Category Archives: Harassment

Broken Promises and the NC Waiver: You Do NOT Get Your Choice of Provider!!

“One can talk good and shower down roses, but it’s the receiver that
has to walk through the thorns, and all its false expectations.” –Anthony Liccione

In the 1968 Presidential campaign, Richard Nixon stated that “new leadership will end the war” in Vietnam. Also, in a 1968 interview, Nixon said he had “no magic formula” or “gimmick” for ending the Vietnam War. Then, in his memoirs, Nixon stated he never claimed to have such a plan. This is called a broken election promise.

Sadly, Richard Nixon’s broken election promise was not the first, nor would it be the last. We have become used to politicians making election promises and breaking those same promises which got them elected once they are in office.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

“Read my lips: no new taxes.”

Over the last few years, I have written ad nausem about accountability and proper supervision when it comes to the Managed Care Organizations (MCOs) in North Carolina. The other day, I was reviewing some pertinent federal regulations and came across this:

§ 438.52 Choice of MCOs, PIHPs, PAHPs, and PCCMs.

• General rule. Except as specified in paragraphs (b) and (c) of this section, a State that requires Medicaid beneficiaries to enroll in an MCO, PIHP, PAHP, or PCCM must give those beneficiaries a choice of at least two entities.

Obviously, North Carolina is not adhering to the above-referenced requirement.

Pull up the Waiver. In order to offer Medicaid enrollees only one MCO or other such entity, North Carolina would have had to request a waiver of 42 CFR § 438.52.If you rely on Medicaid for behavioral health care and live in Wake County, you have no choice but to rely on the provider network of only entity, Alliance Behavioral Health (Alliance), to receive services. For example, you do not get to choose between Alliance’s provider network and Eastpointe Behavioral Healthcare’s (Eastpointe) provider network. Staying with the same theoretical hypothesis, if your provider was not anointed with the gift of being in Alliance’s network, then you do not get to stay with your provider.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

Similar to President Barack Obama’s contention quoted above, we made similar promises to the Center for Medicare and Medicaid Services (CMS). Our promises are found within our Waivers. We have two Waivers, one for the developmentally disabled population and one for the mentally ill/substance abuse population. Each Waiver waives certain federal exceptions. However, in lieu of the federal requirements, we make certain promises to CMS. In order to waive 42 CFR § 438.52, we made certain promises to CMS in order to circumvent the necessary provisions of 42 CFR § 438.52.

The State sought a waiver of section 1902(a)(4) of the Act:

“The State seeks a waiver of section 1902(a)(4) of the Act, which requires States to offer a choice of more than one PIHP or PAHP per 42 CFR 438.52. Please describe how the State will ensure this lack of choice of PIHP or PAHP is not detrimental to beneficiaries’ ability to access services.”

Here are our promises:

“Under these circumstances, the State does not believe that making only one plan available in each geographic area of the State will negatively impact recipients’ access to care.”

“The LMEs have decades of experience locating and developing services for consumers with MH/IDD/SAS needs, and over the years, have built strong and collaborative working relationships with the providers of these services.”

“These providers support this initiative and consumers have at least as much choice in individual providers as they had in the non-managed care environment.

“Enrollees will have free choice of providers within the PIHP serving their respective geographic area and may change providers as often as desired. If an individual joins the PIHP and is already established with a provider who is not a member of the network, the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

My two personal favorites among the State’s promises to CMS are: (1) “consumers have at least as much choice in individual providers as they had in the non-managed care environment;” and (2) the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.”

These promises, in reality, are utter horsefeathers.

Over and over my provider clients come to me because one of the MCOs has terminated their Medicaid contract, usually for absolutely no valid reason. Over and over my provider clients tell me that their consumers are devastated by the news that they may lose their provider. I have had consumers contact me to beg me to help the provider. I have had consumers appear in court stating how much they want that particular provider. I have had provider clients cry in my office because their consumers are so upset and regressing because of the news that they may have to find another provider.

