Monthly Archives: October 2014

NCTracks developer CSC faces health care fraud lawsuit in NY

Jason DeBruyn of the Triangle Business Journal wrote:

Jason DeBruyn

Computer Sciences Corporation, the company that designed, developed and is operating the Medicaid claims payment system in North Carolina, is facing a health care fraud lawsuit brought by the U.S. attorney’s office in New York.

That lawsuit has no immediate impact in North Carolina, though Computer Sciences Corp. (CSC) built the system in this state – called NCTracks – using 32 percent of the code used in New York City. Initially, CSC had hoped to duplicate as much as 73 percent of the New York City code in North Carolina.
NCTracks has been the target of several attacks from health care providers who say they have not been paid on time. The N.C. Department of Health and Human Services, where NCTracks is housed, faces a lawsuit that could incorporate 70,000 health care providers and end up with damages exceeding $100 million. NCTracks has been the target of at least three searing audits.

The New York lawsuit, brought by Preet Bharara, the U.S. Attorney for the Southern District of New York, alleges billing fraud schemes that used computer programs to automatically alter billing data, including the use of a defaulting program to systematically falsify diagnosis codes submitted to Medicaid.
“As alleged, CSC and the City created computer programs that systematically, and fraudulently, altered billing data in order to get paid by Medicaid as quickly as possible and as much as possible,” Bharara said through a statement. “Billing frauds like those alleged undermine the integrity of public healthcare programs like Medicaid.”

Although this lawsuit makes no mention of activity in North Carolina, Knicole Emanuel, an attorney with Williams Mullen in Raleigh who represents providers in the lawsuit against DHHS, says it “will almost certainly cause the federal government to peer a bit closer at all CSC’s billing software systems in other states (including North Carolina).”

Representatives from DHHS did not immediately comment on the New York lawsuit.

CSC Sued in NY: Accused of Multi-Million Dollar Healthcare Fraud Scheme!!

Remember the NCTracks lawsuit?  NCTracks Derailed: Class Action Lawsuit Filed!!  Computer Sciences Corporation (CSC) is one of the Defendants in that action here in NC.

Well, Monday CSC was hit with another enormous lawsuit.  This one is filed in New York, and the Plaintiff is the U.S. Federal Government.

The feds are accusing CSC of a multi-million dollar Medicaid fraud scheme through its Medicaid billing software CSC implemented in NY.

Here is the press release.

From the complaint: “[T]hese fraud schemes were far from isolated events; instead, they were part and parcel of a general practice at CSC and the City to blatantly disregard their obligations to comply with Medicaid billing requirements.” (Compl. par. 8.)

The feds are seeking treble damages, which permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff.

According to the lawsuit, CSC has received millions of taxpayer dollars (budgeted for Medicaid) unlawfully and in direct violation of federal billing requirements.

If I were a taxpayer in NY, I would be incensed!!!! If I were a Medicaid recipient of parent of a child receiving Medicaid services, I would be furious!!

Now, take a step back…who is administering our Medicaid billing system here in NC?

Answer: CSC

This will almost certainly cause the federal government to peer a bit closer at all CSC’s billing software systems in other states…

Williams Mullen Hosts Its First Annual Healthcare Panel Discussion: Summary Below

I am currently sitting in a hotel in New Mexico.  I testified this morning before the New Mexico Behavioral Health Care Subcommittee regarding due process for health care providers upon “credible allegations of fraud.”

This past Sunday I ran and finished my very first half marathon.  And, yes, I am sore.  I signed up for the Bull City 1/2 marathon in Durham because it was being held in October and I thought the temperature would be cool.  But I failed to contemplate Durham’s hills…ouch!

Despite my jet lag and sore muscles, I wanted to blog about the health care panel discussion this past Thursday night hosted by Williams Mullen. Representative Nelson Dollar, Barbara Morales Burke, Blue Cross Blue Shield of NC, Stephen Keene, General Counsel for the NC Medical Society, and I presented as the healthcare panel.  As you can see below, we sat in the above-referenced order.

