Category Archives: Carolinas Center for Medical Excellence
On one of my many trips to the Division of Medical Assistance (DMA), I noticed two interesting items: (1) The flower vases at DMA are filled with paperclips, which securely anchor artificial flowers; and (2) A flyer reads, “Thinking Medicaid fraud and abuse “don’t hurt anyone” is just wrong! Every dollar wasted or stolen is a dollar that could have been used on provide health care for someone who needs it and follows the rules.”
The first item, the flower vases filled with paperclips and artificial flowers, I chalked up to resourcefulness. Someone at DMA wanted a little bit of decor…a bit of color…but, definitely did not want to spend our taxpayers’ money on a bouquet of flowers, which would just die and need to be replaced, or a piece of art, which could be construed as a poor use of taxpayers’ money. Instead, this resourceful person used office supplies and a cheap silk flower to decorate DMA.
The second item, the flyer,I chalked up to good propaganda. I mean, everyone wants to discourage Medicaid fraud, right? Obviously, Medicaid fraud costs taxpayers lots of money. Obviously, when a provider commits Medicaid fraud, we, as taxpayers, think….”How dare they! That fraudulent provider took money that could have been used on a Medicaid recipient!”
But…what about the Medicaid dollars being wasted on paying inept, third-party contractors erroneously conducting post-payment reviews and putting many Medicaid providers out-of-business by billing them for crazy, large, extrapolated amounts of money that they supposedly owe back to the government? Or erroneously conducting prepayment reviews? Or mis-managing behavioral health? What about THOSE Medicaid dollars that could have gone to services for Medicaid recipients????
Think about it. We are paying these third-party contractors with Medicaid dollars…Tax dollars.
We spend approximately 36 million, tax dollars a day on Medicaid.
When I first heard that statistic, I thought, “Wow! There are a lot of people on Medicaid.” Which is not completely incorrect. There are a lot of people on Medicaid. Approximately 1.5 million North Carolinians. But, the problem is that the $36 million a day does not go to treatment and/or medical services for Medicaid recipients. Much of that $36 million a day goes to third-party contractors who may or may not be conducting their jobs appropriately, efficiently, or, even, correctly.
Say I apply for and get a job at the Carolinas Center for Medical Excellence (CCME). My salary would be (I don’t know whether CCME makes any of its own money from private money, but), at least, partially, funded by federal and state taxes. Which means, if I were hired by CCME as a Medicaid auditor, theoretically, my audit results would be or should be available to the public. As one who receives taxpayer money, my findings should be available to the taxpayers…right? So if I were doing a crappy job as a Medicaid auditor, I should be accountable (for my crappiness) to all taxpayers. Just like the resourceful DMA employee would have been accountable if he or she had bought an expensive piece of art instead of filling flower vases with paper clips and cheap silk flowers.
Going back to the “accountability to taxpayers” theme, shouldn’t the third-party contractors receiving federal and state Medicaid taxpayer money be accountable to any interested taxpayer?
And shouldn’t the taxpayers in NC be concerned if these third-party contractors are not doing their jobs appropriately, efficiently, or, even, correctly?
And the $36 million/day…shouldn’t we be concerned that this $36 million/day is not going to service Medicaid recipients, but, instead, much of the $36 million/day is going to the salaries for people who work at these third-party contractors and who are not conducting their jobs appropriately, efficiently, or, even correctly.
If I could boycott paying state and federal taxes until the taxes were appropriately used, I would. But I believe I would end up in jail. Maybe we need a 2013 Boston Tea Party.
Remember the Boston Tea Party?
The Sons of Liberty, a political group in Boston during the American Revolution, was really mad about England taxing the colonists’ tea. They were ticked off about England’s Tea Act, which was passed in 1773. Colonists objected to the Tea Act because they believed that it violated their fundamental rights (remember, the violation could not have been considered a violation of constitutional rights, as the Constitution was not ratified until 1787) The slogan for the Boston Tea Party was “No taxation without representation.” Or, in other words, we can be taxed only by our own elected representatives and not by England because no colonist is a member of Parliament in England. So the colonists dumped a shipload of tea into the ocean to make a point.
Today, if a group of “radicalists” (because that is what they would be called nowadays) dumped a shipload of Medicaid funds into the ocean off the Boston harbor that group would, most likely, be jailed for stealing, destruction of property, trespassing, and probably contamination of the waters (if that were a criminal act), but definitely sued civilly for monetary damages.
Personally, I expect people receiving compensation from my tax dollars to (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly.
How do we determine whether these third-party contractors are conducting their jobs (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly?
If I hired a painter, how would I determine that painter were doing his or her job (a) appropriately; (b) efficiently; and (c) correctly? Answer: Supervision. If I told my painter I wanted my bathroom painted red and he or she painted the bathroom green, I would (a) fire him or her; and (b) sue for breach of contract (seriously….WHO would want to work for ME???).
Yet, the State of North Carolina hires companies that do not conduct the jobs for which the company is hired appropriately, efficiently, or correctly, and, yet, NC does not fire the company…does not sue the company. It’s almost as if….if I hire someone else to do it, then I am not to blame. It’s as if….I had an associate who completely missed an appeal deadline, and, instead of saying, “Hey, I am the partner…I am the one in charge….Blame me…,” instead I said, “Whoa there, client, it’s not my fault. Blame my associate.”
Someone has to be accountable!
Had my previously-mentioned, resourceful, DMA employee bought a bouquet of fresh-cut flowers for decoration for the DMA office every week with taxpayers’ money or an Edvard Erikson statue of “The Little Mermaid” for decoration, someone would have been accountable, most likely, my (then non-resourceful) DMA employee.
Yet, DMA hires third-party contractors that are not conducting their jobs appropriately, efficiently, or correctly, and DMA says, “Whoa there, taxpayer, it’s not my fault. Blame the third-party contractor.”
And I think, “How dare they! That inappropriate, inefficient, and inaccurate third-party contractor took money that could have been used on a Medicaid recipient!”
What is the legal process?
How long does it take?
How much does it cost?
What is the likelihood of success?
If I win, what will happen?
