Monthly Archives: March 2014
Congressman McDermott Calls on Sec. Sebelius to Fix the Medicare Appeal Purgatory
Throughout my career I have seen more people confuse Medicare and Medicaid than any other two items in my line of work. If I am about to give a presentation on Medicaid, without question, someone will comment, “Oh, that’s important! We will all be on Medicaid someday.” Hmmmm? Really? (I hope not).
It’s confusing. I get it. They sound the same and both are heavily regulated with esoteric rules and regulations.
For the record, MediCARE covers those who qualify for Medicare and are 65 years of age or older. MediCAID serves low-income parents, children, seniors, and people with disabilities.
By providers, I am asked frequently, “What is the difference between a Medicaid audit appeal and a Medicare audit appeal?”
The easy “Audit 101” answer is that Medicaid audit appeals are quicker (although in the legal world, nothing is truly fast) than Medicare audits and that the Medicaid administrative appeal process is easier (or has fewer steps) than the Medicare appeal process.
In Medicaid you have an informal appeal, an appeal to the Office of Administrative Hearings (OAH), and, if you are so inclined, judicial review to the Superior Courts. Obviously you can appeal the judicial review, but most appeals stop at the OAH level.
So, with Medicaid audit appeals, you have 2 levels…maybe 3.
In Medicare audits appeals, there are 5 levels. You have more of a Dante-ish order of events.
In the “Divine Comedy,” Dante writes of three levels of afterlife: (1) Inferno (2) Purgatorio; and (3) Paradiso.
If Dante stopped at those 3 levels, the “Divine Comedy” would be more similar to Medicaid audit appeals, not Medicare audit appeals. But Dante does not stop at 3 levels.
Purgatory, which is the place that the human soul must purge its sins and climb up to be worthy of Heaven, is divided into three sections: (1) Antepurgatory; (2) Purgatory proper; and (3) the Earthly Paradise. (I am giving the Cliff’s Notes version for the purpose of this blog. Obviously, there were other mountains symbolizing the 7 deadly sins and other layers, but I will leave that for English class).
In recent times, Purgatory has come to mean a state of suffering or torment that is meant to be temporary.
Regardless, the “Divine Comedy” and its multi-layers to achieve Paradiso is more akin to the Medicare appeal audit process.
Here are the levels in a Medicare audit appeal process:
1. Redetermination
2. Reconsideration
(Purgatory)
3. Hearing before an Administrative Law Judge (ALJ)
4. Review by the Appeals Council
5. Judicial Review
Nowadays many providers undergoing Medicare audits are getting stuck waiting for #3 to occur. Purgatory.
So long is the hold up before step #3 that Congressman Jim McDermott, 7th District, Washington, wrote a letter to Secretary Kathleen Sebelius expressing concerns.
In a letter dated March 18, 2014, Congressman McDermott writes that he is concerned with the backlog of appeals pending in the Office of Medicare Hearings and Appeals (OMHA).
According to Congressman McDermott, 357,000 Medicare appeals are pending at OMHA. If OMHA decided to set a one-year deadline to hear the pending actions and not counting new actions that would be filed, OMHA would have to preside over 1,027.4 hearings a day, including weekends and holidays.
For as long as I know, OMHA has expedited Medicare recipients appeals. However, while Congressman McDermott commends OMHA for the expeditions, he states that the expeditions are not fast enough, even for Medicare recipients.
Congressman McDermott makes several suggestions as to how to decrease the current workload on OMHA.
First, he asks that the “two midnights policy” not be implemented. Instead, he suggests to revamp the recovery audit contractor (RAC) program. Congressman McDermott states that too many issues are still not resolved for the Policy to be implemented and that the implementation will only add to OMHA’s workload.
Second, Congressman McDermott suggests more accountability for the RACs. He states that there is no associated penalty if a RAC collects money from a provider and the decision is overturned on appeal.
To this suggestion, I say, “Bravo, Congressman McDermott!” My suggestion is that the RACs to pay the provider’s attorneys’ fees if overturned on appeal. It seems only fair that the provider not have to pay legal fees if the provider shows that the RAC was incorrect in its assessment.
Thirdly, Congressman McDermott suggests to ensure the newly instated pause on document requests corrects the problems. CMS has recognized inherent problems with the RAC program and has issued a pause of document requests. Well, Congressman McDermott says make sure you fix the problem before lifting the pause. Logical.