Yet, we have promised CMS that consumers have just as much choice in providers than when there was no managed care.

In the words of Dorothy from the Wizard of OZ, “You ought to be ashamed of yourself. Frightening him like that when he came to you for help.”

Similarly, our Medicaid recipients go to their providers for help. They create relationships…trust…bonds. And the MCOs are terminating these very providers, most for invalid and erroneous reasons, and, certainly, without the consideration of our promise to CMS.

But, remember, we are told the PIHPs will make every effort to keep the consumer with the chosen provider…

It would be interesting to do a public records request as to how many providers have been terminated by the MCOs in the last 2 years. Because, even if only 1 provider were terminated in the past 2 years and its consumers still wanted to go to that particular provider, then our State has broken its promise.

Apparently, due to my outspoken positions, DHHS will no longer honor my public records requests, which I think is absolutely preposterous. I am, still, a paying taxpayer last time I checked, which is every pay-day when I only get 60% of my wages. If any of you would submit this public records request, please forward it to me. I would be grateful for the information.

“Black legislators question DHHS as agency touts accomplishments.” Where Are the White Legislators?

A colleague sent the following article to me this morning.  When I first read it, I was thrilled, because I have been beseeching the North Carolina legislators to demand accountability of the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) for the sake of health care providers who accept Medicaid in NC (especially behavioral health care providers).

So few providers accept Medicaid as is.  But with the Medicaid system in such a downward spiral, more providers decide to NOT accept Medicaid every day.  Providers just don’t want to deal with the harassment (not to mention the low reimbursement rates).

According to this News and Observer article below, “black legislators” are demanding accountability from DHHS.

Again, my first response was, thank goodness, at least someone is. But when I talked to my husband about this, he asked, “Why are just the black legislators demanding accountability? Where are the white legislators?  Where are the other ethnicities?”

I agree.

Providers across NC are having their Medicaid contracts erroneously terminated or not renewed.  Providers are going out of business.  Providers are not accepting Medicaid. Medicaid recipients are being denied medically necessary services.  Medicaid recipients are unable to find providers willing to accept Medicaid. Especially in behavioral health.  What will it take for people to care?  A Columbine?

Is this a “black” problem? A “white” problem? A Republican or Democrat problem?

NO!  It is a North Carolina problem.

So, bravo, members of the Legislative Black Caucus!!! Bravo for being a leader.  But I hope your leadership causes all legislators, no matter the color or party-affiliation, to question DHHS.

Here is the article:

Leading black legislators are calling on the head of the Department of Health and Human Services to explain delays in Medicaid payments to providers, problems getting food stamps to the needy, and agency employee raises.

Members of the Legislative Black Caucus said at a news conference Wednesday that they were not receiving timely and accurate information about activities in the department. Their news conference came a few hours after DHHS distributed information touting the department’s accomplishments.

DHHS spokesman Ricky Diaz said the agency provides legislators with regular updates and will continue to do so.

The department has been under scrutiny for the past few months for personnel decisions and problems with expensive computer systems.

The department included on its list of accomplishments the Medicaid payment system called NC Tracks. The system continues to frustrate some providers who have trouble getting paid for patient care.

The lawmakers, all Democrats, sent their letter to Dr. Aldona Wos, the department’s secretary, and Gov. Pat McCrory. The letter was full of questions about NC Tracks and NC FAST, another computer system, which handles food assistance. The letter also asked questions about personnel matters.

The department has a personal services contract with Joe Hauck, a vice president in Wos’ husband’s firm, that has paid Hauck more than $228,000 for about eight months of work as an adviser.

Rep. Garland Pierce, a Scotland County Democrat and president of the Black Caucus, referred to the Hauck contract as one of the “questionable decisions made by her that almost call her integrity into question.”

