Monthly Archives: December 2014

A New Year and We Will “Ring In” Even Lower PCS Reimbursement Rates: Time for Litigation?

Merry Christmas, everyone!!! And Happy New Year!!

I hope everyone had a wonderful holiday! Personally, Christmas was wonderful for my family.  I actually took some days off.  And our 9-year-old girl received way too many presents.  Plus, I learned that we should be spending way less on her!! We bought her a new saddle, bridle and breast-strap for her horse, but, when asked what she received for Christmas, she tells everyone about the $2 marshmallow gun she received, not the saddle. Regardless, we were able to spend quality time together with my mom and dad and 2 sisters.  My husband Scott, however, got the flu and he has been in bed for the last few days…yuck! But he was healthy on Christmas.

We have been truly blessed this year, and I want to thank you all for reading my blog.

I received an email today from an owner of a home care agency that reminded me that, especially during the holidays, many people are struggling.  This home care agency owner, “we will call him Al,” informed me that he potentially will be closing his agency, which would put approximately 130 employees out of work. Al told me that his agency has been struggling over the past few years with the decrease in personal care services (PCS) reimbursement rate.

Al is not the only home care agency owner who has contacted me in the last few months bemoaning about the low PCS reimbursement rates.  The PCS reimbursement rates are set by legislature, most of the time in the budget bills.  For example, the General Assembly passed the budget this past year, which will decrease the PCS reimbursement rates by another 3% beginning January 1, 2015. (Happy New Years).

See below, which is from another blog post: “PCS Medicaid Reimbursement Rates Are TOO LOW to Maintain Adequate Quality of Care, in Violation of the Code of Federal Regulations!

“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.”

What can be done regarding these low PCS reimbursement rates in NC???

In order to change legislation, one of two avenues exist: (1) lobbying; or (2) litigation.

Over the past few years, while the PCS reimbursement rates have continued to decrease, the associations involved with home care organizations and long term care facilities (companies that provide PCS) have emphasized the lobbying aspect.  No litigation has been filed demanding a reasonable PCS reimbursement rate.

Obviously, the lobbying aspect has yielded less than desirable results.  Instead of increasing the PCS reimbursement rate, the General Assembly has continually decreased the rate.

When one line of attack does not work, you try another.

Maybe it is time for litigation.

OIG Report: MCOs Cause Limited Access to Primary Care for Medicaid Enrollees!

With flu season well under way, access to care to primary care physicians for Medicaid recipients is (as it is always) extremely important.  During flu season, in particular, emergency rooms (ERs) are full of people suffering from flu-like systems.  Many of those in the ER are uninsured, but many of those in the ER have a valid Medicaid card in their wallet.

So why would a Medicaid recipient present themself to the ER instead of contacting a primary care physician?  In many instances, the Medicaid recipients do not have access to primary care. Many physicians simply refuse to accept Medicaid.  Some managed care organizations (MCOs) refuse to contract with a number of physicians sufficient to address the needs of its catchment area.

A December 2014 audit conducted by the Office of Inspector General (OIG) found that access to primary care for Medicaid recipients is in serious question…especially with the onslaught of states moving Medicaid to managed care systems.

32 states contract with 221 MCOs.   From each of the 32 states, OIG requested a list of all providers participating in Medicaid managed care plans.  Remember that, here in NC, our MCOs only manage behavioral health care. We have not yet moved to managed care for our physical health care.  However, this may change in the not so distant future…

Our Senate and House are attempting to pass Medicaid reform. The House is pushing for accountable care organizations (ACOs), which would be run by physicians, hospitals, and other health care organizations. The Senate, on the other hand, is pushing for MCOs. I urge the Senate to review this OIG report before mutating our health care system to managed care.

Federal regulations require MCOs to maintain a network of providers sufficient to provide adequate access to care for Medicaid recipients based on population, need, locations of providers, and expected services to be utilized.

However, as we have seen in NC, the MCOs are not properly supervised and have financial incentives to terminate provider contacts (or refuse to contract with providers). In NC, this has resulted in hundreds, perhaps thousands, of behavioral health care providers going out of business.  See MCOs Terminating Providers and Restricting the Freedom of Choice of Providers for Medicaid Recipients: Going Too Far? and NC MCOs: The Judge, Jury, and Executioner.

The consequences of MCOs picking and choosing to contract with a select few are twofold: (1) the non-selected providers go out of business; and (2) Medicaid recipients lose access to care and choice of providers.

Because of #2, OIG conducted this audit, which, sadly, confirms the veracity of #2.