Without question, the backlog at OMHA needs to be addressed. Some Medicare providers have complained of not having their cases heard for years. Imagine waiting to be heard in front of a judge for years….not knowing…
It is hard enough for providers to go through a Medicare audit. Much less appeal and then…………………………………………….wait in Purgatory.
The NC MCOs: Jurisdiction Issues and Possible Unenforceable Contract Clauses with Medicaid Providers
According to NC Superior Court, OAH (and I) has (have) been right all along…OAH does have jurisdiction over the MCOs. And you cannot contract away protections allowable by statute.
Before I went to law school, I do not recall ever thinking about the word “jurisdiction.” Maybe in an episode of Law and Order I would hear the word thrown around, but I certainly was not well-versed in its meaning. While I was in law school, the word “jurisdiction” cropped up incessantly.
“Jurisdiction” is extremely important to North Carolina Medicaid providers. Jurisdiction, in the most basic terms, means in which court to bring the lawsuit or appeal of an adverse determination.
In this blog, I am mostly referring to terminations/refusals to contract with providers by the managed care organizations (MCOs), which manage behavioral health, developmental disability, and substance abuse services for North Carolina. Recently, there have been a slew of providers terminated or told that they would not receive a renewed contract to provide Medicaid services. The MCOs tell the providers that, per contract, the providers have no rights to continued participation in the Medicaid system.
The MCOs also tell the providers that the providers cannot appeal at OAH… That the providers have no recourse… That the providers’ contracts are terminable at will (at the MCO’s will)…. I have been arguing all along that this is simply not true. And now a Superior Court decision sides with me.
The MCO have been arguing in every case that OAH does not have jurisdiction over the actions of the MCOs. The MCOs have pointed to NC Gen. Stat. 108D and Session Law 2013-397, which amends NC Gen. Stat. 150B-23 to read:
“Solely and only for the purposes of contested cases commenced as Medicaid managed care enrollee appeals under Chapter 108D of the General Statutes, a LME/MCO is considered an agency as defined in G.S. 150B-2(1a). The LME/MCO shall not be considered an agency for any other purpose.”
A termination or denial to participate in the Medicaid program is an adverse determination. Adverse determination is defined in NC Gen. Stat. 108C-2 as, “A final decision by the Department to deny, terminate, suspend, reduce, or recoup a Medicaid payment or to deny, terminate, or suspend a provider’s or applicant’s participation in the Medical Assistance Program.”
The Department is defined as, “The North Carolina Department of Health and Human Services, its legally authorized agents, contractors, or vendors who acting within the scope of their authorized activities, assess, authorize, manage, review, audit, monitor, or provide services pursuant to Title XIX or XXI of the Social Security Act, the North Carolina State Plan of Medical Assistance, the North Carolina State Plan of the Health Insurance Program for Children, or any waivers of the federal Medicaid Act granted by the United States Department of Health and Human Services.”
Obviously, per statute, any entity that is acting on behalf of DHHS would be considered the “Department.” Any adverse act by any entity acting on behalf of DHHS, including terminating a provider’s participation in the Medical Assistance Program is considered an adverse determination.
The MCOs have been arguing that the above-referenced amendment to 150B means that the MCOs are not agents of the state; therefore, OAH has no jurisdiction over them.
Until March 7, 2014, these issues have been argued within OAH and no Superior Court judge had ruled on the issue. Most of the Administrative Law Judges (ALJ), even without Superior Court’s guidance, has, in my opinion, correctly concluded that OAH does have jurisdiction over the MCOs. A couple of the ALJs vacillate, but without clear guidance, it is to be expected.
On or about March 7, 2014, the Honorable Donald W. Stephens, Senior Resident Superior Court Judge ruled that OAH does have jurisdiction over the MCOs. Yelverton’s Enrichment Services, Inc. v. PBH, as legally authorized contractor of and agent for NC Department of Health and Human Services (DHHS).
If these MCOs are acting on DHHS’ behalf in managing the behavioral health Medicaid services, it would be illogical for OAH to NOT have jurisdiction over the MCOs.
In the Yelverton Order, Judge Stephens writes, “OAH did not err or exceed its statutory authority in determining that it had jurisdiction over Yelverton’s contested case.”