These are probably the most FAQ by providers who have either been placed on prepayment review or been through prepayment review, only to have their Medicaid contracts terminated at the end of six months.
First, what is prepayment review?
If you are an old hat to this blog, then skip this section. Most likely, you already know what the dreaded term “prepayment review” means. If you are a newbie, prepayment review is a status. A bad status. A status created by the Department of Health and Human Services (DHHS). In essence, prepayment review means that, for 6 months, you must have all claims evaluated by a third-party prior to being paid. You can render medically necessary services (for which you obtained prior authorization) and the third-party could decide that you do not deserve to be reimbursed. You can go 6 months without reimbursement, but provide services and pay your staff, then have your Medicaid contract terminated erroneously and because of the subjective and incorrect opinion of the third-party contractor.
However, this blog is about the legal process of fighting your Medicaid contract termination, not the absurdity of the prepayment review process.
The legal process:
You determine that (a) you are wrongfully withheld Medicaid reimbursements while on prepayment review; or (b) your Medicaid contract has been terminated based on an erroneous prepayment review.
1. You hire counsel. (It does not have to be me. Just a knowledgeable Medicaid attorney).
2. The attorney files a Motion to Stay, Temporary Restraining Order, and Preliminary Injunction (TRO) against DHHS, DMA. The third-party auditor that conducted the prepayment review does not need to be named because the auditor is considered to be an agent of the state. In fact, whenever I have filed a TRO, DMA automatically brings a witness from the third-party auditor. If DMA did not, DMA would not be able to dispute my contention that the prepayment review was conducted erroneously.
3. NC Civil Rule of Procedure, Rule 65 governs injunctions (A TRO is legally considered an injunction. The difference is between a court of equity and a court of law).
4. Usually within 7-10 days, (barring some unforeseen hurdle) the Administrative Law Judge (ALJ) will either grant or deny the TRO.
It is important to note that not all ALJ’s procedural postures for TROs are identical. One ALJ may grant the TRO with no legal arguments heard from opposing counsel and schedule the Preliminary Injunction hearing in the near future. Another ALJ may require telephonic legal arguments prior to granting the TRO. Yet another ALJ may require legal arguments in person at the Office of Administrative Hearings (OAH).
5. Once the TRO is granted, status quo governs. In other words, the TRO allows you to have your Medicaid contract, service Medicaid recipients, and get reimbursed…just as if the prepayment review had never happened.
6. A TRO is VERY temporary. For the most part, if executed strictly according to Rule 65, a TRO is granted without hearing from the other side. Therefore, a preliminary injunction hearing must be scheduled as soon as possible. The ALJ does not want to burden an unheard party’s rights for too long without hearing that unheard party’s side.
7. Within a month or so after the grant of the TRO, a preliminary injunction hearing is scheduled. (This is normally conducted in one, full-day hearing…sometimes shorter if you have one particular Judge, because he or she has such a clear understanding of the facts).
8. At the preliminary injunction hearing, you must show: (1) likelihood of success on the merits; and (2) irreparable harm. Which means, in the vernacular, (1) that the prepayment review was conducted incorrectly (or your Medicaid reimbursements are being wrongly withheld); and (2) if the termination of your Medicaid contract is not stopped, then you would suffer great consequences.
9. If the ALJ grants the preliminary injunction, then that grant of relief maintains status quo until the full-blown hearing.
10. The full-blown hearing will be held, generally, over 6 months in the future. Which means that you will be able to render medically necessary services for Medicaid recipients and be reimbursed for services rendered until the final adjudication of the lawsuit.
Basically, once the TRO is filed, you could be “back to normal” or status quo within 7-10 days. That does not mean that the legal battle is over. In fact, once the TRO is granted and you are back to normal, the legal battle just begins. The legal battle can be a long, stressful and drawn-out process. But, at least, you are able to render medically necessary services and receive reimbursement.
As to cost, the legal process is expensive. Obviously, cost depends on the attorney that you hire, that hired attorney’s billable rate, and that hired attorney’s legal knowledge of Medicaid. Be sure to ask many questions prior to engaging any attorney. Anybody would hate to get an unexpectedly high bill.
Also, check with your liability insurance to determine whether your liability insurance will cover attorneys’ legal fees. Many times your liability insurance will cover regulatory audits.
Also, NCGS 6-19.1 allows a party defending against an agency decision to petition the court for attorneys fees within 30 days of final disposition of the case. Therefore, there is a possibility to have your attorneys’ fees reimbursed, but not until the very, very end of your case. You would be responsible for fronting the attorneys’ fees with a chance of not recovering your attorneys’ fees at the back-end.
As to likelihood of success, obviously, it depends on your particular facts. Was the third-party auditor really actually wrong in its audit denials? Does your documentation actually meet compliance requirements. Remember, just because the auditor believes that your documents are not compliant, does not mean your documents are actually noncompliant. But likelihood of success rests primarily in your facts/documents. Your attorney should be able to be more specific.
Can it be?! Is it true?! NC General Assembly Passing Law to Supervise the MCOs? And Giving Counties a Choice of MCOs?
Am I living in some alternate universe?
Surely, I have misread or misunderstood Session Law 2013-85!
I cannot believe my eyes. Even more so, I cannot believe the General Assembly could possibly make a good law regarding the Managed Care Organizations (MCOs).
To all lawmakers, I am truly sorry for my obvious and apparent cynicism. But forgive me, the potential NCGS 108D statutes had not made me hopeful for the future of health care providers.
Session Law 2013-85 (SL 2013-85) was signed by Gov. McCrory on June 12, 2013 (last Wednesday). SL 2013-85 is entitled, “An Act to Ensure Effective Statewide Operation of the 1915 (b)/(c) Medicaid Waiver.” Its status is “completed legislative action.”
SL 2013-85 requires:
1. The Secretary to certify whether the MCOs are in compliance with certain requirements and must be made every 6 months.
Can we say…is it possible…dare we say….DMA must supervise the MCOs?
According to SL 2013-85, the Secretary’s certification evaluations will be every 6 months beginning August 1, 2013. Not sure whether that means the first evaluation will be on August 1, 2013, or whether the 6 month period begins to run August 1, 2013, meaning the first evaluation would be January 1, 2013.