To conduct the audit, OIG contacted 1800 primary care physicians and specialists and attempted to make an appointment.  OIG wanted to determine (1) whether they accepted Medicaid; (2) whether they were taking new Medicaid patients; and (3) the wait time for an appointment. OIG only contacted physicians who were listed on the states’ Medicaid plans as a participating provider, because Medicaid recipients rely on the states’ lists of participating providers in locating a physician.

Yet, the results of the OIG audit are disturbing, to say the least.

51% of the providers could not offer appointments to enrollees, which raises serious questions as to the adequacy of the MCO networks.

OIG chart

  • 45% did not accept Medicaid
  • 35%: could not be found at the location listed by the plan,
  • 8% were at the location but said that they were not participating in the plan.
  • 8% were not accepting new patients.

The average wait time was 2 weeks for those physicians accepting Medicaid. Over 25% had wait times of more than 1 month, and 10 percent had wait times longer than 2 months.

I guess they can always go to the ER.

Medicare Alert: Mere Documentation Mistakes May Lead to Termination of Your Medicare Enrollment Contract

Another new CMS rule, released yesterday, increases Medicare provider oversight for fraud, waste, and abuse even more.  See CMS Press Release below.

Now CMS can revoke enrollment of Medicare providers who are found to engage in abusive billing practices by billing for services that do not meet the Medicare requirements.

Well, that sounds great on its face.  We don’t want Medicare providers billing for services that do not meet the Medicare requirements.  We all agree.

Here’s the problem with this very broad new rule…

Who determines whether the Medicare services meet Medicare requirements?  A recover audit contractor (RAC) who is paid on contingency fee?  SeeNC Medicaid RACs Paid to Find Errors by Providers, No Incentive to Find Errors by DMA.”  Even though that blog is speaking about NC RACs, it is analogous to Medicare RACs.

I foresee two longterm consequences of this new rule:

1. North Carolina will adopt the same rules for Medicaid billing errors.  And we know how accurate those alleged billing errors have been…SeeThe Exaggeration of Tentative Notices of Overpayment.”

2. On the federal level, Medicare providers are going to start seeing more terminations of their Medicare contracts for supposed billing mistakes.  Perhaps without due process.  Then providers will have to fight to prove that a property right has been violated.

We shall see…

Here is the CMS press release:

New CMS rules enhance Medicare provider oversight;strengthens beneficiary protections

CMS Administrator Marilyn Tavenner today announced new rules that strengthen oversight of Medicare providers and protect taxpayer dollars from bad actors. These new safeguards are designed to prevent physicians and other providers with unpaid debt from re-entering Medicare, remove providers with patterns or practices of abusive billing, and implement other provisions to help save more than $327 million annually.

“The changes announced today are common-sense safeguards to preserve Medicare for generations to come, while making the rules more consistent for all providers that work with us,” Administrator Tavenner said. “The Administration is committed to using all appropriate tools as part of its comprehensive program integrity strategy shaped by the Affordable Care Act.”

CMS Deputy Administrator and Director of the Center for Program Integrity, Shantanu Agrawal, M.D., said, “CMS has removed nearly 25,000 providers from Medicare and the new rules help us stop bad actors from coming back in as we continue to protect our patients. For years, some providers tried to game the system and dodge rules to get Medicare dollars; today, this final rule makes it much harder for bad actors that were removed from the program to come back in.”

CMS is using new authorities created by the Affordable Care Act to clamp down on Medicare fraud, waste and abuse. CMS currently has in place temporary enrollment moratoria on new ambulance and home health providers in seven fraud hot spots around the country. The moratoria are allowing CMS to target its resources in those areas, including use of fingerprint-based criminal background checks. These and other successes continue to protect the Medicare Trust Funds. CMS has demonstrated that removing providers from Medicare has a real impact on savings. For example, the Fraud Prevention System, a predictive analytics technology, identified providers and suppliers who were ultimately revoked, and prevented $81 million from being paid.

New changes announced today allow CMS to:

  • Deny enrollment to providers, suppliers and owners affiliated with any entity that has unpaid Medicare debt; this will prevent people and entities that have incurred substantial Medicare debts from exiting the program and then attempting to re-enroll as a new business to avoid repayment of the outstanding Medicare debt.
  • Deny or revoke the enrollment of a provider or supplier if a managing employee has been convicted of a felony offense that CMS determines to be detrimental to Medicare beneficiaries. The recently implemented background checks will provide CMS with more information about felony convictions for high risk providers or suppliers.
  • Revoke enrollments of providers and suppliers engaging in abuse of billing privileges by demonstrating a pattern or practice of billing for services that do not meet Medicare requirements.