The Order also states that the MCO, in this case, PBH (now Cardinal Innovations), agreed that only DHHS had the authority to terminate provider enrollment. The MCO argued that, while only DHHS can terminate provider enrollment, the MCOs do have the authority “to terminate the participation of the provider in the Medical Assistance Program.”
Talk about splitting hairs! DHHS can terminate the enrollment, but the MCO can terminate the participation? If you cannot participate, what is the point of your enrollment?
Judge Stephens did not buy the MCO’s argument.
On March 7, 2014, Judge Stephens upheld ALJ Donald Overby’s Decision that OAH has jurisdiction over the MCOs for terminating provider contracts.
I anticipate that the MCOs will argue in future cases that the Yelverton case was filed prior to Session Law 2013-397, so Yelverton does not apply to post-Session Law 2013-397 fillings. However, I find this argument also without merit. The Yelverton Order expressly contemplates NC Gen. Stat. 108D and House Bill 320.
House Bill 320 was the bill contemplated by the General Assembly in the last legislative session that expressly stated that OAH does not have jurisdiction over the MCOs. It did not pass.
In Yelverton, the MCO argued that the MCO contracts with the providers allow the MCO to terminate without cause and without providing a reason.
Judge Stephens notes that the General Assembly did not pass House Bill 320. The Yelverton Order further states that no matter what the contracts between the providers and the MCOs states, “[c]ontract provisions cannot override or negate the protections provided under North Carolina law, specifically appeal rights set forth in NC Gen. Stat. 108C.”
Will the MCO appeal? That is the million dollar question…
The NC State Plan, Its Importance, and How Can We Keep Up With All the Changes??
I am constantly amazed at the amount of knowledge that I do not know. And how quickly the knowledge I have becomes obsolete due to changes. To quote Lewis Carroll’s “Alice and Wonderland,” “Why, sometimes I’ve believed as many as six impossible things before breakfast.” My other favorite quote series from Lewis Carroll is the following scene:
“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here. I’m mad. You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, or you wouldn’t have come here.”
So too, must I be mad, I think, at times, for dealing with Medicaid and Medicare law. The statutes and regulations are vast and ever-changing. You can easily miss a policy change that was disseminated by an update posted on the web. But, I am a lawyer…I read a lot. But providers are held accountable as well for every revision and every update.
Just when you think you understand the State Plan, the Department of Health and Human Service (DHHS) asks the Center for Medicare and Medicaid Services (CMS) for an amendment.
In this blog, I am going to discuss 2 issues. (1) What is the State Plan and why is it important; and (2) how can providers stay abreast of the ever-changing Medicare/caid world and policies.
(1) Our State Plan
What is our State Plan in Medicaid? Is it law? Guidance? Does NC have to follow the State Plan? Can NC amend the State Plan?
These are all good questions.
The State Plan is a contract between North Carolina and the federal government describing how NC will administer its State Plan, i.e., Medicaid program. The State Plan describes who can be covered by Medicaid, what services are available, and, basically, assures the federal government that we will abide by certain rules and regulations. NC must follow the State Plan or risk losing federal funding for Medicaid, which would be BAD.
Quite often, the Department of Health and Human Services (DHHS) will issue a State Plan Amendment (SPA) to the Centers for Medicare and Medicaid Services (CMS). DHHS has to post all proposed amendments on its website “10 Day Posting for Submission to CMS.” This internet site should be in your “favorites,” and you should check it regularly.
For example, February 27th, DHHS asked to reduce Medicaid reimbursements methodologies for Chiropractic Services, Podiatry Services and Optometry Services to 97% of the July 1, 2013, rate, effective January 1, 2014 (yes, retroactively).
Just in 2014, there have been approximately 10 SPA requests. So, these SPAs are relatively common.
So, question #2…how can you keep up?
(2) Keeping abreast of all changes
As much as I would love to throw my computer out the window (I am on the 16th floor) and watch it crash, computers and technology can be very helpful. And technology makes it easy for everyone, even busy health care providers, to stay current on changes, amendments, and revisions to Medicaid/care policies and law.
Here is the secret: (shhhhhhhhh!!)
Google Alerts.
