Category Archives: Podiatry
The Chevron Deference Rule: Pay Attention, Health Care Providers! CMS May Lose Control!
It has been nearly 40 years since the Supreme Court indicated in Chevron v. Natural Resources Defense Council that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. Earlier this year, the Supreme Court heard arguments abolishing the Chevron deference rule. It that good or bad? Well, let’s hash it out. Regardless your opinion, the Supreme Court will decide the Chevron deference rule’s legality this summer. And, listening to the oral arguments earlier this year, it seems that a majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it.
The Chevron deference rule is a critical aspect of administrative law that often remains in the shadows of legal discourse but holds immense implications for the functioning of our government: the Chevron deference rule. This rule, born out of a Supreme Court case in 1984, has been a cornerstone of administrative law, dictating how courts should defer to federal agencies’ interpretations of ambiguous statutes. But as with any legal doctrine, it invites debate, scrutiny, and calls for reform.
In simple terms, the Chevron deference rule mandates that if a statute is ambiguous, courts should defer to the reasonable interpretation of that statute made by the agency tasked with implementing it, unless that interpretation is unreasonable. In essence, it grants federal agencies significant leeway in interpreting laws passed by Congress. This deference has profound effects on the balance of power between the branches of government. For example: CMS is an agency that is allowed deference in its rules that are not laws. See the importance? Without the Chevron deference rule, ALJs would not be bound by CMS’ rules that are not laws. For example, CMS is of the mindsight that extrapolation is legal, allowed, and upheld. The ALJs are bound to agree. No Chevron deference rule? The ALJs can make up their own minds.
The rationale behind Chevron deference is to recognize the expertise of administrative agencies in their respective fields. These agencies possess specialized knowledge and experience that enable them to navigate complex regulatory landscapes. By allowing them deference in interpreting ambiguous statutes, the rule seeks to promote consistency, efficiency, and expertise in policymaking and implementation.
However, as with any legal doctrine, the Chevron deference rule is not without its critics. Some argue that it unduly concentrates power in the hands of unelected bureaucrats, diminishing the role of the judiciary in interpreting the law. Moreover, it raises concerns about accountability and democratic legitimacy, as it can shield agency actions from robust judicial review.
Furthermore, the Chevron deference rule has become a subject of political contention, particularly in recent years. Critics argue that it enables regulatory overreach by agencies, allowing them to enact policies that may exceed the scope of their statutory authority. This concern has led to calls for judicial restraint and a reevaluation of the deference granted to administrative agencies.
So, should the Chevron deference rule stay in place? This question elicits a spectrum of opinions and requires careful consideration. On one hand, the rule promotes efficiency and expertise in governance, recognizing the specialized knowledge of administrative agencies. On the other hand, it raises concerns about accountability, democratic legitimacy, and the balance of power between the branches of government.
In navigating this complex terrain, we must strike a balance that upholds the principles of good governance, accountability, and the rule of law. Perhaps the solution lies not in abolishing the Chevron deference rule altogether but in refining it to address its shortcomings. This could involve clarifying the conditions under which deference is appropriate, ensuring robust judicial oversight, and promoting transparency and accountability in administrative decision-making.
The Chevron deference rule stands as a pivotal element of administrative law, shaping the relationship between the branches of government and influencing the course of public policy. Its effects are profound and far-reaching, touching upon fundamental principles of governance and democracy. As we navigate the complexities of modern governance, let us engage in thoughtful dialogue and debate to ensure that our legal framework reflects the values of accountability, transparency, and the rule of law.
Take Medicare or Medicaid? Why You Should Have an Attorney on Retainer
They say that lightning never strikes the same place twice, but tell that to my colleague Bill. Bill has been struck by lightning twice and has lived to tell the story. Granted, he was not physically standing in the same place that he was struck the first time as when he was hit by lightning the second time – so lightning technically didn’t hit the same place twice. But it did strike the same person twice. Maybe Bill is just extremely unlucky, or maybe Bill is extremely lucky because he lived through the incidents.
An intense shock can severely impair most of the body’s vital functions. Cardiac arrest is common. Yet Bill lived. Twice.
No one ever thinks they will get struck by lightning. But it happens. According to the National Weather Service, so far this year, lightning strikes have killed at least 20 people in the US, and that does not even take into consideration the people who were just injured, like my pal Bill.
A lightning strike is a massive electrical discharge between the atmosphere and an earth-bound object. A lightning bolt can heat the surrounding air to 50,000 degrees Fahrenheit—that’s five times hotter than the sun—and can contain up to 300kV of energy.