2. The Secretary’s evaluation will be based on an internal and external assessment made by an independent external review agency.
Hmmmm….this is starting to sound like an audit…an audit on the MCOs!!!! Can we hire CCME??? (they never find anything good).
So what requirements will the Secretary be determining are or are not in compliance?
I. MCO has made adequate provision against the risk of insolvency.
II. The MCO is making timely provider payments. (Of course, the implementation of this clause, I wager, will be to pay only providers the MCOs determine worthy).
III. The MCO is exchanging billing, payment, and transaction info to the Department.
Ok, so the Secretary will be, or, at least, making an effort to ensure compliance of the MCOs. That’s better than no supervision, right? And the Session Law shows the intent of lawmakers to begin supervision of MCOs.
Going to county choice of MCOs…
According to SL 2013-85, a county that wishes to disengage with a particular MCO may realign with another MCO with permission by the Secretary.
Counties get to choose MCOs?????????
Right now, the MCOs are jurisdictional and regional. Here is a map of the MCOs currently.
As you can see, across North Carolina each MCO is basically assigned a catchment area. So, as a health care provider, if you provide mental health services to Medicaid recipients in Pitt County, you must contract with East Carolina Behavioral Health (ECBH) because Pitt county is in the yellow ECBH area.
BUT…..In a system in which counties could choose which MCOs with whom to contract, I wager, that system would create new MCOs….ones that were more “county/health care provider friendly” (i.e., authorizes medically necessary services, does not terminate provider Medicaid contracts without merit, etc.). Let me explain:
(People, this is a hypothetical) ECBH, in Pitt County, determines, for whatever reason, that personal care service hours (PCS) cannot exceed 40 hours/week without exceptions (even if a Medicaid recipient requires 24-hour care). In my hypothetical, in Pitt county, many, many Medicaid recipients get denials from ECBH to receive PCS in excess of 40 hours. All these recipients complain to the providers. The providers are losing money because services are not getting authorized. The providers feel as if their clients are getting a disservice because a medically necessary service is not being provided to the Medicaid recipients. The providers complain to the county commissioner and other local politicians. Eventually, Pitt county gets sick of it and determines that Pitt county no longer wants to work with ECBH. Pitt County requests and receives authorization from Secretary Aldona Wos to realign with MCO Smokey Mountain Center (SMC) (in the west). Unlike, ECBH, SMC is absolutely willing to authorize PCS service in excess of 40 hours/week upon a showing of medical necessity.
So what happens?
ECBH loses a county. I would guess that if an MCO loses a county that the MCO would receive less Medicaid funding, which would mean potential less profit for the MCO.
SMC gains a county. I would guess that SMC would receive more Medicaid money with an additional county.
The MCOs, all of a sudden, have a monetary incentive to make the counties happy in their own catchment areas. Because if too many providers complain and the county switches MCOs, then the MCOs’ potential profit decreases.
Suddenly, customer service becomes, if not important, a factor in the MCOs’ minds. (Minds of the board members).
Suddenly MCOs do not have a monopoly on its catchment area. If choice of MCOs exist for the counties, then counties have more persuasion with the MCOs.
Why is this so important?
Let me give a very simplistic hypothetical:
I live in Wake County. Because I live in Wake county and, in my hypothetical, Wake county has a contract with Harris Teeter as the Wake county grocery store, and only Harris Teeter. In my hypothetical, I am only allowed to get my food at Harris Teeter. HT knows that it has Wake county’s business no matter what. To increase profits, HT begins to put 4 lbs of potatoes in bags, but sells the bags for 5 lb. prices. Or, instead of throwing away rotten produce, keeping it for sale and requiring the customers to buy the rotten produce first, in order to get the fresh produce. The customers complain, but HT merely laughs, saying, “We don’t care, Wake county, you can’t choose to go to Kroger anyway.”
BUT …What if? What if….Wake county DOES have the authority to determine that Wake county no longer wants to buy from HT, and, instead, can make a contract with Kroger. Kroger has the incentive to keep prices fair and produce fresh, because Kroger knows that if Kroger does the same practices that HT did, that Wake county will go to Piggly Wiggly. (Don’t you just love a Piggly Wiggly?)
This is the heart of an argument for competition in the market…capitalism, if you will.
The thought is, generally, that if the MCOs have to compete for business, the MCOs have incentive to provide good services to keep the client-county.
“Capitalism is like a child: if you want the child to grow up free and productive, somebody’s got to look over the shoulder of that child.” Tavis Smiley.
If, by chance, I have misread SL 2013-85 or, by chance, I am in some alternate universe, and SL 2013-85 is not real, then I just had a great idea. I’m kidding. I gives kudos to the General Assembly on this one.
Let’s just hope that it is implemented fairly.
Lately, I have heard the phrase NOT “in good standing” with DMA too often. Whenever I hear not “in good standing,” I have this image of the movie “Fred Clause.” Remember when Vince Vaughn, who is playing Santa’s younger brother, is asked to stamp the children’s Christmas list with “naughty” or “nice?” At first, he stamps the lists correctly…or per Santa’s orders. Then Fred Clause gets angry and stamps every Christmas list “Nice.” Well, being NOT “in good standing” with DMA is like being on the “naughty” list for Santa Clause, especially when Santa, as in the movie “Fred Clause,” contracts out Santa’s very important job to a third-party, Fred Clause, who begins to determine “naughty” and “nice” completely arbitrarily and without due consideration to the individual child’s facts or circumstances.
If you are reading this and thinking….”NOT “in good standing?”…I’ve never heard of such a thing….,” then take a moment, think about all the ways you are blessed (BTW: not knowing what “not in good standing” is one of those blessings). Take a moment and pat yourself and your team/staff on the back.
If you are reading this and thinking… “Yeah!…What the heck is NOT “in good standing?”…is there such a thing…is this legal?” Then this blog is for you.
What IS not “in good standing?”
Well, we know the consequences are drastic. If you are found to be “not in good standing,” the MCOs refuse to contract with you or terminate an already existing Medicaid contract. DMA terminates your Medicaid contract. You are not reimbursed for Medicaid services rendered. In drastic cases, you are forced to close your business. Go bankrupt. Fire all staff. And never service Medicaid recipients again.
