Category Archives: Outpatient Behavioral Health

United Behavioral Health SLAMMED by Judge for Improperly Denying Behavioral Health Care Services

We have had parity laws between mental and physical health care services on the books for years. Regardless of the black letter law, mental health health care services have been treated with stigma, embarrassment, and of lesser importance than physical health care services. A broken leg is easily proven by an X-Ray; whereas a broken mind is less obvious.

In an unprecedented Decision ripe with scathing remarks against Optum/United Behavioral Health’s (UBH) actions, a Court recently ruled that UBH improperly denied mental health services to insureds and that those improper denials were financially-driven. A slap-on-the-wrist, this Decision was not. More of a public whipping.

In a 106-page opinion, the US District Court, Northern District of California, slammed UBH in a blistering decision finding that UBH purposely and improperly denied behavioral health care benefits to thousands of mentally ill insureds by utilizing overly restrictive guidelines. This is a HUGE win for the mental health community, which often does not receive the parity of services (of physical health) that it is legally is entitled. U.S. Chief Magistrate Judge Joseph Spero spared no political correctness in his mordacious written opinion, which is rarity in today’s vitriolic world.

2019- Spero

The Plaintiffs filed a lawsuit under the Employee Retirement Income Security Act of 1974 (ERISA), saying the insurer denied benefits in violation of the terms of their insurance plans and state law. The Plaintiffs consisted of participants in UBH health care plans and who were denied mental health care services.

Judge Spero found United Behavioral’s guidelines were influenced by financial incentives concerning fully-funded and self-funded ERISA plans:

“While the incentives related to fully insured and self-funded plans are not identical, with respect to both types of plan UBH has a financial interest in keeping benefit expense down … [A]ny resulting shortcomings in its Guideline development process taints its decision-making as to both categories of plan because UBH maintains a uniform set of Guidelines for fully insured and self-funded plans … Instead of insulating its Guideline developers from these financial pressures, UBH has placed representatives of its Finance and Affordability Departments in key roles in the Guidelines development process throughout the class period.”

Surprisingly, this decision came out of California, which is notoriously socially-driven. Attorneys generally avert their eyes when opinions come from the 9th District.

Judge Spero found that UBH violated “generally accepted standards of care” to administer requests for benefits.

The Court found that “many mental health and substance use disorders are long-term and chronic.” It also found that, in questionable instances, the insurance company should err on the caution of placing the patient in a higher level of care. The Court basically cited the old adage – “Better safe than sorry,” which seems a pretty darn good idea when you are talking about mental health. Just ask Ted Bundy.

Even though the Wit Decision involved private pay insurance, the Court repeatedly cited to the Center for Medicare and Medicaid Services’ (CMS) Manual. For example, the Court stated that “the CMS Manual explains, [f]or many . . . psychiatric patients, particularly those with long-term, chronic conditions, control of symptoms and maintenance of a functional level to avoid further deterioration or hospitalization is an acceptable expectation of improvement.” It also quoted ASAM criteria as generally accepted standards, as well as LOCUS, which tells me that the law interprets the CMS Manual, ASAM criteria, and LOCUS as “generally accepted standards,” and not UBH’s or any other private pay insurance’s arbitrary standards. In fact, the Court actually stated that its decision was influenced by the fact that UBH’s adopted many portions of CMS’ Manual, but drafted the language in a more narrow way to ensure more denials of mental health benefits.

The Court emphasized the importance of ongoing care instead of acute care that ceases upon the end of the acute crisis. The denial of ongoing care was categorized as a financial decision. The Court found that UBH’s health care policy “drove members to lower levels of care even when treatment of the member’s overall and/or co-occurring conditions would have been more effective at the higher level of care.”

The Wit decision will impact us in so many ways. For one, if a State Medicaid program limits mental health services beyond what the CMS Manual, ASAM criteria, or LOCUS determines, then providers (and beneficiaries) have a strong legal argument that the State Medicaid criteria do not meet generally accepted standards. Even more importantly, if the State Medicaid policies do NOT limit mental health care services beyond what the CMS Manual, ASAM criteria, and LOCUS defines, but an agent of the State Medicaid Division; i.e, a managed care organization (MCO) deny mental health care services that would be considered appropriate under the generally accepted standards, then, again, both providers and beneficiaries would have strong legal arguments overturning those denials.

I, for one, hope this is a slippery slope…in the right direction.


Managed Care – Eight Reasons Why MCOs Smell Like Pre-Minced Garlic

When it comes to the managed care organizations (MCOs) in NC, something smells rancid, like pre-minced garlic. When I first met my husband, Scott, I cooked with pre-minced garlic that comes in a jar. I figured it was easier than buying fresh garlic and dicing it myself. Scott bought fresh garlic and diced it. Then he asked me to smell the fresh garlic versus the pre-minced garlic. There was no contest. Next to the fresh garlic, the pre-minced garlic smelled rancid. That is the same odor I smell when I read information about the MCOs – pre-minced garlic in a jar.

garlic minced-garlic

In NC, MCOs are charged with managing Medicaid funds for behavioral health care, developmentally disabled, and substance abuse services. When the MCOs were initially created, we had 13. These are geographically situated, so providers and recipients have no choice with which MCO to interact. If you live in Sandhills’ catchment area, then you must go through Sandhills. If you provide services in Cardinal’s catchment area, then you must contract with Cardinal – even though you already have a provider participation agreement with the State of NC to provide Medicaid services in the State of NC.