Yet most people do survive, in part because lightning rarely passes through the body.
Instead, a “flashover” occurs, meaning that the lightning zips over the body, traveling via ultra-conductive sweat (and often rainwater), which provides an external voltage pathway around the body. When people do die from a lightning strike, it is usually due to an electrical discharge-induced hear attack. A body hit by lightning will show various signs of trauma.
Like a gunshot, a lightning strike causes both an exit and entrance wound, marking where the current both entered and left the victim. Lichtenberg scarring, which outlines ruptured blood vessels, frequently covers the body in odd, almost beautiful, spiderweb patterns.
Surprisingly enough, many lightning strike survivors do not remember being struck. Instead, the only evidence of the traumatic event is burnt, displaced clothing and marks along the body.
For instance, many lightning strike survivors report memory issues, trouble with concentration and severe headaches, all of which last decades after the initial strike.
Due to the rarity of lightning strike cases, less time and resources have been devoted to better understanding how these strikes impact long-term brain function. An unpublished study by medical doctor Mary Ann Cooper found that there were “significant differences in brain activity between lightning-strike victims and healthy people as they performed mental-aptitude tests.”
Aside from impacting long-term brain function, lightning strikes are also known to blow out eardrums, prompting constant muscle twitches and moderate to severe nerve damage. Overall, the effects of a lightning strike may range from a slight inconvenience to a debilitating, lifelong struggle. In the case of my colleague, you would never be able to tell mind looking at him that he has been hit by lightning twice.
Why is this – extensive – discussion about lightning strikes relevant? – Or is it not?
If you are a health care provider and accept Medicare or Medicaid, the risk of an audit far exceeds your chances of getting struck by lightning. In FY 2016, CMS continued its use of the Affordable Care Act authority to suspend Medicare payments to providers during an investigation of a credible allegation of fraud. CMS also has authority to suspend Medicare payments if reliable information of an overpayment exists. During FY 2016, there were 508 payment suspensions that were active at some point during the fiscal year. Of the 508 payment suspensions, 291 new payment suspensions were imposed during FY 2016.
Medicare and Medicaid audits far exceed lightning strikes. Yet, providers believe in their heart of hearts that and on an audit (or an audit with bad results) will never happen to them, which causes providers to not engage in attorney until after the lightning strikes. Then it’s too late, and you have Lichtenberg scarring across your arm.
There is scene in Breaking Bad in which Saul, the attorney, stops a person from talking. He says, “Give me a dollar. Don’t tell me anything until you give me a dollar. Once money is exchanged, we will have attorney-client privilege.” What Saul was saying is that the exchange of money catalyzed the duty for Saul to keep all conversation confidential.
This was a low-point of legal-fiction television. It made great drama with zero accuracy.
The question is why should you have an attorney on retainer?
The obvious response is that you can have confidential conversations with said attorney at your beck and call. The honest truth is that you do not have to have an attorney on retainer in order for your conversations to be confidential. But is smart to do so, and I will tell you why.
If you call me and I have never represented you and you ask me a legal question, our conversation is legally protected, even if you hire a different attorney.
No – the reason to have an attorney on retainer is to be able to consult him or her with legal questions on a daily basis, and, especially of there is an ongoing audit. Most of my clients do not contact me when they receive the document request. They think, “Oh, this is no big deal. I will give my records to [state] or [federal] – [and/or its contractors] government and they will determine that my [Medicare] or [Medicaid] records are amazing. In fact the [state] or [federal] government my even ask me to educate other providers on what pristine records should look like. I got this. Easy, peasy, lemon-squeezey.” They contact me when they get an accusation of an alleged overpayment of $5 million. Lichtenberg scarring has already occurred.
The smartest clients contact me prior to receiving an alleged overpayment of $12 million or an accusation of fraud. They contact me the moment they receive a notice of an audit or a request for documents…before ever submitting documents to the government.
Because, regardless the type of provider, be it dentist, behavioral counseling, podiatrist, chiropractor, or hospital, understand that every communication with a government auditor and/or contractor is admissible in court – if the communication does not go through an attorney. When the [state/federal] auditor asks to see a record and you say, “Let me get it from my off-site storage facility” – BAM – HIPAA violation. When the state/federal auditor asks to see a record and you say, “Here it is,” and fail to keep a copy for yourself, there can be discrepancy in the future as to what you actually provided. And you are in a “he said she said” battle – never good.