Wos sent an email to a small group of legislators last week saying Hauck has done important work for the department. Black Caucus members said the email should have been widely distributed.

Legislators also questioned salaries and raises given to new staff and long-time top administrators.

Diaz explained that Wos walked into a department without a leadership team or a succession plan. She had to find top people quickly, he said.

“We have attracted talent to the department to take on these challenges,” Diaz said. Meanwhile, the agency has cut its payroll $23 million, he said.

Lawmakers said they need accurate information from DHHS because health care providers ask them when the agency’s computer problems will be fixed and because low-income people are going hungry.

Sen. Earline Parmon, a Winston-Salem Democrat, said she was on a conference call with Wos and others in the department about two weeks ago, where they offered a “glowing perspective” on the computer systems.

“A few minutes later, I got information that everything they told us was not factual,” Parmon said. “First of all, we need for them to sit with us and admit that there are problems.”

The legislators’ letter included a report from the Triangle Business Journal that said for the week ending Aug. 23, the department missed three of four targets for approved Medicaid claims and had a backlog of more than 90,000 items.

Diaz noted that the system has processed 29 million claims and paid out $1.4 billion.

The department told the public there would be a 60- to 90-day rough patch once NC Track started running, Diaz said.

“Those who are trained come to realize the benefits of it,” he said.

New Mexico Affords No Due Process Based on a PCG Audit!

I am finally back home in North Carolina from beautiful New Mexico. If you ever forget how large America is, fly across country for one day and come back. I think I ate 12 packets of Delta peanuts, and I know I spent over $8 for a hamburger at the Atlanta airport during  a layover (How do they sleep at night charging that much for a hamburger?!).  But…WOW!!…did I learn some eye-opening, Medicaid information.

It is without question that, recently, North Carolina providers that accept Medicaid have undergone serious, over-zealous scrutiny and audits.  Even more so than normal.  And, even more so, behavioral health care providers are undergoing increased scrutiny with the implementation of the Managed Care Organizations (MCOs).

But what I saw in New Mexico that has happened to 15 behavioral health care providers (BHP) in New Mexico, which served 87% of the NM Medicaid recipients, would make any American cringe.

Let me set the stage:

These BHP have been in business for a very long time without issue.  OptumHealth (Optum) is one of the acting MCOs in New Mexico (NM).  Analogous to our Alliance, EastPointe, or East Carolina Behavioral Health.  From my understanding, sometime in January 2013, Optum contacted the NM single state entity that manages Medicaid.  (In NC, the single state entity is the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA); in NM, it is Human Services Department (HSD)).  Optum alleged that 15 BHP were committing abhorrent billing practices.

According to the representative for HSD, HSD decided to contract with Public Consulting Group (PCG) to conduct an independent audit to determine whether Optim’s allegations had merit. So, in Jan or Feb. 2013, HSD contracted with PCG to conduct the independent audit on the 15 BHP.  The PCG Executive Summary of its audit was published in February 2013.

You can find the entire Executive Summary here.

PCG found, in pertinent part:

PCG Exec Summ

I know, hard to read.  Anyway, PCG found over $36 million in overpayments to these 15 providers.

At first blush, one would think, “Holy cow! These providers were overpaid $36 million!”  But hold on…how many providers here in  NC have undergone a PCG audit, only to find that PCG’s audit was erroneous, the extrapolation was inflated, and many noncompliance claims were actually compliant?

Don’t know?

See NC Medicaid Extrapolation Audits: How Does $100 Become $100,000? Check for Clusters!  Or Overinclusive NC Medicaid Recoupments and the Provider “Without Fault” Defense.  Or  NC Medicaid RACs Paid to Find Errors By Providers, No Incentive to Find Errors By DMA. Or The Exaggeration of the Tentative Notice of Overpayments. 

The reality is that most PCG audits (at least the ones I have reviewed) are erroneous.

