Category Archives: Clinical Policy 4A

How EPSDT Allows Medicaid Recipients Under the Age of 21 To Receive More Services Than Covered By NC State Plan

EPSDT. What in the heck is EPSDT?

EPSDT is an acronym for the “Early and Periodic Screening, Diagnosis, and Treatment (EPSDT).” It only applies to Medicaid beneficiaries under the age of 21. As in, if you are 21, EPSDT does not apply to you. The point of EPSDT is to allow beneficiaries under the age of 21 to receive medically necessary services not normally allowed by the NC Medicaid State Plan. (These beneficiaries under the age of 21 I will call “children” for the sake of this blog, despite 18+ being a legal adult).

The definition of each part of the acronym is below:

Early:……. Assessing and identifying problems early
Periodic:…… Checking children’s health at periodic, age-appropriate intervals
Screening:…. Providing physical, mental, developmental, dental, hearing, vision, and other screening tests to detect potential problems
Diagnostic:…. Performing diagnostic tests to follow-up when a risk is identified, and
Treatment:…. Control, correct or reduce health problems found.

Federal Medicaid law at 42 U.S.C.§ 1396d(r) [1905(r) of the Social Security Act] requires state Medicaid programs to provide EPSDT for beneficiaries under 21 years of age. Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by screening,” whether or not the service is covered under the North Carolina State Medicaid Plan.

The services covered under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. § 1396d (a) [1905(a) of the Social Security Act].

For example, EPSDT will not cover, nor is it required to cover, purely cosmetic or experimental treatments.

Again, EPSDT allows for exceptions to Medicaid policies for beneficiaries under the age of 21. For example, if the DMA clinical policy for dental procedures does not cover a certain procedure, if the dentist determines that the procedure is medically necessary for a beneficiary under the age of 21, then the dentist can request prior approval under EPSDT simply by filling out a “non-covered services form” along with the other supporting documentation to establish medical necessity. More likely than not, the “non-covered procedure” would be approved.

Medical necessity is an interesting term. Medical necessity is not defined by statute. The American Medical Association (AMA) defines medical necessity as:

“Health care services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, treating or rehabilitating an illness, injury, disease or its associated symptoms, impairments or functional limitations in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site and duration; and (3) not primarily for the convenience of the patient, physician, or other health care provider.”

But, legally, the courts have construed medical necessity broadly when it comes to EPSDT. As in, generally speaking, if a doctor will testify that a procedure or service is medically necessary, then, generally speaking, a judge will accept the medical necessity of the procedure or service.

It seems as though I am degrading the intelligence of the judges that take the face value testimony of the doctors. But I am not.

Judges, like I, are not doctors. We do not have the benefit of a medical education. I say benefit because any education is a benefit, in my opinion.

It would be difficult for anyone who is not a doctor to disagree with the testimony of a physician testifying to medical necessity. I mean, unless the person stayed in a Holiday Inn Express the night before. (I know…bad joke).

Some courts, however, have ruled that the decision as to whether a procedure is medically necessary must be a joint effort by the state and the treating physician. Obviously, for courts that follow the “joint decision for medical necessity” holdings, less procedures would be allowed under EPSDT because, more likely than not, the state will disagree with a treating physician (I say this only from my own experience representing the state when the state disagreed with EPSDT treatments despite the treating physician testifying that the procedure was medically necessary).

For example, the 11th Circuit has held that both the state and the treating physician have a role in determining whether a procedure or treatment is medically necessary to correct or ameliorate a medical condition. The 11th circuit disagreed with the Northern District of Georgia’s determination that the state MUST provide the amount of services which the treating physician dreamed necessary. Moore v. Medows, No. 08-13926, 2009 WL 1099133 (11th Cir. Apr. 24, 2009).

Regardless, in practice, EPSDT is interpreted broadly. A long, long time ago, I worked at the Attorneys’ Generals office. A mother requested hyperbaric oxygen therapy (HBOT) for her autistic children (and I had to oppose her request because that was my job).

For those of you who do not know what HBOT is (I sure didn’t know what HBOT is prior to this particular case)…

“Hyperbaric Oxygen Therapy (HBOT) is the use of high pressure oxygen as a drug to treat basic pathophysiologic processes and their diseases. HBOT has acute and chronic drug effects. Acutely, HBOT has been proven to be the most powerful inhibitor of reperfusion injury, which is the injury that occurs to tissue deprived of blood supply when blood flow is resumed. This is thought to be one of the primary mechanisms of hyperbaric oxygen therapy effects in acute global ischemia, anoxia, and coma. Chronically, HBOT acts as a signal inducer of DNA to effect trophic (growth) tissue changes.” See http://www.hbot.com/hbot.

I went and saw a hyperbaric oxygen treatment chamber in preparation of my case. It’s pretty intimidating. It is a large chamber made of thick metal. It looks like you could get inside, have it submerged under the ocean, and explore. It appears similar to a submarine. And, interestingly, it is most often used for divers who get the bends.