Panel4

with moderator

Below, I have outlined the questions presented and my personal recollection of each answer.  These answers were not recorded, so, if, by chance, I misquote someone, it is my own personal recollection’s fault, and I apologize.

Our Williams Mullen associate Robert Shaw, acted as the moderator and asked the following questions:

To Rep. Dollar:

Most of us have heard about the discussion in the General Assembly about moving North Carolina’s Medicaid program towards a more fully implemented managed care model or to one using accountable care organizations. Where do the House and Senate currently stand with respect to these models, and what are the prospects for passing Medicaid reform in next year’s long session of the General Assembly?

Summary: The House and the Senate are not in agreement.  The House put forth a Bill 1181 last session that encompasses the House’s ideas for Medicaid reform.  It was a bipartisan bill.  It was passed unanimously.  Medicaid reform should not be a bipartisan matter.  Our Bill did not fare well in the Senate, but the House believes Bill 1181 is the best we have so far.

To which Keene interjected: It is important that Bill 1181 was unanimous. The Medical Society endorses the bill. 

To Barbara Morales Burke:

As we head into open enrollment season under the Affordable Care Act, what are the biggest challenges you see from the insurer’s perspective in complying with Affordable Care Act requirements and meeting the needs of the marketplace?

Summary: BCBS, as all other insurance companies, faced unique times last year during the open enrollment and this year will be even more important because we will find out who will re-new the policies.  While BCBS was not perfect during last year’s open enrollment, we have learned from the mistakes and are ready for the upcoming enrollment.

To Steve Keene:

What concerns are you seeing from members of the North Carolina Medical Society regarding patients’ access to providers of their choice and your members’ participation in the major health insurance networks?

Summary: This has always an issue since he came to NC. He actually wrote a memo regarding the access to provider issue back in the 1990s.  The insurance need to come up with a known a published standard. BCBS actually has better relationships with providers than, say, for example, a United Healthcare.  If the insurance company decides to only use X number of ob/gyns, then it should be clear why the insurance company is only contracting with x number ob/gyns.

To Knicole Emanuel:

Under the Affordable Care Act, the standard for withholding payments in the event of a credible allegation of fraud has changed. What is the standard for a credible allegation of fraud and how does such an allegation affect Medicaid reimbursements?

Summary: The ACA was intended to be self-funding.  In drafting the ACA, 42 CFR 455.23 was amended from allowing states to choose whether to suspend Medicaid reimbursements upon credible allegations of fraud to mandating the states to suspend payments.  The basis for a suspension is credible allegations of fraud and only requires an indicia of reliability.  This indicia of reliability is an extremely low standard and, thus, adversely impacts health care providers who are accused of fraud without a basis, such as a disgruntled employee or anonymous and unfounded complaint.  

For more information on suspension of Medicaid payments, please see my blogs: “How the ACA Has Redefined the Threshold for “Credible Allegations of Fraud” and Does It Violate Due Process?” or “NC Medicaid Providers: “Credible Allegations of Fraud?” YOU ARE GUILTY UNTIL PROVEN INNOCENT!

To Keene and Burke: (ACA topic)

One of the concerns, or perhaps benefits depending on one’s perspective, about the implementation of the Affordable Care Act is the possible transition from our country’s employer-based health insurance model. Are you seeing any trends away from the employer-based health insurance model, or do you expect such a trend in the future?

Summary: (From Keene) He sees the employer-based health insurance model as a tax issue.  Employer-based health insurance is not going anywhere unless the related tax break is eliminated.  Keene does not have an opinion as to whether the employer-based health insurance model is good or bad; he just believes that it is not going anywhere.  On a side note, Keene mentioned that, with employer-based health insurance, the employee has a much smaller voice when it comes to negotiating any terms of the health insurance.  The employee is basically at the whim of the employer and health insurance company.