If you want to keep current on NCTracks, all you have to do is set a Google alert with the search term “NCTracks,” and you will receive daily email alerts on all internet articles on NCTracks. It is that easy.
So how do you set up a Google Alert? I have drafted a set by step process, otherwise entitled “Google Alerts for Dummies.”
1. Go to Google.
2. At the top of the page you will see the words: “You,” “Search,” “Images,” “Maps,” “Play,” “Youtube,” “News,” “Gmail,” and “More.” Click on “More.”
3. When the box drops, at the very bottom, you will see “even more.” Click on “even more.”
4. Scroll down to specialized search and click on “Alerts.”
5. Type in whatever search term you like, such as “Medicaid,” or “Knicole Emanuel.”
6. Decide how often you want to be alerted and your email address.
You will now be alerted about your topic. See? Easy!!
Now, because of this blog, you have learned two or more impossible things before lunch.
DHHS Presents Medicaid Reform Plan to the General Assembly
Press ReleaseDHHS Presents Medicaid Reform Plan to the General Assembly
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Raleigh, N.C. – The North Carolina Department of Health and Human Services (DHHS) today presented its Medicaid reform plan to the General Assembly. This realistic and achievable plan puts patients first, improves whole person care, ensures a more predictable Medicaid budget, and builds on what already works for North Carolina.
“We have an obligation – an obligation we have willingly accepted as a state – to help those in need. And we must, at the same time, be good stewards of taxpayer resources,” said DHHS Secretary Aldona Z. Wos, M.D. “We believe this Medicaid reform plan is responsive to both those obligations.” The plan proposes that providers collaborate through accountable care organizations (ACOs), a model that allows physicians and other providers who care for patients to take control of improving quality and healthy outcomes. “When ACOs share in the savings or losses based on quality measures, everyone has a vested interest in making Medicaid a success,” said Secretary Wos. “We expect the ACO model to bend the cost curve by approximately 2-3 percent, which would mean hundreds of millions of dollars in savings for the state.” The reform plan is based on input received during nearly 15 months of discussions with stakeholders throughout the state, including beneficiaries, caregivers, providers, health care organizations and the work of the Medicaid Reform Advisory Group. “The reform proposal being submitted today to the General Assembly is a good and thoughtful plan,” said Dennis Barry, advisory group chair and CEO emeritus of Cone Health. “Importantly, it builds on the existing strengths of the current care systems operating in North Carolina.” DHHS is taking a dual approach to Medicaid reform as efforts also are under way to improve the Division of Medical Assistance (DMA) operations to support Medicaid reform. Secretary Wos recently named Deputy Secretary of Health Services and Acting State Health Director Robin Gary Cummings, M.D., to lead the DMA transformation. He is overseeing efforts to improve existing operating processes to increase forecasting accuracy and deliver Medicaid services more efficiently and effectively. Since its inception in 1970, the N.C. Medicaid program has evolved into an essential component of the state’s health care system. It currently serves about 1.8 million low-income parents, children, seniors and people with disabilities and requires $13.5 billion a year to operate. Medicaid Advisory Group members include Dennis Barry of Greensboro, chair, CEO emeritus of Cone Health; Peggy Terhune, Ph.D., of Randolph County, executive director and CEO of Monarch; Richard Gilbert, M.D., of Mecklenburg County, former chief of staff for Carolinas Medical Center; state Rep. Nelson Dollar of Wake County and state Sen. Louis Pate, who represents Lenoir, Pitt and Wayne counties. For a copy of the Medicaid reform plan, click here. |
How the ACA Has Redefined the Threshold for “Credible Allegation of Fraud” and Does It Violate Due Process?
I believe that everyone would agree with me that The Affordable Care Act (ACA) has done more to impact health care legally…probably since 1966 when Medicare was established. Whether you think the impact is beneficial or negative, it does not matter. The impact exists nonetheless.
One of the changes the ACA has yielded is the threshold for suspending Medicare and Medicaid payments to providers based on credible allegations of fraud is lower.
While CMS regulations authorized the suspension of Medicare and Medicaid payments prior to the enactment of the ACA, § 6402(h) lowers the standard the government must meet in order to suspend payments based upon suspected fraud.
The lower standard for a state to suspend Medicaid and Medicare payments nip…nay, I say…bite at the fabric of due process.