Over the years, there has been consolidation, and now we have 7 MCOs.


From left to right: Smoky Mountain (Duke blue); Partners Behavioral Health (Wake Forest gold); Cardinal Innovations Healthcare (ECU purple); Sandhills (UNCC green); Alliance Behavioral Healthcare (mint green); Eastpointe (Gap Khaki); and Trillium (highlighter yellow/green).

Recently, Cardinal (ECU purple) and Eastpointe (Gap khaki) announced they will consolidate, pending authorization from the Secretary of DHHS. The 20-county Cardinal will morph into a 32-county, MCO giant.

Here is the source of the rancid, pre-minced, garlic smell (in my opinion):

One – MCOs are not private entities. MCOs are prepaid with our tax dollars. Therefore, unlike Blue Cross Blue Shield, the MCOs must answer to NC taxpayers. The MCOs owe a duty of financial responsibility to taxpayers, just like the state government, cities, and towns.

Two – Cardinal CEO, Richard Topping, is paid $635,000, plus he has a 0 to 30 percent bonus potential which could be roughly another $250,000, plus he has some sort of annuity or long-term package of $412,000 (with our tax dollars).

Three – Cardinal is selling or has sold the 26 properties it owns or owned (with our tax dollars) to lease office space in the NASCAR Plaza office tower in uptown Charlotte for $300 to $400 per square foot plus employee parking (with our tax dollars).

Four – Cardinal charges 8% of public funds for its administrative costs. (Does that include Topping’s salary and bonuses?) How many employees are salaried by Cardinal? (with our tax dollars).

Five – The MCOs are prepaid. Once the MCOs receive the funds, the funds are public funds and subject to fiscal scrutiny. However, the MCOs keep whatever funds that it has at the end of the fiscal year. In other words, the MCOs pocket any money that was NOT used to reimburse a provider for a service rendered to a Medicaid recipient. Cardinal – alone – handles around $2.8 billion in Medicaid funding per year for behavioral health services. The financial incentive for MCOs? Terminate providers and reduce/deny services.

Six – MCOs are terminating providers and limiting access to care. In my law practice, I am constantly defending behavioral health care providers that are terminated from an MCO catchment area without cause or with erroneous cause. For example, an agency was terminated from their MCO because the agency had switched administrative offices without telling the MCO. The agency continued to provide quality services to those in need. But, because of a technicality, not informing the MCO that the agency moved administrative offices, the MCO terminated the contract. Which,in turn, puts more money in the MCO’s pocket; one less provider to pay.  Is a change of address really a material breach of a contract? Regardless – it is an excuse.

Seven – Medicaid recipients are not receiving medically necessary services. Either the catchment areas do not have enough providers, the MCOs are denying and reducing medically necessary services, or both. Cardinal cut 11 of its state-funded services. Parents of disabled, adult children write to me, complaining that their services from their MCO have been slashed for no reason….But the MCOs are saving NC money!

Eight – The MCOs ended 2015 with a collective $842 million in the bank. Wonder how much money the MCOs have now…(with our tax dollars).

Rancid, I say. Rancid!

Smoke and Mirrors: ECBH Increasing Medicaid Rates (But Decreasing the Amount of Services Authorized?)

I am always amazed at magicians.  David Copperfield, David Blaine…

I once saw David Copperfield live.  I was convinced prior to the show that I would be able to determine how he performed the illusions. I just KNEW that I would see the strings or the trapdoor. But I did not. I was thoroughly amazed. Despite the fact that I still know that magic is not real, I was still awe-struck and entertained.  Realistically, magic is just smoke and mirrors. But, dag  on, those smoke and mirrors do a fantastic job.  At times, while watching a magic show, I find myself actually believing in magic. That is the power of smoke and mirrors.

Smoke and mirrors do not only appear in magic.  Many politicians are expert wielders of smoke and mirrors.  So to are many salesmen. And, apparently, East Carolina Behavioral Health (ECBH).

An article was published on NC Health News’ website yesterday. “Medicaid LME Updates: Cumberland/Alliance to Merge, Good News from ECBH.” Article is good. Information is good. But the ECBH news, I find “smoky.”

Click here for the article by Taylor Sisk

According to the article, “ECBH will increase the rates for psychological testing by 10 percent, personal care services by 16 percent, peer support by 7 percent and facility-based crisis and detoxification services to cover the full cost of the service.”

On the surface, the increase in rates that ECBH is implementing sounds great, right? In my head, I thought, “Wow! ECBH is doing some great marketing. Providers will want to work with ECBH…”

The problem is that the “surface level” or rate increase “on its face” is never the whole story. (Which is why ECBH’s rate increase is such an amazing use of smoke and mirrors. Most people will never see past the smoke).

The MCOs are prepaid. If the MCOs’ do NOT contract with providers and NOT authorize services, profits rise. 

But would an MCO REALLY deny medically necessary services, theoretically, to INCREASE profit?? You can decide.

However, one of my clients hired me because ECBH denied 100% of continuing authorizations and new referrals for ACTT services in Pitt County.


What are ACTT services?

DMA Clinical Policy 8A defines ACTT services:

The Assertive Community Treatment Team [ACTT] is a service provided by an interdisciplinary team that ensures service availability 24 hours a day, 7 days per week and is prepared to carry out a full range of treatment functions wherever and whenever needed. A service beneficiary is referred to the Assertive Community Treatment Team service when it has been determined that his or her needs are so pervasive or unpredictable that they cannot be met effectively by any other combination of available community services. Typically this service should be targeted to the 10% of MHDDSA service beneficiaries who have serious and persistent mental illness or co-occurring disorders, dual and triply diagnosed and the most complex and expensive treatment needs.” 