It is highly controversial as to whether HBOT cures, remedies or ameliorates autistic symptoms. I had two experts testifying that HBOT was experimental, and, therefore, not covered by Medicaid, even with EPSDT. (Remember, back then I was at the AG’s office).

Yet, despite the fact that HBOT was still controversial as to whether it ameliorates the symptoms of autism, the Administrative Law Judge (ALJ) used the EPSDT doctrine to rule that the mother’s children could receive HBOT and Medicaid must pay for the services.

That is the power of EPSDT. HBOT was clearly not covered by Medicaid for the purpose of ameliorating symptoms of autism. But, for the children named in the Petition who were under 21, Medicaid paid nonetheless.

HBOT allows beneficiaries under the age of 21 to receive medically necessary services that would not normally be allowed under the North Carolina Medicaid State Plan.

Importantly, EPSDT provides for private rights of action under 1983. At least all the federal circuit court of appeals have held such.

Oh, and, BTW, NCTracks will soon also be in charge of EPSDT determinations.

Medicaid Providers: Know What the “Way Back Machine” Is? Perhaps, You Should!

This blog pertains to all Medicaid providers regardless the state and regardless the Medicaid service provided.

Heard of the “Way Back Machine?”  Perhaps, you should have!!!

Scenario: 

You are a Medicaid provider, and you get a Tentative Notice of Overpayment (TNO) based on a Medicaid post-payment review by Public Consulting Group (PCG) or HMS in the extrapolated amount of $800,000 based on a sample size of 100 dates of service (DOS) and multiplied out to some extrapolation universe. You look at the extrapolation data and determine tha you were not even paid $800,000 during the time frame PCG determined was the universe. Or you say…What???…My documents complied with policy!

What do you do?

Sound like a horrible SAT question? Or sound like reality?

Hopefully you answered the former, but if you answered the latter, read on…

You’ve read my blogs before and understand the importance of appealing PCG or HMS’ extrapolated audit.  But you do not have the financial means to hire an attorney.  Or you honestly believe that if the Department of Health and Human Services (DHHS) reviewed your documents that its employees would also agree that PCG or HMS was wrong.  Or you, personally, want to self-audit to determine the veracity of the audit.  Or for whatever reason, you want to know whether PCG or HMS was correct for your own well-being. 

How do you self-audit….the audit?

This may be one of the best “tips” I have given… (sorry for tooting my own horn, but, seriously, this blog can be helpful! I had a client that pointed out he/she had no idea about this “tip.”)

PCG and HMS conduct post-payment reviews.  This means that PCG and HMS are looking at 1-2-3-year-old medical records.

Think about how quickly Medicaid changes.  Now think about the number of times in which the DMA Clinical Policy applicable to your practice has been revised in the last few years.

When I say DMA Clinical Policy, I mean, if you provide Outpatient Behavioral Therapy, Policy 8C is applicable.  If you provide dental services to Medicaid recipients, then Policy 4A is applicable.  If you provide durable medical equipment (DME) to Medicaid providers, then Policy 5A is applicable.  For a full list of the NC Medicaid policies, please click here.

The DMA Clinical Policies change significantly throughout the years.  For example, DMA Clinical Policy 8A, revised January 1, 2009, allowed Community Support for adults and children.  Yet Policy 8A, revised August 1, 2013, does not even allow Community Support (obviously Community Support was disallowed prior to August 2, 2013, but I am making a point).  Also, now we have 16 unmanaged outpatient behavioral therapy visits for children, whereas a couple of years ago we had 26 unmanaged visits.

The point is that when PCG or HMS audits your particular service, the auditors are not always experts in your particular service, nor experts in your particular service’s Clinical Coverage Policy.  See my blog on Dental Audits Gone Awry.  In this blog I show the required (or lack thereof) education/experience to become a PCG auditor.

Therefore, it is imperative that you have access to the applicable Clinical Coverage Policy applicable for the DOS audited.

But, if you google 2009 clinical policy for NC Medicaid dental services, you can’t find it.

So how are you supposed to get access to these old policies that are being used (or mistakenly NOT being used) in Medicaid audits for the older DOS?

It is called: The Way Back Machine.

I know, cheesy!  But I did not name it.

The “Way Back Machine” website looks like this:

Way Back Machine

The beauty of the “Way Back Machine” is that you can go to any current website.  Copy the internet address.  Paste that internet address into the “Way Back Machine” where you see “Way Back Machine” and a white box appears in which to type the website address. Type in the address, and hit the button “Take Me Back.” VOILA…time travel!!!!

Small Tip: I have found that if I use the internet address for the specific policy for which I am researching, I am less successful than if I use the general DMA Policy address found here.  Once you get to the appropriate year on DMA’s general policy website, you can click on the specific policy in which you are interested.

Using the “Way Back Machine,” you can go to the DMA Clinical Policy (for whatever Medicaid service) applicable years ago.

You should never need to go more than 3 years back, as Recovery Audit Contractors (RACs) without permission by DHHS, cannot audit DOS more than three years ago.