Dollar and Emanuel: (Medicaid reform)

Who are the major contributors to the legislative discussion on Medicaid funding and reimbursement rates? What stakeholders do legislators want or need to hear from more to make sound policy decisions about funding decisions?

Summary: (From Dollar) It is without question that the legislators are surrounded by lobbyists regarding the discussion as to Medicaid funding and reimbursement rates.  I stated that the reimbursement rates are too low and are a direct correlation as to quality of care.  Rep. Dollar stated that he is open to hearing from all.  Furthermore, Rep. Dollar believes that the Senate Bill on Medicaid reform is a good start for Medicaid reform. The Bill implements the Accountable Care Organizations (ACOs), and is supported by the NC Medical Society.

Summary: (From me) I support Medicaid reform that eliminates the MCOs in behavioral health care.  These MCOs are prepaid and have all the financial incentive to deny services and terminate providers.

Burke: (ACO)

How is Blue Cross Blue Shield of North Carolina working with providers to take advantage of the new Medicare Shared Savings Program? (E.g., partnership signed with WakeMed Key Community Care (an accountable care organization) in July.)

Summary: BCBS works very hard to maintain solid relationships with providers.  To which Keene agreed and stated that other private insurance does not.

The health care panel was great.  We hope to host a State of the State on Health Care panel discussion annually.

Broken Promises and the NC Waiver: You Do NOT Get Your Choice of Provider!!

“One can talk good and shower down roses, but it’s the receiver that
has to walk through the thorns, and all its false expectations.” –Anthony Liccione

In the 1968 Presidential campaign, Richard Nixon stated that “new leadership will end the war” in Vietnam. Also, in a 1968 interview, Nixon said he had “no magic formula” or “gimmick” for ending the Vietnam War. Then, in his memoirs, Nixon stated he never claimed to have such a plan. This is called a broken election promise.

Sadly, Richard Nixon’s broken election promise was not the first, nor would it be the last. We have become used to politicians making election promises and breaking those same promises which got them elected once they are in office.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

“Read my lips: no new taxes.”

Over the last few years, I have written ad nausem about accountability and proper supervision when it comes to the Managed Care Organizations (MCOs) in North Carolina. The other day, I was reviewing some pertinent federal regulations and came across this:

§ 438.52 Choice of MCOs, PIHPs, PAHPs, and PCCMs.

• General rule. Except as specified in paragraphs (b) and (c) of this section, a State that requires Medicaid beneficiaries to enroll in an MCO, PIHP, PAHP, or PCCM must give those beneficiaries a choice of at least two entities.

Obviously, North Carolina is not adhering to the above-referenced requirement.

Pull up the Waiver. In order to offer Medicaid enrollees only one MCO or other such entity, North Carolina would have had to request a waiver of 42 CFR § 438.52.If you rely on Medicaid for behavioral health care and live in Wake County, you have no choice but to rely on the provider network of only entity, Alliance Behavioral Health (Alliance), to receive services. For example, you do not get to choose between Alliance’s provider network and Eastpointe Behavioral Healthcare’s (Eastpointe) provider network. Staying with the same theoretical hypothesis, if your provider was not anointed with the gift of being in Alliance’s network, then you do not get to stay with your provider.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

Similar to President Barack Obama’s contention quoted above, we made similar promises to the Center for Medicare and Medicaid Services (CMS). Our promises are found within our Waivers. We have two Waivers, one for the developmentally disabled population and one for the mentally ill/substance abuse population. Each Waiver waives certain federal exceptions. However, in lieu of the federal requirements, we make certain promises to CMS. In order to waive 42 CFR § 438.52, we made certain promises to CMS in order to circumvent the necessary provisions of 42 CFR § 438.52.

The State sought a waiver of section 1902(a)(4) of the Act:

“The State seeks a waiver of section 1902(a)(4) of the Act, which requires States to offer a choice of more than one PIHP or PAHP per 42 CFR 438.52. Please describe how the State will ensure this lack of choice of PIHP or PAHP is not detrimental to beneficiaries’ ability to access services.”