And for all those above-referenced consequences…all because “You are not in good standing with DMA.” What???? What is “not in good standing with DMA?” Is that like getting an ‘F’ in drafting PCPs? Or a ‘C’ in treatment plans? Maybe a B- in service notes?
What IS “in good standing?”
According to the Division of Medical Assistance (DMA) website, “[t]he N.C. Medicaid Program recognizes the need to promote access to care by enrolling all providers in a timely manner and is committed to ensuring the provision of quality care for our citizens. The enrollment process includes credentialing, endorsement, and licensure verification to ensure that all providers are in good standing in the community.” (emphasis added).
To me, “good standing in the community” means: (1) not committing criminal acts; (2) maybe..being a good neighbor; (3) charitable services; (4) not littering; (5) helping stray animals get back to their owners…
But, obviously, “in good standing” means something completely different to DMA. So, I looked for a definition. And looked. I found the July 2012 Medicaid Bulletin that states:
Clarification of the Division of Health Service Regulation Good Standing Status
The N.C. Division of Health Service Regulation (DHSR) has provided clarification on its definition of good standing status. Effectively immediately, DHSR good standing status is associated with a facility – not an entire agency or an individual associated with an agency or facility. DHSR determines whether facility is in good standing based on current and active administrative actions against the facility.
Actions included in the determination that a facility is not in Good Standing include:
- Active Type A or Imposed Type B, based on Provider Penalty Tracking Database [criteria in NCGS 122C-23(e1) – non-compliance in Article 3, Client Rights].
- Current Intent to Revoke – Intent to Revoke is active and has not been rescinded.
- Active Suspension of Admissions – Suspension of Admissions has not been lifted
- Active Summary Suspension – Summary Suspension was issued and has not been lifted.
- Active Notice of Revocation – Notice of Revocation is current, and may be in appeal.
- Revocation in Effect – Notice of Revocation was issued and the final outcome is that the license for this facility has been revoked and is no longer active.
Local Management Entities-Managed Care Organizations (LME-MCOS) will receive a Good Standing Notice to help determine which agencies under the 1915 b/c waiver have received a determination of good standing from the DHSR. If a facility is not in good standing, LME-MCOs can withhold a decision about whether to contract with the specific facility for 90 days. During this 90-day period, LME-MCOs can check back with DHSR to determine if any resolution or changes to the action have occurred prior to making a final decision.
I also found an actual definition in DMA’s Endorsement Policy (from back in April 2011):
(11) “Good Standing – DHHS” means the same as defined in 10A NCAC 22P.0402.
(12) “Good Standing – LME” means the provider has a history of compliance with DMA Clinical Policy specific to service delivery and does not have an open Plan Of Correction (POC) with the LME. A POC must be timely submitted, approved, and implemented before the POC action can be closed. A POC is fully implemented when the POC is being followed and all out of compliance findings have been minimized or eliminated as determined by the LME in a maximum of two follow-up reviews. The POC action is closed when the provider receives the official notification from the LME stating the action is closed.
Ok, so the definitions helped…a little.
So I went to 10A NCAC 22P.0402 (which can be found below, courtesy of Benchmarks):
10A NCAC 22P .0402 GOOD STANDING AND CONFLICTS OF INTEREST
(a) A provider is in good standing with the Division of Medical Assistance when all of the following conditions are met, regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings:
(1) The provider or any entities which share the same Employee Identification Number (EIN) as the provider do not owe any outstanding (more than 30 days past due) accounts receivable to DMA or its designee, including Medicaid overpayments, recoupments, program reimbursements, cost settlements, cost assessments, penalties and interest. A provider that entered into an approved payment plan in accordance with Subchapter 22F and Chapter 108C of the North Carolina General Statutes is considered to be in good standing if the provider has not defaulted on the payment plan;
(2) The provider or any entities which share the same Employee Identification Number (EIN) as the provider have not been terminated, suspended, had its Medicaid payments withheld, or been placed on probation in the previous 12 month period;
(3) The provider or any entities which share the same Employee Identification Number (EIN) as the provider is not undergoing prepayment claims review;
(4) The owner(s) or managing employee(s) of the provider agency were not previously the owners or managing employee(s) of a provider agency which had its participation in the N.C. Medicaid program involuntarily terminated for any reason or owes an outstanding accounts receivable to DMA or its designee, irrespective of whether the provider agency is currently enrolled in the N.C. Medicaid program;
(5) The provider and its owners and managing employee(s) are not listed on the U.S. Health and Human Services Office of Inspector General Exclusion list;
(6) The provider, any entities which share the same Employee Identification Number (EIN) as the provider, or its corporate parent, have no unresolved tax or payroll liabilities owed to the U.S. or North Carolina Department of Revenue;
(7) The provider and its owner(s) or managing employee(s) or any entity sharing the same EIN as the provider have no unresolved payroll liabilities owed to the U.S. or North Carolina Department of Labor. Unresolved payroll liabilities owed to the N.C. Department of Labor is defined as:
(A) The provider or its owner(s) or managing employee(s) or any entity sharing the same EIN as the provider having one or more unpaid judgments for wages owed under Chapter 95, Article 2A, the North Carolina Wage & Hour Act, in which the N.C. Department of Labor or Commissioner of Labor is the Plaintiff; or
(B) If one or more of the owner(s) or managing employee(s) of the entity requesting good standing was the owner or managing employee of any other organization against whom the North Carolina Department of Labor has one or more unpaid judgments for wages owed under Chapter 95, Article 2A, the North Carolina Wage & Hour Act, in which the N.C. Department of Labor or Commissioner of Labor is the Plaintiff.
(8) The provider or any entities which share the same Employee Identification Number (EIN) as the provider have not abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation;
(9) The owner(s) or managing employee(s) of the provider agency were not previously the owners or managing employee(s) of a provider agency which abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation; and
(10) If incorporated or otherwise applicable, the provider has a current Certificate of Existence issued by the N.C. Secretary of State’s Office.