But, you need to review the Clinical Policy for [fill-in-the-blank] Medicaid service 2 years ago? No problem! Use the “Way Back Machine” and travel back in time.

Wouldn’t it be great if we could travel back in time “for real?” Prior to RACS…prior to PCG…prior to HMS….? We need a “Way Back Machine” for Medicaid providers (and me) “for real!”

Medicaid Dental Post-Payment Audits Gone Awry: A Hypothetical Example

A dental practice was audited by Public Consultant Group (PCG). Here is their story: (Insert a Dum, Dum, Dum).

For those of you who do not know who PCG is: CONGRATULATIONS!

But there are those of us who know that PCG is a hired contractor by the state or the Division of Medical Assistance (DMA) to investigate providers who accept Medicaid in North Carolina to detect clinically suspect behaviors or administrative billing patterns, which could indicate potentially abusive or fraudulent activities.

Whew!! Sounds serious!!

I am SURE that, for such a serious mission, PCG employs only the most-highly competent employees who are super, duper knowledgeable about the esoteric idiosyncrasies of the Medicaid system, the appropriate policy(ies),and  federal and state rules and regulations, right?

Hmmmm…out of sheer curiosity I googled employment opportunities at PCG.  I found a position in Albany, NY for an “Instructional Trainer.”  Duties include:

“Coaches agencies and providers on programs and information to ensure compliance with departmental, state, and federal laws, rules, regulations, guidelines, processes, and procedures.”

Dag on!!! Shut the front door! This person will be coaching agencies and providers, ensuring compliance with laws, rules, regulations, guidelines….SURELY this person must be a lawyer, right????

So then I looked at the “required experience:”

Required Experience:

  • BS degree in a related field preferred
  • Experience in development and delivery of instructional materials or training
  • Experience in health & human services is desirable
  • Experience working in a team-oriented, collaborative environment
  • Advanced Knowledge of Curriculum Design and Training Delivery
  • Advanced Knowledge of Office Skills such as Word Processing and Data Collection
  • Advanced Knowledge of the Principles for Providing Customer Service

A BS degree is a related field preferred??

First, what is a related field for regulations and compliance? Political Science?

Folks, I double-majored in English and Political Science and I can promise you that after graduating from NCSU with a double major in English and “Poli Sci” I was NOWHERE competent enough to handle a Medicaid audit of a provider.  I may have been able to draft a darn good essay or quote the U.S. Senators and their bipartisan affiliations, but a Medicaid expert, I was not.  And this position was for an “Instructional Trainer!” A TRAINER!! As in, one who trains.  Implicit in the job title is “One who has been trained” or “One who has the knowledge to train.”

I give this background to set the stage:

The Characters:

On one side: Dentists who have been managing a successful dental practice for years and years after attending college and dental school.

And on the other side:  A college Political Science major who is able to recite all the states and its capitols and all the governors of each state (This is not to say that all employees at PCG are inept…or not qualified for  their particular position.  I actually know a couple of PCG employees of whom I think highly (this is not directed toward you, my fine two friends).  This is merely a generalization and stage-setting for the all-too-common errors I see committed by the “entry-level” auditors).

The stage:

A well-established dental practice.  All the walls are wooden (painted white) and there are 200+ handprints on the lobby wall with all the little pediatric customers’ names on them.  There is a waiting room with toys and books.

The script:

Act 1: A few entry-level PCG auditors knock on the door of the dental practice (They don’t actually knock, because it is a dental practice, not a home, but you get the drift).

Receptionist: How may we help you?

Auditor 1: We are here to conduct a Medicaid post-payment audit.

Receptionist: Huh? (With an open, gape-jawed expression)

Auditor 2: A post-payment Medicaid audit.

Auditor 1: We need to see all the documents of your Medicaid clients from February 2011 through May 2011.

Receptionist: Huh?

All right, folks, I am sure you get the point.  So the audit occurs and a few months later, the dental practice receives a Tentative Notice of Overpayment for $300,000.00.  The #1 main reason PCG found noncompliance was:

“The attending provider number billed does not match the individual dentist who rendered the service and does not support service billed.  Citation: Clinical Coverage Policy No. 4A: January 1, 2011 Attachment A.1 Instructions for filing a Dental Claim 53-56…”

Now, mind you, in the DMA Clinical Policy No. 4A, revised March 1, 2013, the policy states “Enter the attending provider’s NPI for the individual dentist rendering service. (This number must correspond to the signature in field 53.)”

In 2013, it is quite clear that the attending provider and the provider rendering the services must be identical.  But this audit was a post-payment review, meaning that the documents audited were from 2011, not 2013.

In 2011, the DMA Clinical Policy No. 4A, revised January 1, 2011, states “Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”

 See the difference? (One of these things is not  like the others).

Must v. Should

Must equals no other choice.  Should denotes guidance; simply a suggestion.

However, think of this, if you were a college graduate who majored in Political Science and were now auditing Medicaid providers, would you think to distinguish the difference between “should” and “must?”