Here are our promises:

“Under these circumstances, the State does not believe that making only one plan available in each geographic area of the State will negatively impact recipients’ access to care.”

“The LMEs have decades of experience locating and developing services for consumers with MH/IDD/SAS needs, and over the years, have built strong and collaborative working relationships with the providers of these services.”

“These providers support this initiative and consumers have at least as much choice in individual providers as they had in the non-managed care environment.

“Enrollees will have free choice of providers within the PIHP serving their respective geographic area and may change providers as often as desired. If an individual joins the PIHP and is already established with a provider who is not a member of the network, the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

My two personal favorites among the State’s promises to CMS are: (1) “consumers have at least as much choice in individual providers as they had in the non-managed care environment;” and (2) the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.”

These promises, in reality, are utter horsefeathers.

Over and over my provider clients come to me because one of the MCOs has terminated their Medicaid contract, usually for absolutely no valid reason. Over and over my provider clients tell me that their consumers are devastated by the news that they may lose their provider. I have had consumers contact me to beg me to help the provider. I have had consumers appear in court stating how much they want that particular provider. I have had provider clients cry in my office because their consumers are so upset and regressing because of the news that they may have to find another provider.

Yet, we have promised CMS that consumers have just as much choice in providers than when there was no managed care.

In the words of Dorothy from the Wizard of OZ, “You ought to be ashamed of yourself. Frightening him like that when he came to you for help.”

Similarly, our Medicaid recipients go to their providers for help. They create relationships…trust…bonds. And the MCOs are terminating these very providers, most for invalid and erroneous reasons, and, certainly, without the consideration of our promise to CMS.

But, remember, we are told the PIHPs will make every effort to keep the consumer with the chosen provider…

It would be interesting to do a public records request as to how many providers have been terminated by the MCOs in the last 2 years. Because, even if only 1 provider were terminated in the past 2 years and its consumers still wanted to go to that particular provider, then our State has broken its promise.

Apparently, due to my outspoken positions, DHHS will no longer honor my public records requests, which I think is absolutely preposterous. I am, still, a paying taxpayer last time I checked, which is every pay-day when I only get 60% of my wages. If any of you would submit this public records request, please forward it to me. I would be grateful for the information.

PCS Medicaid Reimbursement Rates Are TOO LOW to Maintain Adequate Quality of Care, in Violation of the Code of Federal Regulations!

I recently spoke at the Association for Hospice and Home Care (AHHC) and the NC Association for Long Term Care Facilities (NCLTCF) conferences. At issue at both conferences was the reimbursement rate for personal care services (PCS), which is extremely important to both home health agencies (HHAs) and long-term care facilities (LTCFs).

Both AHHC and NCLTCF, as associations, are vital to the HHAs and LTCFs across the state. Associations provide a network of peers, up-to-date information, and lobbying efforts. The old saying, “United we stand, divided we fall,” comes to mind.

The saying, “United we stand, divided we fall,” was originally coined by Aesop, one of my favorite storytellers of all time, in the story “The Four Oxen and the Lion,” which goes like this:

“A lion used to prowl about a field in which four oxen used to dwell. Many a time he tried to attack them; but whenever he came near they turned their tails to one another, so that whichever way he approached them he was met by the horns of one of them. At last, however, they fell a-quarrelling among themselves, and each went off to pasture alone in a separate corner of the field. Then the lion attacked them one by one and soon made an end of all four.”

UNITED WE STAND, DIVIDED WE FALL.”

I think “The Four Oxen and the Lion” is indicative as to the importance of an association, generally. An association is truly essential when it comes to lobbying. There are two times during which we have a potential impact as to the wording of statutes: (1) During the forefront, by lobbying efforts; and (2) At the backend, through litigation. Obviously, if the forefront is successful, then there becomes no need for the backend.

Much to my chagrin, in my explanation above, I am the “backend.” Hmmmm.

Because I am a litigator and not a lobbyist, I am only called upon if the forefront fails.