(b) A provider is in good standing with DMH/DD/SAS when all of the following conditions are met, regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings:
(1) Any approved Plan(s) of Correction (POC) pending with the DMH/DD/SAS Accountability Team has been implemented by the provider and the action has been closed by DMH/DD/SAS. A POC is implemented when the POC is being followed and all out of compliance findings have been minimized or eliminated as determined by a maximum of two DMH/DD/SAS follow-up reviews. The POC action is closed when the provider receives the official notification from the DMH/DD/SAS Accountability Team stating the action is closed; and
(2) The provider has not had any endorsement or credentialing to provide an enhanced or child/adolescent residential treatment service involuntarily withdrawn by any Local Management Entity/Managed Care Organization, and upheld by the DMH/DD/SAS Appeals Panel, in the previous 12 month period.
(c) A provider is in good standing with the Division of Health Service Regulation if it meets the requirements for enrollment and licensure set forth in G.S. 122C-23 (e1), regardless of any appeal filed by the provider or any stay of such action entered by the Office of Administrative Hearings.
(d) The owners, operators, and managing employees of a CABHA may not be employed by, or on the Board of, any Local Management Entity (LME), Prepaid Inpatient Health Plan (PIHP), Managed Care Organization (MCO), accreditation agency, or for-profit hospital.
History Note: Authority G.S. 108A-54; 42 U.S.C. 1396a; 42 C.F.R. 431.51; S.L. 2009-451, Section 10.58(d); Temporary Adoption Eff. December 28, 2010.
Ok, after reading all those definitions, I am sure you understand what NOT “in good standing” means, right? I mean, could it get any clearer?
Let’s break it down. For the sake of simplicity, I will use 10A NCAC 22P.0402, for no other reason except, of all the definitions, this administrative code is actually codified. First of all, 10A NCAC 22P.0402 is a bit confusing from the onset, as the code is drafted with conflicting negatives. As in, a provider is “in good standing” if (a) the provider does NOT owe…. So I’ve tried to make the code a bit easier to read.
1. A provider is NOT “in good standing” if the provider owes any outstanding (more than 30 days past due) accounts receivable to DMA or its designee, including Medicaid overpayments, recoupments, program reimbursements, cost settlements, cost assessments, penalties and interest.
Ok, easy enough…if you owe money to DMA, you are not “in good standing.” However, this is what disturbs me: the beginning of 10A NCAC 22P.0402 states regardless of any ongoing appeal or stay. That language means that if you get a Tentative Notice of Overpayment (TNO) stating that you owe $500,000, but you disagree with the findings and appeal, despite the appeal, you are still NOT “in good standing.”
2. A provider is NOT “in good standing” if “the provider ha[s]  been terminated, suspended, had its Medicaid payments withheld, or been placed on probation in the previous 12 month period.”
Again, easy enough to understand. But, again, I am disturbed by the fact that, according to the Code, even if you disagree with the termination or suspension, during any appeal, you will still be on the “naughty” list.
Allow me to get on my soapbox for a moment (as if you have a choice). You can get placed on prepayment review (for whatever reason), which automatically suspends all Medicaid reimbursements, CCME, or whatever 3rd-party entity can conduct a prepayment review improperly (not in actual accordance with DMA policies), and basically, botch your accuracy ratings to create an impossibility of reaching 70%…[Remember, this whole prepayment review process is not appealable according to NCGS 108C-7, which, I believe, is in direct violation of federal law] and the entire time during which your Medicaid reimbursements are suspended erroneously, you are considered NOT “in good standing,” which, we have already determined, has dire consequences.
My problem with the prepayment review process, in general, is that placing a provider on prepayment review with no due process is an obvious infringement on the legal rights of the persons involved. Federal law does not allow a state to simply not allow a provider appeal rights. On the contrary, federal law makes it very clear in numerous places that an appeal process SHOULD be in place. Yet NC does not allow a provider to appeal prepayment review status.
Because NC does not afford appeal rights for prepayment review, but the entire time a provider is on prepayment review the provider receives zero Medicaid reimbursements and the provider is considered not “in good standing,” both of which have drastic consequences for the provider, NC is, in essence, unilaterally deciding to usurp a provider’s property interest and a U.S. citizen’s right to life, liberty, and the pursuit of happiness without due process.
Yet, the entire time during which the provider is getting Constitutional deprivation to the detriment to the provider, the provider is not “in good standing” with DMA.
The process reminds me of the Don Henley song “Dirty Laundry:”
Kick ’em when they’re up
Kick ’em when they’re down
Kick ’em all around
Not to mention the fact that 42 C.F.R. 455.23 states:
(a) Basis for suspension
(1) The State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part; (2) The State Medicaid agency may suspend payments without first notifying the provider of its intention to suspend such payments; (3) A provider may request, and must be granted, administrative review where State law so requires.
Ok, going back to the definition and consequences of not “in good standing.” The third subsection of 10A NCAC 22P.0402 reads:
3. A provider is NOT “in good standing” if “the provider is undergoing prepayment claims review.
4. A provider is NOT “in good standing” if the provider was “involuntarily terminated for any reason or owes an outstanding accounts receivable to DMA or its designee.”
Again, if the provider was involuntarily terminated based on a flawed prepayment review, then see #2. If providers owes money, see #1.
5. A provider is NOT “in good standing” if the provider is NOT listed on the U.S. Health and Human Services Office of Inspector General (OIG) Exclusion list;
OIG has the authority to exclude individuals and entities from Federally funded health care programs. One can only hope that those placed on the exclusion list is rightfully placed on the exclusion list,
6. A provider is NOT “in good standing” if the provider has any unresolved tax or payroll liabilities owed to the U.S. or North Carolina Department of Revenue;
Ok, I get it. The IRS cannot be questioned (despite recent unveilings of misdeeds by the IRS). Death and taxes…
7. A provider is NOT “in good standing” if the provider has any unresolved payroll liabilities owed to the U.S. or North Carolina Department of Labor.
Department of Labor is like the IRS…got it.
8. A provider is NOT “in good standing” if the provider has abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation;
Do not abandon or destroy records….Check.