ACTT services are reserved for the extremely mentally ill.  These are the people who need 24-hour services; recipients receiving ACTT services are people who must receive the ACTT services to function.  Yet, ECBH denied 100% of my client’s new referrals and continuing authorizations.  One such denial was a Medicaid recipient who had been arrested 6 times since April 2012.  After the ACTT denial, the Medicaid recipient was again incarcerated, which is where the recipient is now.  Another denial resulted in the Medicaid recipient being hospitalized for suicidal ideation.

For recipients already receiving ACTT services, ECBH has forced my client to “step-down” the recipients to outpatient behavioral therapy (“OBT”). Of the Medicaid recipients that ECBH has forced Petitioner to “step-down,” three recipients were immediately referred back to ACTT when the OBT providers stated that the recipients suffered too high acuity of mental health illness to manage in OBT setting.  Two recipients were incarnated after discharge; the jail employees are complaining of psychiatric problems that are difficult to manage. 

Back in May 2013, the local news channel in Greenville, North Carolina, aired “9 On Your Side Mental Health Town Hall exposes problems, brings you answers.”  The news channel coverage demonstrates the possibility of the widespread breath of ECBH denials, in general. Maybe ECBH’s denials of medically necessary services is not limited to my client’s personal situation.

Regardless of the breadth of ECBH’s denials of medically necessary services, back in May 2013, ECBH was getting some bad marketing from the local news. So what does ECBH do? Raise reimbursement rates.

If, in fact, ECBH is denying many medically necessary Medicaid services in order to raise profit, then isn’t ECBH’s rate increase just smoke and mirrors?

“If Freud Accepted Medicaid…” (Thoughts From an ACSW, LCSW)

Mr. Geoffrey Zeger, ACSW, LCSW wrote the following humorous, yet true segment:

I haven’t written to the ‘NC Mental Hope’ listserv for a while but recently I’ve been thinking…. 

If Freud accepted NC Medicaid and he cured ‘The Wofman’ but did not draft a Treatment Plan in the proper format he would have had to pay back all the money for the treatment sessions (Click here for info. on ‘The Wolfman’ —>

 If Dr. Emil Kraepelin accepted NC Medicaid and not only classified and described Schizophrenia for the first time but was on the verge of curing it, but he did not submit a Service Order for more authorized sessions, he would have had to stop providing treatment (Click here for info on Dr. Kraepelin —>

 If Dr. Marsha Linehan  accepted NC Medicaid and not only developed DBT but helped a client stop cutting on themselves on a daily basis and move to a place of emotional regulation and stability, but she did not write the start time of her sessions on her progress notes she would have been put on a pre-payment review and all of her payments delayed (Click here for info. on DBT —>

 …I am glad that the Giants on whose shoulders we stand on did not accept NC Medicaid.

 I recall a lesson from a long time ago in my Policy and Administration class in the School of Social Work (funny how some things stick, huh?).  The Professor discussed how a frequent trap in the administration of social services is the erosion of goals through the focus on process.  The goal and process become confused.  Looking at the macro, this is happening with NC Medicaid.  The process (documentation, authorizations, Alpha and Provider Connect, LOCUS/CALOCUS, etc., etc.) should be in support of the goal (client care) and not be a hindrance to it.  Unfortunately, what is happening is the process has BECOME the goal – providers are more focused on crossing t’s and dotting i’s, jumping through hoops, making sure that documentation is ‘audit proof,’ and hoping that auditors will be merciful than on providing the best clinical service available.  This deflection of effort diminishes client care.

 Now, trying to think like a NC Legislator or a DMA employee, perhaps the theory is that if the lane is restricted enough and there are enough regulations and dis-incentives (payment consequences) put in place then the providers will be structured to the point of providing appropriate care.  Well, we all know how this is working out (

 In my private practice I found that these regulations caused the ’80-20 Rule’ ( – 20 percent of my case load were NC Medicaid clients and the regulations were taking 80 percent of my time.  The paperwork, service orders, authorizations, use of the LME/MCO computer based system, implementation reviews, audits, financial pay-backs for paper work technicalities and plans of correction became time, resource and cost prohibitive.    

 I have done my best to persevere through the user unfriendly labyrinth but recently stopped accepting NC Medicaid clients at my private practice.  This occurred with mixed feelings — less stress and an ability to re focus on client care for my other clients but a sense of guilt. Realistically, I know that for the sake of my business and family this had to be done but there is that little voice in my head saying “…good social workers help the impoverished and socioeconomically challenged.”  I still contract at agencies that accept Medicaid and IPRS and keep my fingers crossed that we will be able to weather the pressure.  

 What is sad is when I get a call from a potential client with NC Medicaid at my private practice and I tell them I am no longer accepting Medicaid – they invariably say “…I can’t find anyone who takes Medicaid!!! The therapist I used to see stopped taking it and now I don’t know what to do!!! I’ve been calling all over…”  I have to refer them to the intake line at the LME/MCO and hope they are referred to an agency that will not shut down in 3 months.    

 I wonder how many providers will be left standing as this continues.  I also wonder how some colleagues of mine will fair in the future – those clinicians who lost jobs as their agencies closed and went to what they thought was the safe haven of a job with the LME/MCO’s….will they still have jobs in 2 years when McCrory’s Medicaid Reform condenses mental health and physical health and reduces 10 LME/MCO’s to 3 CCE’s.  