In the last session, the General Assembly enacted Session Law 2014-100, which reduced the Medicaid reimbursement rates for all services by 3%.

“SECTION 12H.18.(b). During the 2013-2015 fiscal biennium, the Department of Health and Human Services shall withhold reduce by three percent (3%) of the payments … on or after January 1, 2014” (emphasis added).”

The PCS reimbursement rate became $13.88. Session Law 2014-100 was signed into law August 7, 2014; however, Session Law 2014-100 purports to be effective retroactively as of October 2013. (This brings into question these possible recoupments for services already rendered, which, in my opinion, would violate federal and state law, but such possible violations (or probable or currently occurring violations are a topic for another blog).

It is without question that the Medicaid reimbursement rate for PCS is too low. In NC, the PCS reimbursement rate is currently set at $13.88/hour (or $3.47/15 minutes). It is also without question that there is a direct correlation between reimbursement rates and quality of care.

Because Medicaid pays for approximately 67% of all nursing home residents and recipients of home health care in USA, the Medicaid reimbursement rates and methods are central to understanding the quality of care received by PCS services and the level of staffing criteria expected.

PCS for adults are not a required Medicaid service. As in, a state may opt to provide PCS services or not. As of 2012, 31 states/provinces provided PCS services for adults and 25 did not. Most notably, Florida, Virginia, and South Carolina did not provide PCS services for adults. See Kaiser Family Foundation website.

According to Kaiser Family Foundation, “For the personal care services state plan option, the average rate paid to provider agencies [across the nation] was $18.19 per hour in 2012, a slight increase from $17.91 per hour in 2011. In states where personal care services providers were paid directly by the state or where reimbursement rates were determined by the state, the average reimbursement rate was $16.31 per hour in 2012. Medicaid provider reimbursement rates are often set by state legislatures as part of the budget process.”

See the below chart for a state by state comparison:

PCS across country 1

PCS country 2

Why should we care about the Medicaid PCS reimbursement rates?

1. Low reimbursement rates directly, and negatively, impact quality of care.
2. The aides who provide the PCS services, whether in someone’s home or at a LTCF, are often, him or herself on Medicaid.
3. It is in our best interest as a public for home health care agencies and LTCF to continue to accept Medicaid recipients.
4. It is in our best interest as a public for home health agencies and LTCF to stay in business.

#1: Low reimbursement rates directly, and negatively, impact quality of care.

42 U.S.C.A §1396a requires that a state provide Medicaid reimbursement rates at a level to “assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population…”

In an article entitled “Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities,” written by Charlene Harrington, James H Swan, and Helen Carrillo, the authors found that the Medicaid nursing home reimbursement rates were linked to quality of care, as to both RN hours and total nursing hours.

“Resident case mix was a positive predictor of RN hours and a negative predictor of total nursing hours. Higher state minimum RN staffing standards was a positive predictor of RN and total nursing hours while for-profit facilities and the percent of Medicaid residents were negative predictors.”

Numerous other articles have been published in the last few years that cite the direct correlation between reimbursement rates and quality of care.

The argument can be made that $13.88 is too low a reimbursement rate to ensure adequate quality of care. However, again, because this rate was not prevented at the forefront, it would entail a “backend” act of litigation to adjust the current reimbursement rate. (It is important to note that beginning next year, there will be an additional reduction of rate by another 1%).

#2: The aides who provide the PCS services, whether in someone’s home or at a LTCF, is often, him or herself on Medicaid.

According to the Paraprofessional Healthcare Institute, an advocacy group for home care workers, 1 in 4 home health workers has a household income below the federal poverty line and more than 1 in 3 do not have health insurance.

Think about this…home care workers provide PCS to the elderly, disabled, and needy, many of which are on Medicaid and Medicare. Home care workers work full-time changing diapers, assisting with ambulation, dressing, and grooming for the elderly, yet 1 in 4 home care workers are eligible for Medicaid themselves.

