Our Medicaid Budget Does More Than Allocate Money; It Places the Burden of Proof on Medicaid Providers!!!

Are you a health care provider in NC? Are you wonderful enough to help Medicaid patients but accept low Medicaid reimbursements? Are you dedicated to helping our most needy? Well, guess what???? YOU now have the burden of proof if you disagree with an adverse determination by the State.

That’s right. The newly-enacted state budget quietly changes the statutes and shifts the burden of proof from the Department to YOU. I am reminded of my Grandpa Carson. Whenever he couldn’t believe what he just heard, he would bellow, “Wooooo weee.” Growing up in the south, we have certain sayings, such as “Bless your heart,” “Y’all come back now, ya hear?” and “That food is so good I could slap my momma.” My Grandpa Carson, God rest his soul, was as southern as southern can get. If he were here and heard about the burden shift onto the providers, he would say, “Wooo weeeee.”

Last week while I was on my first week-long vacation in 2 years, the North Carolina state budget, known as Session Law 2014-100, was signed into law by Governor McCrory.  (Which is why I missed a week of blogging…my vacation, not McCrory’s signature).  Since I was at my family reunion started by my Grandpa, I am dedicating this blog to my grandpa, Nat Carson, who created a family tradition that has lasted for over 40 years. Our (huge) extended family vacation together once a year at Emerald Isle for a family reunion. FOUR generations attend!

Going back to the budget…

An “adverse determination” in this case includes decisions by North Carolina’s Department of Health and Human Services (DHHS) under the Medicaid program such as the Department’s termination of a contract with the provider, a Managed Care Organization’s (MCO) termination of a provider contract, or the Department or one its many vendors determines that the providers owes an overpayment back to the state.

Not only does the state budget shift the burden of proof onto providers when they contest an adverse determination by the State, which we will discuss more below, but it also takes a lot of DHHS decision-making power away. It is apparent that the General Assembly does NOT think DHHS can do its job of managing Medicaid and creating Medicaid reform competently. The General Assembly (GA) has decided that, for whatever reason, it will be more hands-on regarding Medicaid decisions in the future.

Here are a few examples of the GA’s hands-on attitude found in the Session Law 2014-100 (with some emphasis I have made by putting some words in bold-faced type)

  • “Until the General Assembly enacts legislation authorizing a plan to reform Medicaid, the Department of Health and Human Services (i) shall continue to consult with stakeholder groups, study, and recommend options for Medicaid reform that will provide greater budget predictability for the Medicaid program and (ii) shall not commit the State to any particular course on Medicaid reform and shall not submit any reform-related State plan amendments, waivers, or grant applications nor enter into any contracts related to implementing Medicaid reform.”
  • “The Department may submit drafts of the waiver to the Centers for Medicare and Medicaid Services (CMS) to solicit feedback but shall not submit the waiver for CMS approval until authorized by the General Assembly.”
  • “The Department of Health and Human Services shall make payments to the contractor hired by the Joint Legislative Oversight Committee on Health and Human Services from funds appropriated elsewhere in this budget for this contract…”
  • “The Department of Health and Human Services shall not make any other modifications to the portion of the Medicaid State Plan referenced in this section, except as provided herein.”
  • “The Department may submit drafts of the waivers to the Centers for Medicare and Medicaid Services (CMS) to solicit feedback but shall not submit the waivers for CMS approval until authorized by the General Assembly.
  • “[T]he Division of Medical Assistance shall ensure that any Medicaid-related or NC Health Choice-related State contract entered into after the effective date of this section contains a clause that allows the Department or the Division to terminate the contract without cause upon 30 days’ notice.”
  • “No fewer than 10 days prior to submitting an amendment to the State Plan to the federal government, the Department shall post the amendment on its Web site and notify the members of the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division that the amendment has been posted.”

Basically, the GA has estopped DHHS from reforming Medicaid without the consent of the General Assembly.

Then, stuck in the middle of the state budget is the amendment to N.C. Gen. Stat. 108C…. “Woooo weeee!”

MODIFY MEDICAID APPEALS SECTION 12H.27.

(a) G.S. 108C-12(d) reads as rewritten: “(d) Burden of Proof. – The Department petitioner shall have the burden of proof in appeals of Medicaid providers or applicants concerning an adverse determination.”

Does anyone else understand what this teeny, tiny clause within Session Law 2014-100 means????

What is the importance of burden of proof? Enormous! And this clause changes the playing field for Medicaid providers. It may not have been a level field prior to Session Law 2014-100, but now it’s even more slanted.

The easiest way to explain “burden of proof” is that when a petitioning Medicaid provider challenges some adverse determination by DHHS, for example, the Department’s termination of a contract with the provider, the “burden of proof” decides which party must persuade the reviewing tribunal that the party’s assertions are correct. Up until this amendment of G.S.108C-12(d), the Department has had the burden to present evidence showing that its adverse determination was correct. The petitioner could then respond to that evidence, to try to show the contrary, but the burden of proving the correctness of the adverse determination still rested on the Department in cases filed by Medicaid providers under Chapter 108C.

In court, one of the first questions a judge will ask is, “Who carries the burden of proof?” Because the legal burden of proof is just that…a burden…that must be satisfactorily carried in order to win.

Health care providers who accept Medicaid have notoriously been given the short-end of the stick, i.e., low reimbursement rates, undergoing burdensome audits, but, at least, in NC, historically, the Department has had to prove the correctness of its allegations, whether it be an alleged overpayment, a termination of a Medicaid contract, or other allegations.

But now? DHHS’ allegations against a health care provider are true…unless the provider can prove DHHS wrong. The uphill fight of a provider seeking to correct a DHHS adverse determination, just became much steeper, and it was done with little or no fanfare.

“Woooooooo weeeeeee!”

So can you do? Only options as far as I see it:

  1. Call and email your state representatives.
  2. Hire a lobbyist.
  3. Bring a lawsuit to change it.
  4. Do nothing.

Per L. Warren’s comment, I am adding #5.

5. Stop taking Medicaid clients.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on August 12, 2014, in Accountable Care Organizations, Administrative Law Judge, Administrative Remedies, Aldona Wos, Appeal Rights, Budget, Burden of Proof, CMS, DHHS, Division of Medical Assistance, General Assembly, Gov. Pat McCrory, Health Care Providers and Services, Joint Legislative Oversight Committee on Health and Human Services, Lawsuit, Legal Remedies for Medicaid Providers, Legislation, McCrory, MCO, Medicaid, Medicaid Appeals, Medicaid Attorney, Medicaid Budget, Medicaid Contracts, Medicaid Providers, Medicaid Reform, NC, North Carolina, Senate Bill 744, Session Law 2014-100, State Budget, State Plan, State Plan Amendments, Tax Dollars, Taxes, Termination of Medicaid Contract, Wos and tagged , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 4 Comments.

  1. After 20 years of being a Medicaid provider, I am choosing option #5. I will no longer be serving Medicaid clients.

    • While that truly saddens me, I completely understand. I believe more and more health care providers will opt for #5 as well. And to the detriment of Medicaid recipients. Why can’t people understand that we NEED health care providers who accept Medicaid?

      • I feel really sad about it, as well. Working with Medicaid clients has been my heart and my calling, but as I have always told my clients, “You teach people how to treat you”, and it is time for me to do the same with “the powers that be”.

  2. My children’s speech therapist is concerned about getting a medicaid audit, which could put her out of business, so now we have to find another provider. Plus all the concerns of going to MCOs or ACOs many small private medicaid practices are closing or opting out of seeing medicaid patients. It is a distressing time for health providers in our state right now.

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