At the end of the day, the provider does NOT owe the over-inflated amount PCG claims.  So, with the knowledge that many (all that I have seen) of PCG’s audits are erroneous, let me get back to my story.

Based on PCG’s audit, HSD determined that credible allegations of fraud existed and immediately suspended the Medicaid payments for all 15 providers.

But…get this…HSD provided zero appeal rights.  The providers were unable to appeal the State’s decision to suspend the Medicaid payments.  And even worse, PCG and the State refused to give the providers the data compiled by PCG that, supposedly, demonstrated the credible allegations of fraud.  So the providers could not even defend themselves against the audit results because the providers were not allowed to see the audit results.  To this day, the providers do not know what documents PCG audited or what the purported noncompliance is.

This would be similar to me accusing you of embezzling money from my company, but never showing you what proof I have.  Firing you for embezzlement and calling the police.  The police arresting you based on my accusation, but you never get a day in court or even the proof to defend yourself.

In America, really?  Where is the due process?

The Fourteenth Amendment of the U.S. Constitution states, in pertinent part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I mean, come on, due process is a benchmark of our country.  As American as cheeseburgers and the 4th of July…

Yet, these 15 providers in New Mexico received no due process.

During the Tuesday, September 3, 2013, New Mexico behavioral health subcommittee, Larry Heyek, the HSD Deputy General Counsel, cited the authority for HSD’s preliminary investigation as 42 C.F.R. 455.14, which states that:

“If the agency receives a complaint of Medicaid fraud or abuse from any source or identifies any questionable practices, it must conduct a preliminary investigation to determine whether there is sufficient basis to warrant a full investigation.

Interestingly enough, the C.F.R. section preceding 455.14 requires due process.

42 CFR 455.13 states:

The Medicaid agency must have—

(a) Methods and criteria for identifying suspected fraud cases;

(b) Methods for investigating these cases that—

(1) Do not infringe on the legal rights of persons involved; and

(2) Afford due process of law; and

(c) Procedures, developed in cooperation with State legal authorities, for referring suspected fraud cases to law enforcement officials.

(emphasis added).

Yet, the State of New Mexico, based on PCG’s audit, infringed on the legal rights of all 15 providers and no provider was afforded due process of law.

So what happened to these 15 providers due to the PCG audit?  Did HSD attempt a recoupment of the $36 million? Did HSD terminate the 15 providers’ Medicaid contract? A plan of correction?

No.

HSD went to Arizona, hired 3-5 (not sure on the number) large, health care providers to take over the 15 providers’ companies.  Literally, these Arizona companies have gone to the 15 providers’ buildings and have either purchased the buildings or leased the buildings and the 15 providers no longer exist (realistically…legally, the companies still exist).  Staff was fired.  Medicaid recipients were not serviced.

Talk about a hostile takeover!!!

But, here is the kicker….

HSD, supposedly, hired PCG to conduct an independent audit on the 15 providers. Yet, Thomas Aldrich, a manager at PCG, testified at the NM subcommittee’s meeting that Mr. Aldrich (PRIOR to conducting the “independent” audit) flew with Secretary Sidonie Squier, and others, to Arizona to vet health care providers to take over the 15 NM providers.

PRIOR to the audit!!!!

Secretary Squier did not know whether Optum’s allegations of abhorrent billing practices had merit.  Yet, she and Mr. Aldrich flew to Arizona, on NM Medicaid dollars, and sought out Arizona companies that could take over the 15 NM providers.  BEFORE any proof of truly abhorrent billing.

BEFORE the providers could defend themselves.

Imagine the State of North Carolina coming and taking over your company.  Imagine you have no due process.  Imagine you don’t even understand the charges with which the State is charging you.

Now imagine that the scenario is reality…in New Mexico.

Oh, BTW, Thomas Aldrich, the manager at PCG, testified in front of the NM behavioral health committee that he is in charge of two major projects: (1) the New Mexico audit; and (2) the North Carolina audits.