 The saga continues…

 Geoffrey Zeger, ACSW, LCSW

Status Update on NC Medicaid Audits

Health care providers that accept Medicaid in North Carolina are under fire.  Since North Carolina is one of 7 states undergoing massive, federally-Medicaid audits, all providers, from speech therapists to dentists to psychiatrists to hospitals to nursing homes to radiologists are ALL under fire.  Yet, many providers who are reading this are thinking, “I haven’t been audited yet. Maybe I’m safe.”  My answer? Maybe your particular service has not yet been audited.  Most providers have not yet undergone the intense scrutiny of today’s Medicaid audits by a third-party contractor, but it is only because the state has yet to get to that specific health care service.  Believe me, these audits have only just begun…

To date, the state (by and through its contracted companies) is knee-deep in audits for behavioral health providers.  Also, dentists, speech therapist (if you don’t group speech therapists in with behavioral health), and durable medical equipment providers have just been added to audit list.

According to the February 2013 NC Medicaid Bulletin, starting at the end of February/beginning of March, HMS (our 2nd RAC vendor) will perform post-pay audits on:

  • inpatient hospital claims;
  • outpatient hospital claims;
  • long-term care claims;
  • laboratory claims;
  • x-ray claims; and
  • specialized outpatient therapy claims.

As it is only May, the full consequences of these audits that were only started at the end of February are not yet known.

From the actual beginning of a post-payment audit until the Tentative Notice of Overpayment, a few months pass.  Concurrently, the Carolinas Center of Medical Excellence (CCME) is conducting prepayment reviews.

From experience, once placed on prepayment review, a health care provider will try (to no avail) to remove itself from prepayment review for 6 months before having its Medicaid contract terminated.  Usually, at the point of termination, I get called.

So, I figure, with the time period lapse for both post and prepayment audits, I have until August-ish until the providers that provide the above-referenced services need me.

I guess my message is:

Do not think for one second that because your particular type of health care service has not been audited yet, that your particular type of service is safe. The audits are coming. It’s just a matter of when.

Medicaid Provider Tip: How to Read a Claim Audit Finding

Claim Audit Findings (CAF).  It even sounds scary. Not to mention, if you receive a CAF, it means that you have been audited by the State or an agent thereof (which, in it of itself, is a scary process). So seeing a CAF does not make you happy. But it helps if you understand what the CAF is and, more importantly, is NOT telling you.

Here is what a CAF looks like:


This particular CAF was drafted more recently (the review was conducted March 2012, but this CAF was not drafted until much later).  I have seen earlier CAFs handwritten.

For the sake of this example, we are reviewing a CAF for 16 units billed for Community Support Team. Regardless of the type of health care service, the CAF will be on an identical form or very similar.

At the top of the CAF, you have all the information you need to pull the particular file to compare your file to the CAF.  The Medicaid recipient’s name, date of birth, and Medicaid number is listed.  Most importantly, the date of service (DOS) is listed.  No matter how many times you provided services to this recipient, the DOS on the CAF is the only DOS that matters.  However, word of caution, most of the time, you will receive 2-10 CAFs for one particular client for 2-10 DOS.  All the DOS matter in that case.

Moving to the middle section of the CAF, you can see on the left side, the CAF reads either “administrative” or “clinical.”  The middle of the middle (nice explanation, huh?) has a question.  Then the right side (of the middle section) has “Not Met/No,” or “Yes/Met,” etc.

I will go through each type of administrative or clinical topic.  The bottom of the CAF supposedly details more specifics about each topic.  Although I will show you how unhelpful the explanations are. In fact, the only helpful part of the bottom section is the fact that it shows you which year’s Clinical Policy the auditor used (as in which date. Since the policies have been revised so many times, the auditor frequently uses the incorrect policy.  It is important to have the policy in front of you that was in place for the particular DOS).

Ok, the topics on the CAF (the middle section of the CAF).  The topics are divided between administrative and clinical.  Administrative issues are (seemingly) objective; are the documents in the file? Clinical issues are more subjective, such as was there a demonstration of medical necessity and were the service notes adequately written (apparently these auditors believe that every provider should also be an ametuer novelist).

Let’s go through the administrative topics.

A1: Authorizations

“Is there an authorization in place covering this date of service?”  This is just a matter of did the Medicaid auditor review an authorization in the file at the time he or she reviewed the file.  Even if you had a valid authorization in place at the DOS, if  the auditor did not see the authorization in the file ate the time of the audit, you will receive a “Not Met” for A1.  

(“Not met” means you failed that particular facet of the audit and you will need to repay the amount received for the service.)

Another reason I have seen “Not Met” under A1 is for services that do not require authorizations.  The auditors apparently cannot figure out which services require authorizations and which do not.

A2: Service Orders:

“Is there a valid service order for the service billed?”  Again, the auditor looks in the file for a service order for the code billed.   The “Not Mets” I have seen for service orders range from the signature on the service order being illegible; therefore, the credentials of the signator could not be assessed to the service order ordering one CPT code, while the service was a different CPT code.  