9. A provider is NOT “in good standing” if the owner(s) or managing employee(s) of the provider agency were previously the owners or managing employee(s) of a provider agency which abandoned or destroyed patient medical records or staff records in violation of federal or state law, rule or regulation; and
Do not own or manage a provider agency that previously abandoned or destroyed records….Check.
(10) A provider is “in good standing” if the provider, incorporated or otherwise applicable, has a current Certificate of Existence issued by the N.C. Secretary of State’s Office.
So, really, I do not take issue with the ENTIRE definition of what is not “in good standing.” Only subsections 1-4.
Like I said, the entire process reminds me of Vince Vaughn (the 3rd party contractor) angrily stamping all the children’s Christmas lists as “Nice.” Except in the case of being not “in good standing,” Vince Vaughn (the 3rd party contractor) is angrily stamping all the lists as “Naughty.”
How many times have you heard, on TV, the phrase “alleged” suspect? Or the phrase “innocent until proven guilty?” Or “presumed innocent?” In Latin, ei incumbit probatio qui dicit, non qui negat means the burden of proof lies with the one who declares, not who denies.
Most people do not know that this fundamental presumption, innocent until proven guilty (or, presumption of innocence), is not found in our Constitution…at least not explicitly. The presumption of innocence is widely held to come from the 5th, 6th and 14th amendments.
However, in common law, the presumption of innocence has been upheld. In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court held that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”
Yes, I understand that, back in 1895, the Supreme Court held the presumption exists in criminal law. Obviously, this is a Medicaid blog and I have averred, and will continue to aver, that my clients are not guilty of any criminal Medicaid fraud. But, even in the civil arena, a similar presumption of innocence exists and, as pertaining to Medicaid audits, is not being followed. The civil audits being conducted on health care providers that accept Medicaid are: post-payment reviews, prepayment reviews, and Recovery Audit Contractor (RAC) audits.
I am defining post-payment reviews as audits that are supposed to be used to assure that payments are made for services delivered to beneficiaries.
I am defining prepayment review as a 6 month audit/review (initially…it can be longer or you can have your Medicaid contract terminated after 6 months) conducted on a provider’s records before reimbursement for services rendered due to “credible allegations of fraud,” “identification of aberrant billing practices, “data analysis,” or “other grounds.”
I am defining a RAC audit as an audit of past claims (up to 3 years ago) by another DMA agent either Public Consulting Group (PCG) or HMS, which determines that, based on its own subjective determination, the providers’ documents are noncompliant and the provider owes the State a monetary amount of $____. The provider receives a Tentative Notice of Overpayment (TNO). It is important to note that these TNO amounts are extrapolated. Which means if the DMA agent finds $1,000 worth of “alleged” overpayments, the agent can extrapolate the amount to be $1 million (This example is merely for the sake of this blog).
Going back to the presumption of innocence in criminal law, as I said, civil law has a similar presumption. It is called the burden of proof. In Latin,”semper necessitas probandi incumbit ei qui agit,” means, in the best translation of what I have found, “the necessity of proof always lies with the person who lays charges.”
Similar to: “The burden lies with the one who declares, not denies?” I think so. In essence, the person that accuses another bears the “burden of proof,” not the accused. But what does that mean? In simple terms, it means that the person who accuses another must prove every element of the crime/tort/wrongdoing in a court of law. If that accuser fails to prove every element, then the accusee (the person accused) does not even have to defend him or herself. Since the burden lies on the accuser, the accuser must prove all elements before the accusee even has to defend him or herself. If the accuser fails, the case is dismissed.
The weight of the “presumption of innocence” and the “burden of proof” resting on the accuser is the heart of our judicial system, both criminal and civil.
So what happens if we take both the presumption and the burden away?
Johnny could tell the NC Bar that Susie, a local lawyer, has committed unethical acts. The NC Bar would immediately either punish Susie, suspend her bar license or terminate her Bar license without the Bar questioning Johnny, Susie, or even give Susie a chance to defend herself.
Tommy could be shopping at his local Harris Teeter, looking for Super Double coupon deals, and a policeman could arrest him for shoplifting without any evidence, except that Ms. Doe, the little old lady that lives next to Tommy and hates his my dog told the policeman that she saw Tommy shoplift.
Or, even worse, a nearby small pet store could call the IRS, contending its competitor down the road has committed tax fraud. IRS, without an investigation, closes the competitor’s shop and forbids any customer to pay it until the full investigation.
How are the above examples any different from these?
You receive a Notice of Prepayment Review. The Review states that “based on credible allegations of fraud” (you do not get to know who accused you), we are suspending all Medicaid reimbursements to you, effective [DATE]. For the next 6 months you have to prove your innocence. You cannot appeal this decision.
Guilty until proven innocent.
Or: You receive a Tentative Notice of Overpayment (TNO) that, based on a review of 10 clients, you owe $500,000 (extrapolated), and the provider has 15 days in which to send the funds. BTW: you can appeal. But the decision has already been made that you owe the money without hearing your defense.
Guilty until proven innocent.
Or, even better, you have been, for months, trying your hardest to keep up with all the over-inclusive records requests from the Carolinas Center of Medical Excellence (CCME), all the final requests, and all the nebulous denials (for reasons other than what was requested in the final requests). You get to a hearing or a mediation and discover that, if you provide 5 service notes, that you will have passed prepayment review. So you tell CCME that you will get the service notes. And you are told that, most likely, the service notes will be considered invalid, because you will, most likely, re-created the notes, since you didn’t provide the notes earlier.
Hmmmm…How does one prove that is service note is NOT fraudulent?
Guilty until proven innocent.
“It is better to save a guilty man than condemn an innocent one.” Voltaire
For those of you who have been on prepayment review or know someone else who has undergone prepayment review, this is for you.
Remember “A MidSummer’s Night Dream,” by William Shakespeare? The comedy of errors? Undergoing a Medicaid audit performed by the Carolinas Center of Medical Excellence (CCME) is much like the comedy of errors in “The MidSummer’s Night Dream.” (MSND) And much like the events in MSND, everyone involved wants to believe that the audit was just a dream/nightmare, but, sadly, this is real life.
