Monthly Archives: February 2023
I have an announcement! I have the pleasure of joining Nelson Mullins as a partner. You may have heard of Nelson Mullins; it is a nationwide firm, and its health care team is “spot on.” Instead of spinning my own wheels trying to figure out the health care law; I now will be able to collaborate with colleagues and like-minded, health care, geeks. Yes, I will be doing the same thing – Medicare and Medicaid provider appeals and fighting terminations, suspensions, and penalties for long-term care facilities, home health, DME, hospitals, dentists…basically anyone who receives an adverse decision from any state or the federal government or a contracted vendor, such as RACs, MACs, TPE, UPICs, etc.
Now to my blog… Today I want to talk about partial hospitalization and billing to Medicare and Medicaid. One of my clients has been not getting paid for services rendered, which is always a problem. The 3rd party payor claims that substance abuse treatment is not partial hospitalization. 49 States consider substance abuse intensive outpatient services (“SAIOP”) and substance abuse comprehensive outpatient treatment (“SACOT”) partial hospitalization. Do you agree? Because, apparently, NC is the sole State that refuses to identify SAIOP and SACOT as partial hospitalization.
Partial hospitalization is defined as a structured mental health treatment program that runs for several hours each day, three to five days per week. Clients participate in the scheduled treatment sessions during the day and return home at night. This program is a step down from 24-hour care in a psychiatric hospital setting (inpatient treatment). It can also be used to prevent the need for an inpatient hospital stay. In reality, partial hospitalization saves massive amounts of tax dollars by not taking up a bed in an actual hospital.
In NC, partial hospitalization is codified in 10A NCAC 27G.1101, which states “A partial hospitalization facility is a day/night facility which provides a broad range of intensive and therapeutic approaches which may include group, individual, occupational, activity and recreational therapies, training in community living and specific coping skills, and medical services as needed primarily for acutely mentally-ill individuals. This facility provides services to: (1) prevent hospitalization; or (2) to serve as an interim step for those leaving an inpatient hospital. This facility provides a medical component in a less restrictive setting than a hospital or a rehabilitation facility.”
So, why does this 3rd party payor believe that SAIOP and SACOT are not partial hospitalization? I believe this payor’s stance is wrong. I spoke about their wrongness on RACMoniter, and I hope it may give me some “sway.”
Partial hospitalization is considered a short-term treatment. It is supposed to last 2-3 weeks. However, as many of you know substance abuse is not wiped away in 2-3 weeks. It is a long term process to overcome substance abuse issues. States’ Medicaid programs will question why consumers bounce from SAIOP AND SACOT over and over. In fact, another one of clients is being investigated by the Medicaid Investigative Division (“MID”) for having consumers in SAIOP and SACOT too long or too many times.
Substance abuse services are audited a lot. In fact, Medicare and Medicaid audits occur most often in behavioral health care, home health, and hospice. On January 24, 2023, the New York State Comptroller announced it found $22 million in alleged improper payments. I say alleged because, I would say, 90% of alleged overpayments accusations are inaccurate. The poor provider receives a letter saying you owe $12 million dollars, and their hearts drop. They imagine themselves going out of business. Then they hire a lawyer and it turns out that they owe $896.36. I give that example as a real-life example. I actually had a client accused of owing $12 million dollars and after a 2-week trial, the judge decided that this company owed $896.36. A big difference, right? We appealed nonetheless. 🙂
The Texas Medical Association (TMA) is challenging a 600% hike in administrative fees for seeking federal dispute resolution in the No Surprises Act (NSA) situations. The association seeks relief by filing a fourth lawsuit in the U.S. District Court for the Eastern District of Texas. The Texas Medical Society is the largest state medical society in the nation, even though it is the 2nd largest State followed by Alaska, representing more than 57,000 physicians and medical student members.
The hike only applies to out-of-network physicians or provider and a health plan payor. These situations occur when emergency services are provided by a doctor or health care provider outside of the patient’s insurance network or when out-of-network services are provided at an in-network facility.
The federal agencies set the initial administrative fee at $50 and announced in October 2022 it would remain at $50 for 2023. Two months later the agencies announced a 600% hike in the fee to $350 beginning in January 2023, “due to supplemental data analysis and increasing expenditures in carrying out the Federal IDR process since the development of the prior 2023 guidance.”
The steep jump in fees will dramatically curtail many physicians’ ability to seek arbitration when a health plan offers insufficient payment for care.
The reason that I know the TX Medical Society filed this lawsuit, because it just happened, is because I joined ASMAC, which is the American Society of Medical Association Counsel. It’s an amazing association comprised of Presidents of State medical associations all of whom are lawyers trying to protect physicians. Kelly Walla is the Vice President and General Counsel for the Texas Medical Association, and she circulated an email letting us know. She was a week late in circulating the email because, apparently, the power has been out in Austen.
The association claims that the new uptick in administrative fees violates the notice and comment requirements. I do have a personal question – if the association is successful and gets the fee requirement eradicated due to notice and comment violations, wouldn’t TX just reinstitute the hike in fees, but allow comments next time? If we really ask ourselves, do the comments matter? Who looks at them and do they carry any weight?
Since this hike only applies to out-of-network providers, I wonder if, in TX, the networks are closed. Closed networks means that, supposedly, the network has enough providers and it’s not accepting more providers. What network has “enough providers?” If the law states that everyone has the freedom to pick their provider of choice or “access to care,” then a closed network would fly in the face of that prospect. I have been successful in fighting “closed networks” in the past and gaining access to that “closed network.”
Going back to Texas, the rules include establishing the nonrefundable administrative fee all parties must pay to enter the federal independent dispute resolution (IDR) process in the event of a payment disagreement between an out-of-network physician or provider and a health plan in circumstances covered by the law. The suit lists two radiology groups as plaintiffs: the Texas Radiological Society and Houston Radiology Associated. These groups bill small value claims, so they will be particularly hurt because most claims billed are less than $350, according to the suit. Apparently, the Emergency Department Practice Management Association supports the association’s lawsuit. CMS’ reasoning for the hike is the backlog. But, making independent dispute resolution more expensive, when doctors have a right to IDR, in my opinion, is counterintuitive. Get more arbitrators. Don’t heighten your fences.