A3: Person-Centered Plan (PCP)

“Is there a valid PCP in place for the date of service billed?”  Now, obviously, PCPs are used in Community  Support Team (CST), but not in all areas of health care, not even in all areas of behavioral health.  Nonetheless, I have seen CAFs require a PCP, even when a PCP is not required for particular service.  I’ve also seen CAFs that read “treatment plan/PCP,” but the CAF will not inform you for which (a treatment plan or PCP) the auditor has been told to look. Many “Not Mets” are because of the confusion on the part of the auditors as to what documentation is actually required for a service.

A4: Staffing Requirements:

“Does the team meet staffing requirements per the service definition?”  For A4, the auditors will actually look beyond the file (usually). As the onset of an audit you will be required to provide the auditor with all your staff’s credentials.  Beware: Many, many times I have a “Not Met” for A4 because the auditor could not read the signature; therefore, the auditor could not determine which staff member rendered services, much less whether the staff member met all required credentials.  But the auditor will not ask you whose signature is on the document; apparently, there is some rule somewhere in the world according to Medicaid auditors that signatures must be legible, because I sure as heck have not seen that rule.

A5: Staff Qualifications:

“Is there documentation that the staff is qualified to provide the service billed?”  This is a tad different from A4.  In A4, the governing criteria is the DMA Clinical Policy (whichever is applicable to the services you provide).  A5 is more specific.  If the staff member is providing substance abuse prevention, does the staff have the credentials showing that he or she is certified to provide substance abuse services.  The qualifications required depends on the service provided.

A6:Health Care Public Registry

“Did the provider agency complete a Health Care Public Registry check on any unlicensed staff providing the service billed prior to the date of service?”  Just as it reads, A6 requires the provider agency to complete a Health Care Public Registry for any unlicensed staff.  Here, the auditor will look for a piece of paper proving that the Registry check was conducted prior to the date of service.  But like most other topics, the auditor will not simply ask you whether you have completed a Registry check if the Registry check is not easily found, such as filed in the individual staff member’s file, not multiple copies filed with every single recipient who receives services from that staff member.  You will just receive a “Not Met.”

A7: Disclosure of Criminal Convictions

“Did the provider agency require disclosure of criminal convictions by staff person(s) who provided the service?”  A7 is so poorly drafted.  My high school English teacher would be appalled.  This is a classic example of a sentence in the English language not doing its job (which is to communicate).  Does the provider have to show the auditor that the provider has a written rule/policy that all staff members are required to disclose any criminal convictions? Or is the auditor actually looking for a criminal background check of all staff? A7 gives no guidance.  If you go down to A7 in the bottom section (that we will talk about later) you see that no further guidance is given.  So, you will just have to hold your breath in anticipation as to the answer until I get to the bottom section explanations.

C8: Entrance Criteria

“Does the Comprehensive Clinical Assessment support entrance criteria, per the service definition?”  C8 is the topic at which my blood begins to boil. Essentially, C8 is asking whether the Medicaid recipient meets entrance criteria for the service provided.  Mind you, providers (unless prior authorization is not required for the specific service) cannot bill for a service unless there is prior authorization from DMA (or, more specifically, the contracted company that was reviewing prior authorization for the state…it was ValueOptions for behavioral health).  So these auditors are reviewing services for recipients for which the provider already received prior authorization (meaning entrance criteria was met) from DMA or its acting agent and now, another contracted company, sometimes years later, is saying, “Hold on there. I know you already received prior authorization for this service, but in my subjective opinion, I disagree. I don’t think medical  necessity was met; entrance criteria was not met.” I don’t know how many due process or fundamental fairness rules C8 violates, but, so far, C8 is still part of the Medicaid audits.

C9: Individualized PCP

“Is the PCP individualized for the person?” Remember, above I wrote that sometimes, for different services, C9 will read treatment plan/PCP.  Regardless, if prior authorization is required for the service, the PCP was already reviewed before prior authorization was given.  See argument for C8.

C10: Crisis Plan

“Does the Crisis Plan include the required elements per the PCP Instruction Manual?” Again, C10 may change depending on the service.  But, regardless, if prior authorization is required for the service, the PCP, including the Crisis Plan, was already reviewed before prior authorization was given.  See argument for C8.

C11: Timeframe of Signature

“Is the documentation signed by the person who provided the service within the designated timeframe?”  This may be one of my favorites. Because you do not necessarily submit service notes for reimbursement daily, there are times that you submit multiple claims on one day.  Maybe you have an electronic service note system that you draft all service notes then sign them all as you submit them. (This is only one example of many of the nonsensical results of C11). The auditors will claim that you must sign all service notes on the DOS.  You will be told your service note is out of compliance if the dates of signature and service do not match. But my question is out of compliance with what? With the utopian laws of providing health care services? Certainly not out of compliance with the DMA clinical policy (that I have seen) or the Basic Medicaid Billing Guide.  Nothing that I have seen states that providers must sign the service notes on the date the service was provided.  The policies state the service notes must have the DOS and must be signed. Period.

C12: Billed Units

“Does the documentation support the units billed?”  For this topic, the auditors are looking at the service note and trying to locate a “time in” and “time out.”  Or a duration period noted on the service note.  The issue with C12 that I have seen is that some CPT codes, not all, but some, have, in the very definition, the duration specified. For example, in Outpatient Behavioral Health services, 90834 (now) denotes 38-52 minutes of psychotherapy. Before January 2013, 90804 denoted 25-30 minutes of individualized therapy.  If the definition of the CPT code defines the duration, why is there an additional requirement to physically write the time in and out on the service note? Apparently, the auditors know of a reason.