For those of you that were not forced to read MSND in school or did not study Shakespeare in college, MSND portrays the events surrounding the marriage of the Duke of Athens, Theseus, and Hippolyta. These include the adventures of four young Athenian lovers and a group of six amateur actors, who are controlled and manipulated by the fairies who inhabit the forest in which most of the play is set. In my humble opinion, the best characters in MSND is Titania and Puck. Titania is the Queen of the fairies, who is estranged from her husband Oberon because Titania will not give her “changeling” to her husband. Oberon wants the “changeling” to use in battle, but Titania will not have it. Puck is the court jester, who creates a magic flower that, if struck on a person with Cupid’s arrow, will make the struck-person fall in love with whomever or whatever is first seen upon awakening.
So Oberon devises a plan to use the magic flower on Titania and, while she is awe-struck with whatever or whomever she loves, Oberon will take the “changeling.” Puck strikes Titania with the flower, using Cupid’s arrow, and she is fast asleep.
Meanwhile a group of people are creating a play. Nick Bottom, whose name Puck decides is another word for “jackass,” is one of the actors. While Bottom is rehearsing, Puck transforms Bottom’s head into a jackass’ head. Bottom has no idea and goes about his rehearsal with an ass head.
Titania wakes up, sees the ass-headed Bottom, and falls in love. While she is in love with the ass-headed Bottom, Oberon takes the changeling.
In CCME’s very own comedy of errors, CCME conducts prepayment reviews for the Division of Medical Assistance (DMA). But in this comedy of errors, the provider (Titania) has its Medicaid contract (changeling) that DMA (Oberon) wants. DMA (Oberon) sends CCME (Puck) to conduct a prepayment review (the magic flower) to get the Medicaid contract. The provider (Titania) becomes so confused and so frustrated with the process that, when she wakes up from the nightmare of prepayment review, she feels like an ass and has no Medicaid contract (changeling).
Here is CCME’s Comedy of Errors:
On August 6, 2012, Jane Doe receives her notice of prepayment review from CCME. Jane also receives CCME’s first requests for documents for Medicaid recipients for certain dates of services (DOS). In actuality, CCME requests hundreds of documents for multiple Medicaid recipients and multiple DOS, and, of course, Jane is given 15 days in which to comply. But, for the sake of this blog and simplicity, we are going to concentrate on one Medicaid recipient and 3 DOS.
On October 10, 2012, Jane receives a request for documents for Medicaid recipient X for DOS 9/20/12, 9/24/12, and 9/27/12.
Jane complies. She sends all the documents required to CCME. Remember, since August, Jane has not received any reimbursements for Medicaid, but Jane is expected to continue to service her clients, pay her staff, pay herself, and pay all overhead for her office without getting paid. I wonder how many other professions would put up with continuing to work without payment. I expect that if I went to the grocery store, put a bunch of food in my cart, and tell the cashier that I am not paying until the state government performed an audit of the quality of its food, that I would be arrested for shoplifting.
In November, Jane receives a “Final Document Request” for Medicaid recipient X and DOS 9/20, 9/24, and 9/27.
The only item CCME requests in the signature log of Jane’s staff for all 3 DOS. So, she sends in the signature log. Implicit in the Final Document Request is that, since CCME only requested a signature log, that CCME had all other necessary and required documents for these DOS.
In December (remember Jane still had not received any Medicaid payments since August), Jane receives a denial for DOS 9/20, 9/24, and 9/27. A denial means Jane does not get paid. According to the denial, DOS 9/20, 9/24, and 9/27 were denied because CCME did not have a treatment plan, signed authorization by the Medicaid recipient, or the service note. What????
1. Jane sent the treatment plan, the signed consent, and the service note back in October.
2. The Final Document Request only asked for the signature log. Why didn’t the Final Request request the treatment plan, signed consent, and service note?
The comedy of errors continue.
In January 2013, CCME sends another Request for Documents. Included in the list of required documents to be sent to CCME are documents for Medicaid recipient X for DOS 9/20, 9/24, and 9/27.
Jane thinks this is odd, but who is she to question the Medicaid auditor? Plus, if she calls CCME to point out the repetitive nature of the audit, she is just told to comply with the audit.
So she does. She re-sends all the required documents again.
A week later, she receives another request for DOS 9/27 for the same Medicaid recipient. She re-re-sends the documents.
In February, she receives denials for DOS 9/20, 9/24, and 9/27. A week later she receives the third denial for DOS 9/27.
A few days later, after calling CCME, getting transferred to 40 different people, and her repeated request for a copy of her compliance accuracy rate, CCME sends her accuracy rate to her. CCME determined that Jane’s accuracy rate is 1.25% (you have to get over 70% for 3 consecutive months to pass prepayment review). DMA terminates her Medicaid contract.
Due to the sequence of events, which I have called the comedy of errors, DMA (Oberon) successfully usurps Jane’s Medicaid contract (the changeling).
I doubt Shakespeare contemplated his “comedy of errors” template would be used in the Medicaid system. And Shakespeare’s version was much funnier.
It is wise to worry about tomorrow today. -Aesop’s Fables, “The Ant and the Grasshopper”
CMS has announced that it will add a 5th Medicare RAC to focus on home health and durable medical equipment (DME). Obviously, with the aid of a 5th RAC, the other RACs will have more free time to focus on other health care providers.
So what does a 5th RAC for Medicare mean for Medicaid in North Carolina. First, many providers that accept Medicare also accept Medicaid. The two programs do have some commonality. Also, NC started out with one RAC. As the federal government increased the number of RACs, NC has slowly increased the number of RACs. We started with Public Consulting Group (PCG) in January 2012 and added HMS October 2012. Then, of course, we have The Carolina Centers for Medical Excellence (CCME), approved through an RFP, performing “Quality Improvement Strategy functions” on the behalf of DMA.
Expected Future for NC Medicaid Providers? More and more and more and more audits.
Remember the ant in the “Ant and the Grasshopper?” If not, here is the fable.
Quick Synopsis: All summer long the grasshopper played while the ant dutifully collected food for the winter, while the grasshopper made fun of him. Once winter came, the grasshopper had no food, and the ants says, “You should have thought of winter then!”
So, providers, be the ant!
