There Is Only One Head Chef in the Medicaid Kitchen, Part Deux!

In a groundbreaking decision published today by the Court of Appeals (COA), the Court smacked down Public Consulting Group’s (PCG), as well as any other  contracted entity’s, authority to wield an “adverse decision” against a health care provider. This solidifies my legal argument that I have been arguing on this blog and in court for years!

The Department of Health and Human Services (DHHS) is the “single state agency” charged with managing Medicaid. Federal law requires that that one agency manage Medicaid with no ability to delegate discretionary decisions. Case law in K.C. v. Shipman upheld the federal law. See blog.

Yet, despite K.C. v. Shipman, decided in 2013, in Court, DHHS continued to argue that it should be dismissed from cases in which a contracted vendor rendered the adverse decision to recoup, terminate, or suspend a health care provider. DHHS would argue that it had no part of the decision to recoup, terminate, or suspend, that K.C. Shipman is irrelevant to health care provider cases, and that K.C. v. Shipman is only pertinent to Medicaid recipient cases, to which I countered until I was “blue in the face” is a pile of horse manure.

DHHS would argue that my interpretation would break down the Medicaid system because DHHS cannot possibly review and discern whether every recoupment, termination, and/or suspension made by a contracted vendor was valid (my words, not theirs). DHHS argued that it simply does not have the manpower, plus if it has the authority to contract with a company, surely that company can determine the amount of an alleged overpayment…WRONG!!

In fact, in DHHS v. Parker Home Care, LLC, the COA delineates the exact process for the State determining an overpayment with its contracted agent PCG.

  1. DHHS may enter into a contract with a company, such as PCG.
  2. A private company, like PCG, may perform preliminary and full investigations to collect facts and data.
  3. PCG must submit its findings to DHHS, and DHHS must exercise its own discretion to reach a tentative decision from six options (enumerated in the NC Administrative Code).
  4. DHHS, after its decision, will notify the provider of its tentative decision.
  5. The health care provider may request a reconsideration of the tentative decision within 15 days.
  6. Failure to do so will transform the tentative decision into a final determination.
  7. Time to appeal to OAH begins upon notification of the final determination by DHHS (60 days).

Another interesting part of this decision is that the provider, Parker Home Care, received the Tentative Notice of Overpayment (TNO) in 2012 and did nothing. The provider did not appeal the TNO.

However, because PCG’s TNO did not constitute a final adverse decision by DHHS (because PCG does not have the authority to render a final adverse decision), the provider did not miss any appeal deadline. The final adverse decision was determined to be DHHS’ action of suspending funds to collect the recoupment, which did not occur until 2014…and THAT action was timely appealed.

The COA’s message to private vendors contracted with DHHS is crystal clear: “There is only one head chef in the Medicaid kitchen.”

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on April 5, 2016, in "Single State Agency", Accountability, Administrative code, Administrative Law Judge, Administrative Remedies, Alleged Overpayment, Appeal Deadlines, Appeal Rights, Appealing Adverse Decisions, Audits, DHHS, Federal Law, Gordon & Rees, Health Care Providers and Services, Injunctions, Judicial Review, Jurisdiction, KC v. Shipman, Knicole Emanuel, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Managed Care, Medicaid, Medicaid Advocate, Medicaid Attorney, Medicaid Audits, Medicaid Contracts, Medicaid Providers, Medicaid Recipients, Medicaid Recoupment, Medicaid Reimbursements, NC, North Carolina, OAH, PCG, Petitions for Contested Cases, Post-Payment Reviews, Preliminary Injunctions, Prepayment Review, Public Consulting Group, Public Consulting Group, RAC, RAC Audits, Reconsideration Reviews, Regulatory Audits and tagged , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 1 Comment.

  1. You are my hero!!!! Thank you for your diligent work!

    Bobbie L. Bingham, MA, LPC Licensed Professional Counselor

    DIVERSITY COUNSELING AND COACHING CENTER 110 East Bessemer Avenue Greensboro, NC 27401 336.327.8442 336.217.8862 bbinghamlpc@aol.com

    CONFIDENTIALITY NOTICE: This message and any attachments included are from Bobbie L. Bingham, MA, LPC and are for sole use by the intended recipient(s). The information contained herein may include confidential or privileged information. Unauthorized review, forwarding, printing, copying, distributing, or using such information is strictly prohibited and may be unlawful. If you received this message in error, or have reason to believe you are not authorized to receive it, please contact the sender by reply email or by calling, 336-327-8442. Destroy all copies of the original message.

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