First, what is a “credible allegation of fraud?”
Credible allegation of fraud means an allegation from any source, such as data mining, whistleblowers, and/or fraud hotline complaints. Quite literally, you could be accused of having credible allegations of fraud because an ex, disgruntled employee calls the fraud hotline.
The definition of “credible” is equally as scary. If there is “indicia of reliability,” it is credible. I have no idea what “indicia” means, but it does not sound like much. So if there is indicia of reliability when your ex, disgruntled employee calls the fraud hotline, there may be credible allegations of fraud against you.
When you have credible allegations of fraud against you, your Medicaid/Medicare payments are suspended. Without an opportunity to rebut the allegations. Without you even knowing from where the allegation came.
I make the analogy (albeit, admittedly, a poor one) of my law license. Or an M.D.’s license. Or a teacher’s license. We do not have a right to a law license. But, I argue, once you go through the process and pass the necessary tests and are awarded a law license (or M.D. license or teacher’s license), you have a protected property right in continuing in the profession.
There is a good cause exception and you should try to assert the exceptions, but this blog concentrates on the suspension and the due process (or lack thereof) involved.
CMS states that providers have “ample opportunity to submit information to us in the established rebuttal statement process to demonstrate their case for why a suspension is unjust.”
However, think of this…in Medicare, notice to the provider is not required prior to the suspension. So, I ask you, how can you plead the suspension is unjust when you have no notice? Obviously, only after the suspension has been put into place. Due process violation?
In Medicaid, the agency must notify the provider of the suspension within 5 days of taking the action. Although it can be extended to 90-days upon request of a law enforcement agency.
Even though the Medicare suspension statutes do not require notice, the Medicare statutes are a bit more provider-friendly when it comes to the length of time during which you may be suspended. For Medicare providers, the suspension can last a period of 180 days. However, the 180 days can be extended.
Conversely, for Medicaid providers, there is no scheduled period of suspension.
In my cursory review of case law, I found one case in which the Medicaid provider had suffered suspension of Medicaid reimbursements for over 4 years. Obviously, the company had closed and staff had been terminated. You cannot maintain a business without revenue.
So, is the suspension of Medicare and Medicaid payments upon a credible allegation of fraud a violation of due process?
Due process.
Do not even get me started on the importance of due process. In fact, I have blogged about the importance of due process before in this blog. “NC Medicaid and Constitutional Due Process.”
Due process is generally described as notice and an opportunity to be heard. But due process does not apply to everything. For example, you do not have due process rights to your drivers’ license. Certain infractions will cause you to lose your drivers’ license without due process. That is because driving is a privilege, not a right. You do not have a right to drive. Instead due process attaches when a liberty or a property right is deprived.
Rights include:
The right to vote (for some…not felons)
Freedom of religion
Freedom of speech
Obviously, in certain circumstances, those rights can be restricted (shouting fire in a crowded movie theatre, for example). But, generally, you have due process to the deprivation of any of your rights.
For purposes of this blog, we are concentrating on whether due process attaches to the deprivation of Medicare and Medicaid reimbursements. If someone takes away your Medicaid and/or Medicare reimbursements, are you entitled to due process…or notice and an opportunity to be heard?
Some courts have held that “health care providers have a constitutionally protected property interest in continued participation in the Medicare and Medicaid programs.”
Obviously, in the jurisdictions in which this view is followed, without question, you have a right to due process upon suspension of Medicaid and/or Medicare reimbursements.
However, the view that Medicaid and Medicare participation is a constitutionally protected right is not the majority view. Or, I should say, this particular issue has not arisen in all jurisdictions. Some jurisdictions have not even considered whether the participation in Medicaid and Medicare is a protected property interest.
To be completely clear, there is no protected property interest in procuring a Medicaid or Medicare contract. Only once you receive the contract does your interest in the contract become protected (in those certain jurisdictions).
North Carolina, for example, has not contemplated this issue (at least, not since after 10 NCAC 22F.0605 was enacted).
Interestingly enough, 10A N.C. A. C. 22F.0605 states “[a]ll provider contracts with the North Carolina State Medicaid Agency are terminable at will. Nothing in these Regulations creates in the provider a property right or liberty right in continued participation in the Medicaid program.”
So, one would think that, in NC, there is no protected property interest in continued participation in the Medicaid program.