Currently, federal minimum wage is $7.25/hour. 18 states have minimum wage equal to the federal minimum wage, including North Carolina. 23 states set minimum wage higher than the federal level. Washington D.C. pays the highest minimum wage at $9.50/hour.

PCS reimbursement rates in NC are $3.47/15 minutes, or $13.88/hour. $13.88 is above the federal and NC minimum wage of $7.25. However, just because the PCS reimbursement rate is $13.88/hour does not mean that the PCS workers are receiving $13.88/hour. The owners of HHAs and LTCFs pay their workers much less than $13.88/hour; they have overhead, insurance, taxes, salaries, etc. to pay…not to mention a percentage of the $13.88/hour needs to be allocated to profit (albeit, however, small).

According to the Bureau of Labor Statistics, in 2013, the average PCS worker’s salary in NC is $19,392/year, or $1,660/month. Working 40 hours a week, a salary of $17,280 equates to approximately $10.10/hour. Obviously, $10.10 is well-above our $7.25 minimum wage, although difficult to make ends meet.

The average fast food worker’s hourly wage is $7.73.

In order for an increase of hourly pay, of any amount, for home health workers, the Medicaid PCS reimbursement rate would need to be increased.

With the current PCS rate at $13.88/hour, home health workers are getting paid between $8.00-11.00/hour. In order for PCS workers to receive $15.00/hour, the PCS rate would need to be increased by $2.00-5.00/hour.

#3: It is in our best interest as a public for HHAs and LTCFs to continue to accept Medicaid recipients.

What if HHA and LTCF refused to accept Medicaid recipients because the reimbursement rates are simply too low?

With the number of people dependent on Medicaid, if HHAs and LTCFs refused Medicaid recipients, our elderly and disabled would suffer.

Perhaps the average length of life would decrease. Perhaps we would implement legal euthanasia. Perhaps the suicide rate would increase. Perhaps the homelessness percentage would reach an all-time high. Is this the world in which you want to live?? Is this the world in which you want to age??

In my opinion, the way we treat our elderly, disabled and needy population is a direct reflection on the level of civilization or educated sophistication.

Here is an excerpt of an article published in 2013 when China passed its new Elderly Rights Law:

Korea: Celebrating old age
Not only do Koreans respect the elderly, but they also celebrate them. For Koreans, the 60th and 70th birthdays are prominent life events, which are commemorated with large-scale family parties and feasts. As in Chinese culture, the universal expectation in Korea is that roles reverse once parents age, and that it is an adult child’s duty — and an honorable one at that — to care for his or her parents.

The U.S. and U.K.: Protestantism at play
Western cultures tend to be youth-centric, emphasizing attributes like individualism and independence. This relates back to the Protestant work ethic, which ties an individual’s value to his or her ability to work — something that diminishes in old age. Anthropologist Jared Diamond, who has studied the treatment of the elderly across cultures, has said the geriatric in countries like the U.K. and U.S. live “lonely lives separated from their children and lifelong friends.” As their health deteriorates, the elderly in these cultures often move to retirement communities, assisted living facilities, and nursing homes.”

#4: It is in our best interest as a public for HHAs and LTCFs to stay in business.

Or we can become more like the Koreans. At least, in this one respect, would emulating the Korean attitude be so bad?

Conclusion

Obviously, we cannot shift the American attitude toward the elderly, disabled and needy within one generation.

But we CAN increase the PCS reimbursement rate.

Here, the forefront was not as effective as needed. Maybe there is a need for a “backend” act of litigation…

Williams Mullen Hosts “The State of the State of Health Care” Panel Discussion

Williams Mullen is hosting a free panel discussion on “The State of the State of Health Care.”  Please see below!

The panelists will be Rep. Nelson Dollar, Steven Keene, General Counsel to the NC Medical Society, Barbara Burke, from BCBS, and me.  The panel discussion will begin at 4:00.  Then from 5:00-6:30 we will have free drinks and appetizers.

Please feel free to come and bring others.  But we do request that you register here by October 10th in order for us to have a correct head count.

panel