On the other hand, if you have an attorney on retainer, you can ask any question you need, you can get any advice you desire, and it’s all confidential. It is as though you have Siri in your back pocket. It’s the 411 for legal information. It’s an ATM for legal advice. AND it is all confidential.
Next time you think to yourself, “Self, I will ace any Medicaid or Medicare audit. I don’t need counsel. I can talk to the auditors myself without an attorney. I got this.”
Think again. [Don’t, necessarily, call Saul, but call someone.] Because, like lightning strike victims, you may not even remember the audit. Until you are scarred.
“The Times They Are a-Changin’”: A Look at Possible Ramifications on Medicaid by Senate Bill 744
I think of Bob Dylan’s raspy voice singing:
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.
In 1933, Franklin D. Roosevelt took the presidency during a time of severe poverty. The Great Depression, which would last until the late 1930s or early 1940s, cast shadows and doubt over the future of America. People were starving. Unemployment and homelessness were at an all-time high.
FDR’s first 100 days in office were monumental. In fact, FDR’s first 100 days in office changed America forever. With bold legislation and a myriad of executive orders, he instituted the New Deal. The New Deal created government jobs for the homeless, banking reform, and emergency relief to states and cities. During those 100 days of lawmaking, Congress granted every major request Roosevelt asked. This is an example of what I call blending of the separation of powers. In a time of great national need, Congress took an expansive view of the president’s constitutional powers and cooperated with him to effect major change.
I am in no way comparing our General Assembly to Congress back in the 1930s nor am I comparing FDR to Gov. McCrory. In fact, there are vast differences. I am only making the point that rarely does the legislative body create such change.
But North Carolina’s current Senate Bill 744 may create this change. For example, if Senate Bill 744 passes the House, the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) may no longer manage Medicaid. That’s right. A whole new state agency may manage Medicaid.
This past Friday, May 30, 2014, the state Senate passed a $21.2 billion budget, which is known as Senate Bill 744. On May 31, 2014, Senate Bill 744 passed its 3rd reading and will now go on to the House. So far, it has been revised 3 times, so we do not know whether the House will make substantial changes. But, as it stands today, it is shocking. Is it good? Bad? I don’t think we can know whether the changes are good or bad yet, and, quite honestly, I have not had time to digest all of the possible implications of Senate Bill 744. But, regardless, the changes are shocking.
Of the most shocking changes (should SB 744 get passed), consider the following:
1. DHHS must immediately cease all efforts to transition Medicaid to the affordable care organizations (ACOs) system that DHHS had touted would be in effect by July 2015;
2. DHHS’s DMA will no longer manage Medicaid. Instead, a new state entity will be formed to manage Medicaid. (A kind of…”scratch it all and start over” method);
3. All funds previously appropriated to DMA will be transferred to the Office of State Budget and Management (OSBM) and will be used for Medicaid reform and may not be used for any other purpose such as funding any shortfalls in the Medicaid program.
4. Categorical coverage for recipients of the optional state supplemental program State County Special Assistance is eliminated.
5. Coverage for the medically needy is eliminated, except those categories that the State is prohibited from eliminating by the “maintenance of effort” requirement of the Patient Protection and Affordable Care Act. Effective October 1, 2019, coverage for all medically needy categories is eliminated.
6. It is the intent of the General Assembly to reduce optional coverage for certain aged, blind, and disabled persons effective July 1, 2015, while meeting the State’s obligation under the Americans with Disabilities Act and the United States Supreme Court decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
7. Repeal the shared savings program and just reduce the reimbursement rates by 3%.
8. DHHS shall implement a Medicaid assessment program for local management entities/managed care organizations (LME/MCOs) at a rate of three and one-half percent (3.5%).
9. For additional notices as to State Plan Amendments (SPAs), DHHS must post the proposed SPAs on its website at least 10 days prior to submitting the SPAs to the federal Center for Medicare and Medicaid Services (CMS).
10. Reimbursement rate changes become effective when CMS approves the reimbursement rate changes.
11. The Department of Health and Human Services shall not enter into any contract involving the program integrity functions listed in subsection (a) of this section of SB 774 that would have a termination date after September 1, 2015.
12. The Medicaid PROVIDER will have the burden of proof in contested case actions against the Department.
13. The Department shall withhold payment to any Medicaid provider for whom the DMA, or its vendor, has identified an overpayment in a written notice to the provider. Withholding shall begin on the 75th day after the day the notice of overpayment is mailed and shall continue during the pendency of any appeal until the overpayment becomes a final overpayment (can we say injunction?).