However, in the Office of Administrative Hearings (OAH), this very issue was contemplated in a few contested case hearings and the Administrative Law Judges (ALJ) have decided that there is a protected property interest in the continued participation of the Medicaid program, despite 10A N.C. A. C. 22F.0605. The decisions are based on federal and state law.
“North Carolina statutes and rules provide procedural due process. Federal Medicaid regulations are replete with provisions that require that notice be given to the provider of the suspension or termination of Medicaid payment for services.”
“The Supreme Court has ruled that property rights can be created by administrative regulations and that the “sufficiency of the claim of entitlement must be decided by reference to state law.”‘ (Internal cite omitted). Bowens v. N.C. Dept. of Human Res., 710 F.2d 1015, 1017 (4th Cir. 1983). Our state statutes and rules have the procedural and substantive safeguards, indicating that the provider’s participation is not terminable at will.” (This opinion was written after 10A N.C. A. C. 22F.0605 was enacted).
While these OAH decisions have not undergone judicial review, at least, in OAH, providers may have a protected property interest in the continuation of participation in the Medicaid program. And analogous argument would exist for Medicare providers.
Who knows? Maybe NC will follow the view that providers have a protected property interest in continuing participation in Medicaid…
Just imagine if the government could snatch away law licenses…or M.D.’s licenses…or teachers’ licenses…without any due process. We would live in fear of losing our livelihoods.
NC Medicaid: To Revise or Not to Revise, That Is the Question!
We think too much; thus we fail to act. That’s what Hamlet was saying during his “To be or not to be” soliloquy, right? To live or not to live? Should you bear the painful burden of life or to refuse the burden by killing yourself?
Or does the fear of the unknown (death) make us bear our painful lives? (Although Shakespeare was much more eloquent).
Medicaid providers, how many times have you reviewed your own documentation only to find accidental scrivener’s errors? The service note failed to denote the correct date of service (DOS)…the Physician’s Authorization and Certification for Treatment (PACT) form cited an incorrect Medicaid number…or the CPT code on a service incorrectly indicated an individual treatment when the service was clearly a group treatment. (People, we are NOT talking about forgery or altering dates of a physician’s signature…these things would be considered FRAUD. We are merely talking about scrivener’s or clerical errors).
To revise or not to revise…that is the question!
And what an important question it is. Because, so easily, innocent documentation corrections could transmute into documentation fraud. Medicaid fraud. Criminal investigations. Bad!
A recent Office of Administrative Hearings (OAH) decision gives us some guidance on when to revise or when not to revise.
St. Mary’s Home Care Services, Inc. v. NC Division of Medical Assistance (DMA) Finance Management Section Audit Unit NC DHHS was signed January 8, 2014, by Administrative Law Judge Beecher Gray, who was recently appointed as a Special Superior Court Judge. Believe me, we will miss Judge Gray at OAH. His Order in St. Mary’s Home Care was his parting good-bye.
In St. Mary’s Home Care, the Department was seeking a recoupment of $4,334,056.09. One of the reasons for the recoupment was that the Department contended that St. Mary’s had violated “best practices” in the way it had amended PACT forms and service notes.
A witness for the Department testified that “best practices” required St. Mary’s to either create a new document or to strike through the corrected portion, enter the correction, sign the name of the individual making the correction, and append an explanation for the correction to the document.
Judge Gray disagrees.
“The Agency’s misunderstanding of the policy and use of unpublished “best practices” as a justification for its decision is erroneous, in violation of rule and law, exceeds the Agency’s authority, and is arbitrary and capricious.”
“The Agency failed to meet its burden of proving St. Mary’s violated clinical coverage policy when it made changes or corrections to PACT form plans of care.”
So when should you NOT revise?
Obviously, do not commit fraud. But, according to St. Mary’s Home Care, slight revisions to PACT forms and service notes will not be enough to warrant an overpayment.
“Go, bid the soldiers shoot.”
HHS Announces More Time for Noncompliant Plans, Other ACA Policies
BNA’s Health Care Policy Report:
Posted March 5, 2014
The Obama administration March 5 said consumers can keep their health plans that don’t comply with the Affordable Care Act for two more years, as part of a release of new ACA rules and policies.