Providers, beware!

Articles Surrounding PCG Audit in New Mexico: Editorial Coming Tonight…(You Won’t Want to Miss It!)

As you know, I traveled to New Mexico earlier this week to testify before the New Mexico subcommittee for behavioral health about Public Consulting Group (PCG) Medicaid audits in North Carolina.  Interestingly, I learned that Thomas Aldrich, a manager at PCG, is in charge of two projects: (1) the New Mexico audit; and (2) the North Carolina audits.  Hmmmmm….and the plot thickens….oh, what a tangled web we weave…

More to come tonight…. (I’m still trying to catch up for the days I was gone).

 

Details of mental health audit emerge at legislative hearing

By James Staley

 

Auditing firm manager says he helped vet Ariz. providers

By Steve Terrell

“Medicare RAC Program A BURDEN,” Providers Tell Senate Committee…Wait Until They See the Medicaid RAC Program!

“Waste neither time nor money, but make the best use of it.” Benjamin Franklin

Recently, the Senate Finance Committee met and discussed the burden of Medicare Recover Audit Contractors (RACs) audits on health care providers.  For a full video of the hearing, click here.  Chairman Baucas began the committee with Benjamin Franklin’s quote.  The implication? RACs are wasting both.

The Senate Finance Committee got it right! The Committee stated that the Medicare RAC program creates an excessive administrative burden on health care providers and results in the denial of legitimate claims. Two representatives from separate health care organizations spoke to the Senate Finance Committee hearing. Bipartisan panel leadership also expresses concern about burdens RACs place on providers. The Medicare RAC program is designed to detect and recover improper Medicare payments.

Chairman Baucas gave an example of immense administrative burden by describing the efforts of Kalispell Regional Hospital, a small regional hospital in Montana, undertaken in response to the Medicare RAC audits.  According to Chairman Baucas, Kalispell has spent over $1 million on RAC compliance, hired 3 additional staff members to exclusively concentrate on RAC audits, and devoted a total of 8 staff members to RACs.  It was estimated that 8600 hours/year of Kalispell’s internal staff is devoted to RAC audits.

Charles Pierce, the Chief Financial and Information Officer of Kalispell, complained of 3 main problems with the RAC audits:

1. Randomness,

2. Overzealousness, and

3. The fact that there is no penalty on RACs for getting the audits wrong.

Other complaints included that the RACs request the same documents over and over, the same issues are audited multiple times, and the same patients were audited multiple times. Another complaint was that the cost of appeal lies on the health care providers, not the RACs.

When the representative spoke on behalf of the RACs, Mr. Rolf, the rep stated that CMS had audited the RACs accuracy and all RACs had accuracy rates over 90%. I thought, maybe he meant CCME, not CMS.

Does this not sound like the RAC program in North Carolina for Medicaid? This Senate Finance Committee meeting may as well have been held in Raleigh, NC state and discussing Medicaid RACs.

How did these particular providers get heard by Washington? Why did Washington listen to these providers’ complaints about Medicare records?

Answer? Generally, these are hospital providers and have both more influence and money than the average individual provider in North Carolina.

In NC, the Medicaid RACs are damaging (so far) behavioral health providers, dentists, and durable medical equipment providers. The RACs are expanding now to audit short-term, inpatient hospital stays, x-rays, long-term care and laboratories.

By federal statute, the RACs are not to place undue burden on providers. Yet, both Medicare and Medicaid providers are undergoing severe administrative burden because of the RACs.

Going back to the Senate Finance Committee, the RAC rep, Mr. Rolf, also seemed to indicate that the Administrative Law Judges (ALJs) did not have the clinical knowledge to review these RAC audits. Mr. Rolf, I respectfully disagree (not that all ALJs do not have the clinical knowledge, but the inference that clinical knowledge is needed).  When we have lawsuits regarding a car wreck, do we have an accident reconstruction expert as the judge?  Plus, these RAC audits have less to do with clinical criteria and more to do with the RAC auditors simply mis-applying the administrative policies. Besides, if we are going to compare clinical knowledge, let’s compare the RAC auditors’ clinical knowledge to that of the actual provider rendering the services.