C13: Goals on PCP

“Does the service note relate to the goals in the PCP?” Again, C13 may change depending on the service.  But, regardless, C 13 is asking whether the treatment plan or the medical objectives for the patient are germane to the activities on the service note.  This is such a subjective determination.  However, I’ve had auditors deem no germaneness when a goal for the recipient is improving relationships with non-family members, and the service note denotes that the therapeutic treatment was role-playing as if the therapist was a non-family member. Hmm. Germane?

C14: Assessment of Progress

“Does the service note reflect assessment of progress toward goals?”  C14 is similar to C13 as to its subjectiveness.  Here, I have had auditors determine “Not Met” for C14 when the service note stated that the recipient is improving, but scared of consequences of result. Hmmm. Assessed progress?

C15: Individualized Interventions

“Are the interventions in the service note individualized per person and reflective of the service definition?”  What? How are services for a specific individual not “individualized?” What the auditors are not telling you in C15 is that the auditors are looking for service notes that appear to “cut and pasted” from prior service notes with minimal changes.  Apparently the auditors believe that if you provide one hour of therapy to a Medicaid recipients that that specific goal was met and that at next therapy session you can move on to the next goal.  Apparently, you do not have to work on one goal more than once.

A16: Unit Conformity

“Do the units documented match the units paid?” This is an administrative topic, but basically, mirrors C12.

Ok, there are the topics and my 2 cents worth on them.

Going to the bottom section of the CAF, I believe I discussed most of the issues in the bottom while I was describing the middle section. 

But for example, in bottom section C7 (of which you have so calmly awaited the explanation), “no employee information” submitted means (in auditor language) the auditor did not see a criminal background check prior to DOS.  wouldn’t it be so much easier if the explanations found in the bottom section actually stated what document was actually needed?

Or, for example, in bottom section A5, the auditor may not necessarily be saying that no staff information was provided.  A5 may actually mean that either (1) the auditor could not read the staff’s signature; and, therefore, the auditor could not determine whether the qualifications had been submitted; or (2) the service note was not in the file at the time the auditor reviewed the file, so the auditor cannot determine which staff member conducted the service.  But it is up to you to decipher.

Or, for example, in bottom section C8, when the auditor writes that no documentation submitted to show entrance criteria was met, the auditor is actually saying that, at the time the auditor reviewed the file, the file did not contain either an assessment or initial intake or referral or something to show the diagnoses of the patient.  However, it is interesting to note that during the audit of the file, if a provider tries to supplement the file with documents for which he or she knows the auditor is looking, the auditor refuses, saying that he or she can only review the file.  But C8 can mean that, in the subjective opinion of the auditor, that the documentation provided does not meet entrance criteria, or it can mean that the auditor does not have a full understanding of the entrance criteria, or it can mean that a documents proving entrance criteria was accidentally misdated.  C8 can mean a plethora of different scenarios; none of which are explained in the “explanation” of C8.

So, there you go, Claim Audit Findings 101.  Surely, you have no questions; it’s so easy!!

Regardless, appeal, appeal, appeal.

You Have Been Placed on PrePayment Review: Now What?

You receive a certified correspondence. You sign for it. You open it.  The letter states that your company (that provides health care services to Medicaid recipients) has been placed on prepayment review.

As if this letter is not scary enough, the letter also cites all this North Carolina statutory laws and alludes to the federal regulations.  The letter talks about “credible allegations of fraud” and “aberrant billing practices” and, even scarier, states that “a provider may not appeal or otherwise contest a decision…to be placed on prepayment review.”

What a second!! So the NC state government is unilaterally placing you on prepayment review, which automatically suspends your Medicaid reimbursements for an indefinite period of time, potentially causing you monetary damages, your staff monetary damages, and your recipients to potentially lose their provider, and this unilateral decision is not appealable???

Not so fast!! (Although the legality of prepayment reviews and the lack of due process will need to be reserved for another blog).

First of all, what the heck is prepayment review?

Prepayment review is phrase denoting the Department of Health and Human Services (DHHS), Division of Medicaid (DMA)’s decision to place a health care provider on a kind of “heightened awareness list.”  So instead of just billing Medicaid services through your Managed Care Organization (MCO) or DMA, you have to send documents to another outside contracted companies, Recovery Audit Contrators (RACs), which, in turn, will decide whether your documentation is, at least, 70% compliant for 3 consecutive months.

So you know what a prepayment review is (at least in theory), so WHAT do you do?

Let’s start with what NOT to do:

  • Do not fool yourself into thinking that your documents are good enough to pass the 70%.  I am in no way saying that your documents are not compliant.  In fact, most likely, your documents are compliant.  I am merely stating that from prior experience, the RACs make passing the audits impossible. You probably will not believe me until you witness it firsthand, but the RACs will tell you what documentation is lacking, you will send the document to the RAC, and your claim will be denied for a completely different reason (but equally as ridiculous).
  • Do not live in the river called De-Nile and refuse to believe that your Medicaid contract will be terminated. It will, most likely, be terminated in the next 6 months.
  • Do not believe that DMA/Program Integrity (PI)/the RACs/the individual auditors are actually put in place to help you. While you hear, “Oh, your documents are in great shape,” you will receive denials after denials until your Medicaid contract is terminated.
  • Do not think that the harder you work to comply, the more likely you will comply and be placed off prepayment review.
  • Do not ignore the prepayment review status.
  • Do not think prepayment review is “no big deal.”
  • Do not think there is nothing you can do.