The Department of Health and Human Services noted that in fall 2013, the administration extended through 2014 noncompliant health plans in the small group and individual health insurance markets, for insurers that received permission from their state to do so. Now, the department is extending its “transitional policy for two years,” to policy years beginning on or before Oct. 1, 2016.
“This gives consumers in the individual and small group markets the choice of staying in their plan or joining a new Marketplace plan as the new system is fully implemented,” the HHS said.
The HHS also issued a comprehensive ACA insurance markets rule (CMS-9954-F) called the Notice of Benefit and Payment Parameters for 2015. The regulation includes provisions on premium stabilization; open enrollment for 2015; annual limitations on cost sharing; consumer protections; financial oversight; and the Small Business Health Options Program, or SHOP.
For the temporary “risk corridors program,” which helps stabilize premiums when enrollees are much sicker or much healthier than expected, the HHS said it intends to operate the program in a budget-neutral manner, with payments coming in equaling the amount of money going out, “while helping to ensure that prices remain affordable in 2015 and beyond.”
The Treasury Department and the Internal Revenue Service also released final rules (TD 9661) March 5 to implement the information reporting provisions for insurers and certain employers under the ACA that take effect in 2015. Treasury said the final rules on information reporting by employers “will substantially streamline reporting requirements for employers, particularly those that offer highly affordable coverage to full-time employees.” Treasury also released final rules (TD 9660) to provide guidance for reporting by insurers and other parties that provide health coverage under the ACA.
An HHS bulletin on the plan extension is at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/transition-to-compliant-policies-03-06-2015.pdf. The HHS and Treasury rules are posted at the public inspection website: http://www.federalregister.gov/public-inspection.
The Doctrine of Exhaustion of Administrative Remedies and Medicare/caid Providers
What is the doctrine of exhaustion of administrative remedies? And why is it important?
If you are a Medicaid or Medicare provider (which, most likely, you are if you are reading this blog), then knowing your administrative remedies is vital. Specifically, you need to know your administrative remedies if you receive an “adverse determination” by the “Department.” I have placed “adverse determination” and the “Department” in quotation marks because these are defined terms in the North Carolina statutes and federal regulations.
What are administrative remedies? If you have been damaged by a decision by a state agency then you have rights to recoup for the damages.
However, just like in the game of Chess, there are rules…procedures to follow…you cannot bring your castle out until the pawn in front of it has moved.
Similarly, you cannot jump to NC Supreme Court without beginning at the lowest court.
What is an adverse determination?
In Medicaid, NCGS 108C-2 defines “Adverse determination” as “a final decision by the Department to deny, terminate, suspend, reduce, or recoup a Medicaid payment or to deny, terminate, or suspend a provider’s or applicant’s participation in the Medical Assistance Program.”
In Medicare, sometimes the phrase “final adverse action” applies. But, basically an adverse determination in Medicaid and Medicare is a decision by [whatever entity] that adversely affects you, your Medicare/caid contract or reimbursements.
What is the definition of the Department?
NCGS 108C-2 defines the “Department,” as “The North Carolina Department of Health and Human Services, its legally authorized agents, contractors, or vendors who acting within the scope of their authorized activities, assess, authorize, manage, review, audit, monitor, or provide services pursuant to Title XIX or XXI of the Social Security Act, the North Carolina State Plan of Medical Assistance, the North Carolina State Plan of the Health Insurance Program for Children, or any waivers of the federal Medicaid Act granted by the United States Department of Health and Human Services.”
On the federal level, the Department would be the Centers for Medicare and Medicaid (CMS) and its agents, contractors and/or vendors.
So, an adverse decision is any final decision by DHHS….OR any of its vendors (Public Consulting Group (PCG), Carolinas Center for Medical Excellence (CCME), HMS, Computer Sciences Corporation (CSC), or any of the 10 managed care organizations (MCOs) (Alliance, Centerpointe, Smokey Mountain Center, Sandhills, East Carolina Behavioral Health, MeckLink, Cardinal Innovations, Eastpointe, CoastalCare, and Partners).
For example, PCG tells a dentist that he/she owes $500,000 in overpayments to the State. The notice of overpayment is an adverse determination by the Department as defined in the general statutes.
