breaking branches, or even uprooting entire trees.  Kudzu’s ability to grow quickly, survive, and acquire resources quickly allows it to out-compete native species.

So, think about it, we wanted kudzu because we thought kudzu would be a good thing.  We did not research kudzu’s growth rate or kudzu’s interactions with American foliage.  We did not perform test sites of kudzu to analyze the effects of kudzu on our environment. We didn’t even grow kudzu in a controlled environment to determine whether kudzu’s rate of growth would negatively impact our plants.  Oh no, we saw kudzu, and, like a kid in a candy store, we said, “Oooohhhh….we want kudzu!”  So we planted kudzu.  We thought we could control kudzu.

 I don’t think the Japanese, who introduced kudzu, nor the Americans, who accepted the kudzu,  intentionally planted kudzu in order to kill plants and trees.  I don’t think that the people who planted the kudzu meant for kudzu to have drastic negative consequences to our environment.

Regardless of intent, people who planted kudzu did so without fully testing kudzu’s impact on our environment.

In reality, kudzu is estimated to have lost us approximately $100–500 million per year in forest productivity…as in what we could have made by trees actually growing.  In addition, it takes about $5,000 per hectare (2.5 acres) per year to control kudzu.  For power companies, it costs about $1.5 million per year to repair damage to power lines.  See Forseth. Jr., I.N. and Innis, Anne F.“Kudzu (‘‘Pueraria montana’’): History, Physiology, and Ecology Combine to Make a Major Ecosystem Threat” Critical Reviews in Plant Sciences, Vol. 23, 401-413, 2004.

Similarly, DHHS (regardless which administration) saw a new computer system, NCTracks, and like the kid in the candy store, said, “Ooooohhhh…we want NCTracks!”  So we purchased NCTracks.  We thought we could control NCTracks.

We certainly did not perform all necessary tests on NCTracks before going “live.”

Now, due to the failure to fully test NCTracks and the “glitches” surrounding NCTracks, NCTracks, like kudzu, is producing drastic negative effects on our health care providers. Some providers are losing hundreds of thousands of dollars per week due to NCTracks.  One provider told me that he already closed one location and terminated 6 staff due to NCTracks.

NCTracks is not, at least for many, many health care providers, timely paying Medicaid reimbursements.

But what are the monetary damages? What if you file a lawsuit against CSC and the day after you file a lawsuit you are paid in full? Do you still have any damages?

It depends.

I got an email from a pediatric physician; we will call her Amy.  For the past few weeks, Amy has been unable to sleep. She has not been paid since June 20, 2013.  Unlike most providers, she does not limit the number of Medicaid recipients at her practice, and Medicaid is 85% of her income. 

Amy spent her one-week-long vacation on-hold with NCTracks 70% of the time.  She is behind on work.  She has decreased her clinical hours.  Amy was forced to ask her parents for a loan to make payroll, and still has not paid all her staff completely. 

Last week, Amy and her husband did not have enough money for groceries until her husband was paid on Friday.

Yesterday, when Amy contacted NCTracks, she was told that, according to NCTracks’ records, Amy was paid. But no money is in Amy’s bank account.

Even if Amy were paid tomorrow by NCTracks, don’t you think that Amy suffered additional damages?

Maybe we should just plant a bunch of kudzu around NCTracks and CSC.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on July 26, 2013, in Beth Wood, Computer Sciences Corporation, DHHS, Division of Medical Assistance, Health Care Providers and Services, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Medicaid, Medicaid Billing, Medicaid Reimbursement, Medicaid Reimbursements, Monetary Damages, NCTrack Glitches, NCTracks, NCTracks Billing Issues, North Carolina, Office of State Auditor, Timely Payments and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink. 6 Comments.

  1. My wife has a small practice foe Speech/Language therapy. I have done her billing since 1994 with no problems. We are unable to bill through NCtracks because….well I don’t know why. She was a CEP (currently enrolled provider) but for some reason the program doesn’t recognize her as being a “registered provider” even though when I try to re register an error code says she is already registered. Multiple phone calls to CSC with an average wait time of over 1 and a half hours have been no help. They say they have created tickets and once said the ticket would be “walked up to the war room”. We have not been able to bill since mid June. Have already been to the bank for a loan once and looks like we’re headed back. Anticipating that they were intending to fix the problem I entered all client data and billing information on draft claims. This morning we get a notice that all draft claim information has been deleted from the system. Again many hours of work down the tubes. Please help if possible.

    Tony Hamrick

    • Tony,

      We have heard the same thing since last week about our issues being escalated up to the “War Room”. We still have not gotten any answers or payments since the end of June. If you call back all they will tell you is that the “War Room” is working on it. I am still amazed that there is not more of an outrage in the news about the complete failure of this system, and the majority of Medicaid providers not getting paid in over a month.

  2. I encourage everyone to contact their local state lawmaker and tell them what is going on! They are out of session and in their home districts now, tell them that their voters, businesses, and taxpayers are suffering under this. Pressure applied from them only helps remedy issues in a quicker fashion. We are getting paid pennies on the dollar due to a Unit/hour conversion error from HP to CSC they have has over 2 weeks to fix it and it still have not. Let’s hold their feet to the fire!

  3. Article that stated in could be 60 to 90 days before there are any improvement to the system according to State officials. Wow.

    http://www.carolinacoastonline.com/news_times/news/article_4065f014-f6fc-11e2-8295-0019bb2963f4.html

  4. Great Job Knicole on the news tonight in Charlotte! The only problem with the DHHS argument that it’s the providers fault for not providing the correct information originally to CSC ( Taxonomy number, etc.. ) was that I printed out my application before NC Tracks went live that showed my information was correct on my original paperwork. I also printed out information from my bank that showed when DHHS sent 4 different Zero dollar credits on my banking account that showed that they had my correct EFT information back in March when they ran their test. Plus, I highly doubt that the majority of Medicaid providers in NC filled out their paperwork wrong. Could it be like the state auditor stated that the system was not ready to go live?? We have be keeping a log of every conservation that we have had with CSC/ NC Tracks going to back to early July. You should read the some of the answers that we have been receiving from their untrained staff. We still have not received any payments since the end of June.

    Link to Video:

    http://www.wsoctv.com/news/news/medical-providers-considering-lawsuits-over-issues/nY9Kc/

  1. Pingback: The Nine Habits of a Highly Effective Secretary for DHHS | medicaidlaw-nc

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