Two Senators on the Committee touched on two very important issues that I want to highlight:

Senator Enzi stated that he was concerned that the RACs are compensated by contingency fees.  Mr Rolf stated that the RACs are paid equally for overpayments AND underpayments.  I am not sure what particular RAC Mr Rolf was representing, but in NC, our RACs are paid a contingency fee for OVERpayments and a flat fee of $100 for UNDERpayments.

Senator Isakson stated, “There is a fine line between recovering payments that are clearly improper and questioning the judgment call made by a professional at a particular moment of time.” What standard are these auditors using?

Mr Rolf explained that the auditor uses, in part, “Clinical Review Judgment,” basically the medical opinion if the auditor during the review.  Hmmmmmm…so many interesting issues.

I have been asked over and over by providers, do we have recourse? How can we fight back against the Medicaid RAC harassment. Besides running for governor, winning, and conducting a complete overhaul of the Medicaid RAC system, my only suggestion is a lawsuit.  The problem with lawsuits is that lawsuits are expensive.  The Medicaid RACs are causing financial stress on providers already.  For a provider to fund a legal battle against the RACs, that provider must have excess money.

This is one reason we are trying to band a group of health care providers together to fight against the harassment.  But, as of now, we are concentrating on behavioral health care providers.  Interested? Click here to register. Or contact me directly with questions. [Warning: That was a legal advertisement. Please do not click if you are not interested in the lawsuit. Also, feel free to go to any other attorney]

But until we have changes in the Medicaid RAC audits, at least the Senate Finance Committee is investigating Medicare RACs…you got to start somewhere.

What Is the Legal Process for Contesting a Termination of a Medicaid Contract?

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.

NC Medicaid Audits Harassing the Providers: A Great Way to Dissuade Providers from Accepting Medicaid

NC Medicaid

NC Medicaid: CCME’s Comedy of Errors of Prepayment Review

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.

June 1st: Medicaid Behavioral Health Provider Meeting!! Recovering Monetary Damages!!!

This is a solicitation. (This is an effort to thwart any possible assertions that my disclaimer is not enough. I have put my warning.  See also my disclaimer). 

In fact, this is a group of providers meeting together who have been wronged monetarily by the Medicaid system, whether by DMA, the MCOs, and/or the RACs, to discuss future options.  We had a similar group session May 11, 2012, in Raleigh and it was met with great success! Many providers attended.  We were able to share stories.  At the end of the meeting, everyone was excited for the future. So we wanted to host one more meeting in the western portion of the state to invite additional providers.  June 15th will be our cut-off.  If you are interested in this cause, please come to our June 1st meeting!!!

WHEN: 06.01.2013

WHERE: The Cornwell Center at Myers Park Baptist Church, 2001 Selwyn Avenue, Charlotte, NC

WHO: (Any provider that answers “Yes” to the following questions)

  • Have you been placed on Pre-Payment Status and been unable to meet the standards to get off of Pre-payment Status?
  • Have you been told that you are not in good standing with DMA and have been unable to receive assistance restoring your standing?
  • Have you been wrongly denied access to one of the new MCO provider networks?
  • Have you been told that your Medicaid number is being terminated or has been terminated?
  • Have your Medicaid payments been wrongly suspended?
  • Have these actions resulted in loss of income, your business closing, emotional stress, or other negative consequences?
  • Have you received a Tentative Notice of Overpayment stating that you must pay back money to the State?

If so, please join us!

Speaker:

Knicole C. Emanuel

Lunch will be provided so please RSVP to by clicking the REGISTER NOW link.

Questions? Please contact Caitlin Williamson at cwilliamson@williamsmullen.com or 804.420.6267.