Senate Bill 744 purports to make immense modifications to our Medicaid system. I wonder what Gov. McCrory and Secretary Wos think about Senate Bill 744. If SB 744 passes, McCrory and Wos can no longer continue down the ACO path. Does the General Assembly even have the authority to bind their hands from creating ACOs? It seems so.
As for the “new state agency” that will manage Medicaid, maybe the General Assembly is right and we do need to scratch out the current Medicaid management and start over…I doubt anyone would disagree that DHHS has had some “oops” moments in the past year or so. But (a) is this the way to start all over; and (b) does the General Assembly have the legal power to remove the management of Medicaid from Secretary Wos?
Going to the reduction of optional services for the “medically needy,” what services are considered optional? Here is a list of optional services, as defined by the Center of Medicare and Medicaid Services (CMS):
• Case Management
• Mental Health
• Podiatry
• Intermediate Care Facilities (ICF-MR)
• Personal Care Services
• Prosthetics
• Respiratory Therapy
• Hospice
• Adult Dentures
• Prescription Drugs
• Community Alternative Programs (CAP)
• Private Duty Nursing
• Chiropractor
• Home Infusion Therapy
• Physical Therapy/Speech Therapy
• Transportation
I cannot comment on all the changes proposed by Senate Bill 744; I simply have not had enough time to review them in detail, because there are so many changes. I do not purport to know whether these modifications are ultimately for the good or for the bad.
All I know is that we better start swimming or we will sink like a stone, because the times they are a-changin’.
The NC State Plan, Its Importance, and How Can We Keep Up With All the Changes??
I am constantly amazed at the amount of knowledge that I do not know. And how quickly the knowledge I have becomes obsolete due to changes. To quote Lewis Carroll’s “Alice and Wonderland,” “Why, sometimes I’ve believed as many as six impossible things before breakfast.” My other favorite quote series from Lewis Carroll is the following scene:
“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here. I’m mad. You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, or you wouldn’t have come here.”
So too, must I be mad, I think, at times, for dealing with Medicaid and Medicare law. The statutes and regulations are vast and ever-changing. You can easily miss a policy change that was disseminated by an update posted on the web. But, I am a lawyer…I read a lot. But providers are held accountable as well for every revision and every update.
Just when you think you understand the State Plan, the Department of Health and Human Service (DHHS) asks the Center for Medicare and Medicaid Services (CMS) for an amendment.
In this blog, I am going to discuss 2 issues. (1) What is the State Plan and why is it important; and (2) how can providers stay abreast of the ever-changing Medicare/caid world and policies.
(1) Our State Plan
What is our State Plan in Medicaid? Is it law? Guidance? Does NC have to follow the State Plan? Can NC amend the State Plan?
These are all good questions.
The State Plan is a contract between North Carolina and the federal government describing how NC will administer its State Plan, i.e., Medicaid program. The State Plan describes who can be covered by Medicaid, what services are available, and, basically, assures the federal government that we will abide by certain rules and regulations. NC must follow the State Plan or risk losing federal funding for Medicaid, which would be BAD.
Quite often, the Department of Health and Human Services (DHHS) will issue a State Plan Amendment (SPA) to the Centers for Medicare and Medicaid Services (CMS). DHHS has to post all proposed amendments on its website “10 Day Posting for Submission to CMS.” This internet site should be in your “favorites,” and you should check it regularly.
For example, February 27th, DHHS asked to reduce Medicaid reimbursements methodologies for Chiropractic Services, Podiatry Services and Optometry Services to 97% of the July 1, 2013, rate, effective January 1, 2014 (yes, retroactively).
Just in 2014, there have been approximately 10 SPA requests. So, these SPAs are relatively common.
So, question #2…how can you keep up?
(2) Keeping abreast of all changes
As much as I would love to throw my computer out the window (I am on the 16th floor) and watch it crash, computers and technology can be very helpful. And technology makes it easy for everyone, even busy health care providers, to stay current on changes, amendments, and revisions to Medicaid/care policies and law.
Here is the secret: (shhhhhhhhh!!)
Google Alerts.
If you want to keep current on NCTracks, all you have to do is set a Google alert with the search term “NCTracks,” and you will receive daily email alerts on all internet articles on NCTracks. It is that easy.
So how do you set up a Google Alert? I have drafted a set by step process, otherwise entitled “Google Alerts for Dummies.”
1. Go to Google.
2. At the top of the page you will see the words: “You,” “Search,” “Images,” “Maps,” “Play,” “Youtube,” “News,” “Gmail,” and “More.” Click on “More.”