What to do:

  • Get a Medicaid attorney (as usual, I must say that you should get an attorney, not necessarily me, just any lawyer knowledgeable about Medicaid. I am not trying to advocate for myself; I am merely trying to help providers). The quicker you begin to contest the prepayment review status the better.
  • In a very detailed-oriented way, review your documents as if you were an objective outsider.  Remember, the RACs are objective (arguably) outsiders.
  • At the same as the above-mentioned action, review the pertinent DMA Clinical Policy that is germane to your practice (i.e., Outpatient Behavioral Therapy (OBT) follows Policy 8C), review the Basic Medicaid Billing Guide, and review the Medicaid contract you signed. Being knowledgeable is key.
  • Keep detailed notes on every communication and document you send to the RACs.
  • Keep a chart of all Medicaid recipients that are being reviewed, including the dates of service (DOS).
  • Stay organized.  If, for example, the RAC asks for an authorization for Patient X in an initial document request, you send it, then in a final request asks for the service note, you send it, then denies the service because of lack of patient’s consent for treatment, you need to be able to show the timeline of events.
  • Understand that you are not the only one.
  • Stay strong.

Remember, this is your business, your life, how you pay the bills and how you contribute to the community. It is important enough to not back down. As of today, prepayment reviews, according to North Carolina general statutes are allowed without appeal.

But, in the future, with enough providers challenging these statutes as being in violation of federal law, due process will be required.

Audits, Audits, Everywhere, But Not Much Fraud In Sight…

Now that we have 3 Recovery Audit Companies (RACs) going strong in North Carolina, expect exponentially more Medicaid audits. And across the spectrum of types of health care providers.  Already RACs are auditing behavioral health, dental providers (although this is only the beginning of dental audits), and neurological centers.

But, as reported in the January 2013 Medicaid bulletin, inpatient hospital medical audits and outpatient lab services should be undergoing RAC audits now. So this means that Duke, UNC, Rex Health Care, and LabCorp are, most likely, busy gathering documents for audits.

If a small dental provider or health care provider receives a Tentative Notice of Overpayment for $400,000-2 million, I can only imagine the staggering number that the RACs are claiming the hospitals and laboratory companies owe.  My guess is, since the RACs receive a percentage from the recoupments, that Duke’s bill may be in the billions.

Then, if these RAC audits of behavioral health and dental practices are indicative of the quality of RAC audits on the hospitals, 99% of the claimed overpayments will be incorrect. I guess the RACs hope that the hospitals are so big that they will just hand over the money.  But, instead, I foresee a fight.

The good news? I will have so much material that I can continue to blog for years to come.

The bad news? With all these audits and legal fees, let’s hope the Medicaid recipients do not become lost.  Let’s hope that too many health care providers do NOT go out of business due to these audits.  Let’s hope too many health care providers do NOT decide to give up accepting Medicaid. Because if too many providers leave the Medicaid arena, recipients will have nowhere to go.

Already, I’ve heard so many providers tell me, “Once I get through this mess (meaning appealing the audit results) I will never take Medicaid again.” While I understand the reason for providers saying this, it saddens me to think of the quality health care providers that Medicaid is losing because of ineptness of RACs.

Perhaps the RACs have just thrown the nets extra-wide hoping to undercover some fraud, but, so far in my practice, there has been zero under-covering of fraud, but lots and lots of paperwork nitpicking.

All This Talk About Provider Medicaid Fraud…What about MCO Fraud?

Everyday in the Medicaid world, we hear accusations or stories about health care providers committing fraud. But what about MCO fraud? Who or what is monitoring the MCOs for potential fraud? And what would MCO fraud look like?

First, what is an MCO?

Managed Care Organizations (MCOs) are the healthcare organizations that manage state’s Medicaid, including the finance, implementation of health services, and health care provider eligibility in the Medicaid contract.

MCO fraud looks different from provider fraud. Provider Medicaid fraud could be providing excessive services, double-billing for services, etc.  MCO fraud could be the implementation of cost-savings procedures that lead to underutilization or denial of medically necessary services.

Specific examples of MCO fraud: (These examples are all make-believe. Any similarity to an example and real-life is unintentional):

  • MCO denies medically necessary ACTT services and discharged Medicaid recipient is sent to Outpatient Behavioral Therapy as a “step-down.” Recipient does not receive necessary services and commits crimes, ultimately leading to incarceration.
  • MCO denies enrollment of a health care provider who provides residential services to teenagers with severe mental illnesses, some with violent tendencies.  Provider (because of lack of Medicaid contract) is no longer allowed to care for the residential teenagers.  Residential facility closes and teenagers are on the streets.
  • MCO denies so many health care providers in a certain county that Medicaid recipients have multi-month waiting periods before receiving services.  During the multi-month wait, another Connecticut slaughter occurs, but in North Carolina.

These are serious repercussions.  These serious repercussions (although the exact results would be unknown) are being sent into action by MCOs’ underutilization of quality health care providers and denials of medically necessary services.

Why would an MCO commit fraud? (Which is what I am calling underutilization of providers and denials of medically necessary services)?

MCOs are Prepaid Inpatient Health Plan entities (PIHPs). Meaning that each fiscal year, the MCOs are given a lump sum from the Department of Health and Human Services (DHHS), in a combination of federal and state money.  That lump sum is used throughout the year to fund all Medicaid services (the services managed by the MCOs) for all Medicaid recipients in that particular MCO’s jurisdiction, sometimes 10+ counties.