For example, Smokey Mountain Center (SMC) tells a provider that it will no longer contract with the provider as of March 15, 2014. SMC’s decision to not contract with the provider is an adverse determination by the Department as defined in the general statutes.
For example, CCME tells you that you are subject to prepayment review under NCGS 108C-7, which results in DHHS withholding Medicaid reimbursements. The notice of suspension of payments is an adverse determination by the Department, as defined in the general statutes (not the fact that you were placed on prepayment review because the placement on prepayment review is not appealable, but the determination that Medicaid reimbursements will be withheld).
The doctrine of exhaustion of administrative remedies is, in essence, a party must satisfy five conditions before turning to the courts: “(1) the person must be aggrieved; (2) there must be a contested case; (3) there must be a final agency decision; (4) administrative remedies must be exhausted; and (5) no other adequate procedure for judicial review can be provided by another statute.” Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992) (citing Dyer v. Bradshaw, 54 N.C. App. 136, 138, 282 S.E.2d 548, 550 (1981)
Move your pawn before moving your castle.
Typically, if a party has not exhausted its administrative remedies, the party cannot bring a claim before the courts. However, NC courts have recognized two exceptions that I will explain in a moment.
If you bring a lawsuit based on the adverse determination by the Department, do you go to state Superior Court? No.
In North Carolina, we are lucky to have the Office of Administrative Hearings (OAH). OAH is fantastic because the judges at OAH, Administrative Law Judges (ALJs) have immense Medicaid experience. OAH is a court of limited jurisdiction, meaning that only if a NC statute allows OAH to hear the case is OAH allowed to hear the case. One facet of OAH’s jurisdiction is adverse determinations by DHHS, its agents, vendors or independent contractors. Not all states have an administrative court system, and we are lucky to have an accomplished administrative court system. Our ALJs are well-versed in Medicaid, so, most likely, your issue you bring to OAH will be one already heard by the court.
Another great thing about OAH, is that OAH publishes some opinions. So you can review some published opinions prior to your hearing. For the most part, the ALJs are quite consistent in rulings. For the published opinions of OAH, click here. And, BTW, if you want to review only cases involving the Department of Health and Human Services, scroll down to the cases with the acronym: DHR. As you can see, OAH listens to cases involving many different state agencies.
So, let’s review:
If you receive an adverse determination by any state or federal agency, its contractors, vendors and/or independent contractors, you have the right to appeal the adverse determination. However, you MAY need to exhaust your administrative remedies prior to bringing the action in OAH. In other words, if the agency’s contractor, vendor, and/or independent contractor notifies you of an adverse determination, check with the contractor, vendor and/or independent contractor for informal appeals.
There are, however, some small exceptions. (Remember the knights can jump over your pawns. So can the Queen).
Number 1: Inadequacy.
If the informal administrative appeal process would be inadequate for your remedies then you are not required to exhaust the administrative remedies prior to going to the courts.
A remedy is inadequate “unless it is ‘calculated to give relief more or less commensurate with the claim.’” Huang v. N.C. State Univ., 107 N.C. App. 710, 713, 421 S.E.2d 812, 814 (1992) (citing Dyer v. Bradshaw, 54 N.C. App. 136, 138, 282 S.E.2d 548, 550 (1981).
An example of inadequacy would be if you are seeking monetary damages and the agency is powerless to grant such relief.
The phrase “monetary damages” means that you are seeking money. The agency owes you money and you are seeking the money. Or if you were caused monetary damages because of the agencies actions. For example, your Medicaid reimbursements were suspended. As a result, you fired staff and closed your doors. You would want to sue for the money you lost as a result of the reimbursement suspension. If the agency cannot give money damages or is powerless to give such money damages, then informal agency appeals would be in adequate to address you needs.
Number 2: Futility.
Futility refers to situations where an agency “has deliberately placed an impediment in the path of a party” or where agency policies “are so entrenched that it is unlikely that parties will obtain a fair hearing.”
For example, if by appealing informally within the administrative agency, you will not receive a fair hearing because no independent decision maker exists, you can make the argument that the informal appeal process would be futile.
Here’s the “small print:”
If you claim futility and/or inadequacy, then you must include the futility and/or inadequacy allegations in the Complaint; AND you bear the burden of proving futility and/or inadequacy.
If, however, you exhaust your adminastrative remedies, go to OAH.
Checkmate!