3. When the box drops, at the very bottom, you will see “even more.” Click on “even more.”
4. Scroll down to specialized search and click on “Alerts.”
5. Type in whatever search term you like, such as “Medicaid,” or “Knicole Emanuel.”
6. Decide how often you want to be alerted and your email address.
You will now be alerted about your topic. See? Easy!!
Now, because of this blog, you have learned two or more impossible things before lunch.
Hello, 2014! And Hello 3% Decrease in Medicaid Reimbursements (But Call the Decrease “Shared Savings”)
Tomorrow is the first Medicaid checkwrite for 2014 (and its my birthday too). Happy New Year! Happy birthday!! (I’m turning 29 for the 10th year). For New Years, my husband and I had a very quiet evening eating crab legs at home. Yum! I am sure many of you made New Years resolutions…work harder…lose weight…get paid 3% less….WHAT?
With the first Medicaid checkwrite tomorrow, due to Session Law 2013-360, many health care providers will receive 3% less in Medicaid reimbursements. You will receive a 3% cut if you are the following types of providers:
- Inpatient hospital.
- Physician, excluding primary care until January 1, 2015.
- Dental.
- Optical services and supplies.
- Podiatry.
- Chiropractors.
- Hearing aids.
- Personal care services.
- Nursing homes.
- Adult care homes.
- Dispensing drugs.
(This is the exact list as found in Session Law 2013-360. I am well aware that the list is grammatically-challenged, but I did not write it). Both the federal government and NC are calling this 3% withholding “Shared Savings Plan with Provider.”
How is this “shared savings with providers” when the government is withholding money from providers??? Sure, supposedly, there will be a “pay for performance payment” to some providers, but most providers will just be reimbursed 3% less.
How is this fair? How is this “shared savings?”
Here’s an example:
Say I work at Harris Teeter and my manager comes up to me and says, “Hey, Knicole, Harris Teeter is really concerned with our overhead costs. Salaries seem to be a big cost, and we want to “share the savings” with you. So we are going to cut your pay by 3%. If we, subjectively, determine, at the end of the year, that you are working hard and saving us money, then we will give you a performance reward. It will not be all the money we retained, but it will be some amount. This way Harris Teeter profits off the interest of the 3% we retain all year, plus the amount we never give you.”
Folks, the above example is called a decrease in pay and a swift kick in the bottom. It is not “shared savings.”
In DHHS’ shared savings scheme, the money will go to:
“The Department of Health and Human Services shall use funds withheld from payments for drugs to develop with Community Care of North Carolina (CCNC) a program for Medicaid and Health Choice recipients based on the ChecKmeds NC program. The program shall include the following:
- At least 50 community pharmacies by June 30, 2015.
- At least 500 community pharmacies in at least 70 counties by June 30, 2016.
- A per member per month (PMPM) payment for care coordination and population health services provided in conjunction with CCNC.
- A pay for performance payment.”
According to the Centers for Medicare and Medicaid Services (CMS), “[a] shared savings methodology typically comprises four important concepts: a total cost of care benchmark, provider payment incentives to improve care quality and lower total cost of care, a performance period that tests the changes, and an evaluation to determine the program cost savings during the performance period compared to the benchmark cost of care and to identify the improvements in care quality.”
Employers chop salaries all the time in order to maximize profit. Back in 2011, Sony proposed 11% salary cuts for executives due to such a terrible fiscal year. But guess what is different between Sony’s 11% cut and Medicaid’s 3%? I know…I know…a lot….but what difference am I thinking about?
Sony sought shareholder approval.
I guess you can make the argument that the General Assembly sought voter approval because our citizens voted for all the legislators in the General Assembly. But I think that argument is weak. No legislator ran his or her campaign on: “Vote for Me! If you are a Medicaid provider, I plan to decrease your salary by 3%!”
Better yet, with the Sony salary cut, executives had the option to seek employment elsewhere. What is a Medicaid provider’s option? Move? Not take Medicaid? (Sadly, I see this as a more viable option).
On a legal note, I question the constitutionality of our new shared savings plan. Wouldn’t the decrease of 3% in Medicaid reimbursements be considered an unlawful taking without due process. In essence, could one argue that the decrease of 3% in Medicaid reimbursements is just a way for the State to decrease Medicaid reimbursements without going through the proper lawful process?
Then again, maybe we won’t need to worry about the 3% decrease at all…given NCTracks’ track record, it is plausible that NCTracks will not be able to adjust the Medicaid reimbursements by 3%.