It is in the best interest of an MCO, as a business in the business to be profitable, to refuse to enroll providers and deny services in order to save expenses.

Furthermore, MCO contribute a percentage to a “risk account” throughout the contract period.  When the contract is fulfilled and DHHS determines that the MCO fulfilled the agreement, the MCO  is entitled to keep all the money in the risk account.

So, in essence, I agree that we, as a state, need to discover, and then prosecute, provider Medicaid fraud.  Medicaid fraud costs taxpayers an exhorbitant amount of money.

But, my question is, who is discovering the MCO fraud? MCO fraud may not cost taxpayers money directly, but, even worse, MCO fraud causes health care providers to NOT be able to provide medically necessary services to those most in need.  MCO fraud causes Medicaid recipients to NOT receive needed services.  Which fraud is worse?

DMA Says, “It Wasn’t Me.”

Call up DMA. Ask about an issue. I bet DMA will pass the buck.  I call this the “It’s not me” disease.  Apparently, DMA has been infected.

Today I had a reconsideration review at the Division of Medical Assistance (DMA). This was a case in which DMA claimed my client was overpaid with Medicaid funds because of alleged documentation errors. My client was audited May of last year, never heard any results, then almost a year later, received a Tentative Notice of Overpayment stating that he owed DMA X dollars.  He came to me and we appealed the Notice.

For the most part, today’s reconsideration review was similar to past reconsideration reviews:

  • DMA cited my client for not having prior authorization when prior authorization was not required under DMA Clinical Policy 8C (Prior to January 1, 2012, the first 26 visits with a child were unmanaged in Outpatient Behavioral Therapy (OBT), thus not requiring prior authorization);
  • DMA cited my client for inappropriate referrals when the Medicaid recipient was an adult (Adults can self-refer for OBT);
  • DMA cited my client for failure to produce assessments when assessments were not required;

All that was normal. As usual, my client was cited for reasons inconsistent with Medicaid policy and regulations.

DMA’s inability to audit a health care provider in accordance to Medicaid policy and regulations was not why today’s reconsideration review was odd.

No, today was odd because the person DMA sent to represent DMA was a woman who did not conduct the audit, had never reviewed the audit findings until sitting in the reconsideration review, was completely unprepared and was, obviously, confused by the entire process of a reconsideration review.

DMA’s rep (we will call her Jane) introduced herself to me as a “DMA Hearing Specialist.” What? What is that?? I asked whether this was a new position, to which she responded, “Yes,” and informed me that she was only hired by DMA last August. I asked whether there were other “DMA Hearing Specialists.”  She told me there were 3 others. This was news to me.  I had never heard of a “DMA Hearing Specialist.”  But in my head, I thought, “Good. A specialist. At least she will know what is going on.”

Wrong again.

We went to the first Medicaid recipient at issue. (This was a recipient who was not my client’s client.  For reasons not important here, it was mis-billed, and my client had already returned the money to the appropriate provider). Jane, however, had not been informed of this detail.  First she stated that my client had provided all the required documents because under the section, “Reasons for Denial,” “ABCDEFG” was marked (meaning every reason provided was marked.) So the hearing officer asked whether this meant there was no issue for this recipient. Jane said “I guess so,” and “Maybe.”

Once the hearing officer asked again, Jane finally said, “Oh, never mind, the ABCDEFG means that no documents were provided. We needed everything.”

Once we cleared up that ambiguity, we informed the hearing officer that this recipient was not a client of my clients and that the money had been returned.

Now, it is important to note that at the beginning of the reconsideration review, Jane produced a summary of all claims findings from my client’s audit, as well as, a detailed explanation of all denials. Shocked, I requested copies (because my client had received zero information as to what the document deficiencies were prior to the reconsideration review).

In the summary (that we had not received until the date of the reconsideration review), on page 3, first paragraph, there was a detailed description about the auditor speaking to my client about the mis-billing, his subsequent return of the Medicaid funds, and the auditor’s review of financial information proving the fact that my client had returned the funds.  That audit occurred May 2012.  Now, today, we sat in the reconsideration review (March 2013) and my client was being cited for the very same issue that he proved in May 2012.  In other words, despite my client’s explaining the situation to the auditor and providing financial records to prove that he returned the funds, he STILL sat there today and had to explain it again and had been cited for the very reason he already proved.

When I asked Jane why we were still discussing an issue that had been resolved almost a year ago, she told that she did not conduct the audit.  She was just told to come to this reconsideration review and she was not to blame. (It was someone else at DMA). Why was that “someone else” not attending the reconsideration review?

The “it wasn’t me” theme is WAY too prevalent at DMA. When someone complains about a Managed Care Organization (MCO), DMA says, “It wasn’t me.” When an audit is incorrectly conducted DMA says, “It wasn’t me; it was the company we hired.”

“It wasn’t me” gets us nowhere.

DMA is in charge of North Carolina Medicaid.  Yet every time DMA is questioned about Medicaid issues,, “It wasn’t THEM.” Who was it?

If “someone” makes a decision at DMA, that “someone” should attend the reconsideration review to defend that “someone’s” action. “It’s not me” means “I understand that you’ve been accused of wrongdoing; I understand that your company is financially in stress because of “someone’s” determination that you have committed wrongdoing, I understand that your Medicaid recipients may not have a health care provider because of “someone’s”determination, but DMA decided that that “someone” does not need to be accountable. Instead DMA will send “another someone” with zero information, hat way, the “someone” to blame is NOT DMA.”

It wasn’t me.