A client called me today asking whether there was anything he could do legally against the Division of Medical Assistance (DMA) for terminating his Medicaid contract. The convo went something like this:
“Of course,” I said. “When was your Medicaid contract terminated?”
“As in, January 2012?”
“Why didn’t you call me January 2012?
“Because I was scared of retaliation by DMA.”
What I did NOT say: You were scared of retaliation by DMA when you were wrongly terminated from your Medicaid contract, your company was forced to file bankruptcy and dissolve, you, personally, lost your livelihood, your company, and your self-worth, you were forced to terminate all staff, and all Medicaid recipients were forced to be discharged???? What else could possibly happen? Maybe DMA could’ve kicked your dog.
In all seriousness, most of the time, this fear of retaliation comes way before all the dire and irreparable consequences. Such as a provider refuses to seek legal counsel when the provider is initially placed on prepayment review. Normally the provider thinks, “I can get through this,” “70% is not that hard,” “My documents are compliant,” or “If I get counsel, DMA will just retaliate.”
Most health care providers view their roles in society as helping people. The thought of hiring an attorney is against the providers’ very core being, like rubbing a shark against its grain.
Yet, the fact is that the government is not always right. The government’s contracted companies are not always right. Or even better, the way the employees hired by the contracted companies complete their tasks is similar to playing “phone” in grade school. The employees hired by the contracted companies get their work orders from supervisors hired by contracted companies, who, in turn, get their work orders from someone else hired by the contracted companies, and so on. The hierarchy of order creates a distorted work order.
For example, perhaps the DMA employee who hired the contracted company stated, “Always follow DMA Clinical Policies and federal and state law. When in doubt err on the side of the provider.”
But 20 people down the line, you have Ms. Sweet (fictional) from the Carolinas Center of Medical Excellence (CCME) getting paid $10/hour going to providers’ offices with her standing orders as she understands them as “Always follow DMA policies. When in doubt err on the side of the State.” It’s not Ms. Sweet’s fault that the audit is conducted incorrectly, but, regardless of fault, the audit is conducted incorrectly.
The provider, during the whole process, believes Ms. Sweet when Ms. Sweet states that she knows what she is doing, has hope vested in all the telephone calls made to Program Integrity (PI) in which PI informed the provider that its documents are “great” or “some of the best they’ve seen,” only to open the mailbox a week later with a letter stating the provider’s Medicaid contract had been terminated with a signature from the very person from PI that informed the provider that the documents were “great.” (And of course, the provider took no notes of any telephone calls….But Attorney X, I swear John Doe at PI told me my documents were great!)
I have a saying (that I just made up) In Medicaid, your fear of the unknown coupled with your nonaction will cause all those fears to come true.
In the words of Arthur Ashe: “Fear isn’t an excuse to come to a standstill. It’s the impetus to step up and strike.”
Standing still in the face of Medicaid unknown allows DMA (or whatever contracted company) to decide your fate without hearing your side. If you think DMA or PI (or whatever entity) is listening to your side, then, at the very least, take copious notes of all conversations, write memos to the file regarding conversations, and prepare for the worst.
In my experience fear of DMA does nothing except create negative consequences.
So instead of blissfully following PCG or CCME or HP Enterprises (the Recovery Audit Companies)’s audit requirements and receiving denial after denial (despite your knowledge that the documents were in compliance), don’t wait until your Medciaid contract is terminated. Be proactive. Shake off your fear of retaliation by DMA. Buck up. The only thing to fear, is fear itself. Put on your big boy pants. Stand strong. Don’t get run over. Put on your dancing shoes. Get a stiff upper lip.
(Ok, I’m out of cliches)
What is the “law” of North Carolina Medicaid? I mean, as a health care provider in North Carolina accepting Medicaid, you are expected to know EVERYTHING. You must follow ALL laws/regulations/policies to a tee. Yet you have:
1. The State; i.e., the Division of Medical Assistance (DMA);
2. The Managed Care Organizations (MCOs); i.e.; Alliance Behavioral Health (Alliance), Cardinal Innovations (Cardinal), East Carolina Behavioral Health (East Carolina), or whatever MCO is in charge of your county; not to mention,
3. The Recovery Audit Contractors (RACs); i.e., Carolinas Center of Medical Excellence (CCME), Public Consulting Group (PCG), and HP Enterprises (HP);
all telling you that you are NOT following the (fill in the blank) (a) the law; (b) NC Medicaid rules and regulations; (c) the DMA Clinical Policies; (d) the Implementation Updates; (d) the Basic Medicaid Billing Guide; or (e) all of the above.
Let’s break it down.
First, in the world of Medicaid, because federal dollars are used, the federal law is supreme.
Therefore, if any state, whether North Carolina or Alaska, states that you must abide by “_____” and “_____” is specifically not allowed by federal law, “_____” violates federal law and is not “law.” So many people just assume that if North Carolina states “____”…”____” must be “law.” Forgive me for being the naysayer, but the U.S. federal government is supreme. As in, if North Carolina and the U.S. government got in a fight, NC would be the underdog. Yet, despite the fact, most people read a NC general statute and act as a Stepford Wife….”Yes, sir, it must be true.”
So let’s put the Medicaid laws in a hierarchy, most important to least important:
1. Federal law. Most of the federal Medicaid regulations are found in the Code of Federal Regulations (CFR). (Please understand that this blog is NOT comprehensive; I am merely trying to simplify a system that is not easily simplified. Please contact an attorney if you have any questions (not necessarily me:) ). There is also the Social Security Act.
2. Centers for Medicare and Medicaid Services (CMS). I know, CMS is a federal agency. Why would I denote CMS as the second most important in the genre of Medicaid law? CMS does not make law. CMS must follow federal law. But, in reality, let me assure you, if CMS says its ok, it is ok. So it is important to note CMS.
CMS issues guidance in the form of letters to State Medicaid Directors and letters to State Health Officials. CMS also issues federal regulations. Issue. Not draft. Regardless, CMS is important.
3. North Carolina laws. Here’s where it gets sticky…
People make good money on arguing as to which NC laws/policies/manuals are most important.
In my humble opinion, only promulgated policies are mandatory.
What does promulgated mean?
Definition of PROMULGATE