Knicole C. Emanuel – 919.981.4031 – kemanuel@williamsmullen.com

Large Number of NC Mental Health Providers No Longer Accepting Medicaid

Since the onslaught of the Medicaid audits on NC health care providers who accept Medicaid, I have been curious as to how many providers have determined that they no longer wanted to accept Medicaid.  Most of my clients have mentioned the fact that after their current issue (whatever that issue is), they were not going to deal with Medicaid anymore.  They are sick of the erroneous audits, the difficulty in dealing with the MCOs, the pile of paperwork they have to provide to state agencies over and over due to post or prepayment review. They are done with Medicaid.

Why should we care whether these providers continue to accept Medicaid?

Let’s not lose sight of the Medicaid recipients.  All these MCOs, RACs and other state agencies are so hell-bent on saving/recouping money, that Medicaid recipients’ mental health care has been lost.  1.5 million North Carolinians rely on Medicaid for their insurance.  Yet, less than 60% of physicians/providers accept Medicaid.  Even less accept Medicaid when you get into specialized services (approximately 30% dentists in NC accept Medicaid).  We need the providers who are willing to accept Medicaid.  Medicaid recipients need providers who are willing to accept Medicaid.

This is not the first time providers have been squeezed out of the Medicaid system.  Remember back in January 2011, approximately 1800 mental health providers were squeezed out of the system with the implementation of CABHA.  All the Medicaid recipients that were seen by providers who were squeezed out, were forced to transfer to other providers.  Again, no apparent thought to the care of the Medicaid recipients.

Now, in 2012 and 2013 and beyond, more mental health care providers are being squeezed out due to Medicaid audits, prepayment reviews, post-payment reviews, and suspensions of Medicaid reimbursements (all of which are grossly incorrectly administered).

So what happens to the 1.5 million Medicaid recipients?  Somehow the Medicaid recipients’ needs are being lost.  MCOs are terminating good provider contracts; RACs are auditing good providers out of business.  The Medicaid recipients are not receiving services.

Until now, I have seen no data on the number of providers that have recently decided to no longer accept Medicaid.

Mecklenburg Psychological Association (MPA) has calculated the decrease in mental health providers in Mecklenburg County by analyzing changes in members insurance participation from 2011/2012 to 2013 ( 2011 & 2012 are combined).

The data do not indicate a reason as to why providers dropped their Medicaid participation.  And remember, this data only apply to Mecklenburg County.  But here is the data:

Insurance Participation Changes of MPA members from 2011/2012 to 2013
 
  2011 & 2012
2013
          Change
Number of Members
180
176
-4
 
 
 
 
None (take no insurance)
34
54
20
Aetna
56
60
4
BC/BS
87
90
3
BC/BS State
58
63
5
BC/BS Fed
50
60
10
CBHA
42
53
11
Cigna
29
30
1
Medcost
36
43
7
Medicare
34
35
1
Medicaid
56
25
-31
Magellan
29
30
1
NC HealthChoice
22
17
-5
TriCare
17
24
7
United Behavioral Health
29
29
0
Value Options
24
27
3
Wellpath
12
14
2
 
 
 
 
Medicaid Changes
 
 
 
No longer accept Medicaid
 
-27
 
Moved – did not renew MPA Membership
 
 
-5
 
Did not renew MPA Membership in 2013
 
 
-1
 
 
New – members who accept Medicaid
 
 
+2
 
 
 
 
 
 
 
 
 
MPA 3013 Non-renewers
15
 
 
Moved
8
 
 
Declined
3
 
 
No response
4
 
 
Deceased
1
 
New Members 2013
13

Wow. In one county in NC, from 2011/2012 to 2013, 31 providers have opted to no longer accept Medicaid.

Makes you wonder where the Medicaid recipients are now that their providers no longer accept Medicaid.  I guess the Medicaid recipients’ needs are still lost.