Category Archives: Access to Care

“Reverse RAC Audits”: Increase Revenue by Protecting Your Consumers

Today I want to talk about two ways to increase revenue merely by ensuring that your patients’ rights are met. We talk about providers being audited for their claims being regulatory compliant, but how about self-audits to increase your revenue? I like these kind of audits! I am calling these audits “Reverse RAC audits”. Let’s bring money in instead of reimbursements recouped.

You can protect yourself as a provider and increase revenue by remembering and litigating on behalf of your consumers’ rights. Plus, your patients will be eternally grateful for your advocacy. It is a win/win. The following are two, distinct ways to increase revenue and protect your consumers’ rights:

  1. Ensuring freedom of choice of provider; and
  2. Appealing denials on behalf of your consumers.

Freedom of choice of provider.

In a federal case in Indiana, we won an injunction based on the patients’ rights to access to care.

42 CFR § 431.51 – Free choice of providers states that “(b) State plan requirements. A State plan must provide as follows…:

(1)  A beneficiary may obtain Medicaid services from any institution, agency, pharmacy, person, or organization that is –

(i) Qualified to furnish the services; and

(ii) Willing to furnish them to that particular beneficiary.

In Bader v. Wernert, MD, we successfully obtained an injunction enjoining the State of Indiana from terminating a health care facility. We sued on behalf of a geneticist – Dr. Bader – whose facility’s contract was terminated from the Medicaid program for cause. We sued Dr. Wernert in his official capacity as Secretary of the Indiana Family and Social Services Administration. Through litigation, we saved the facility’s Medicaid contract from being terminated based on the rights of the consumers. The consumers’ rights can come to the aid of the provider.

Keep in mind that some States’ Waivers for Medicaid include exceptions and limitations to the qualified and willing provider standard. There are also limits to waiving the freedom of choice of provider, as well.

Appealing consumers’ denials.

This is kind of a reverse RAC Audit. This is an easy way to increase revenue.

Under 42 CFR § 405.910 – Appointed representatives, a provider of services may appeal on behalf of the consumers. If you appeal on behalf of your consumers, the obvious benefit is that you could get reimbursed for the services rendered that were denied. You cannot charge a fee for the service; however, so please keep this in mind.

One of my clients currently has hired my team appealing all denials that are still viable under the statute of limitations. There are literally hundreds of denials.

Over the past few years, they had hundreds of consumers’ coverage get denied for one reason or the other. Allegedly not medically necessary or provider’s trainings weren’t conveyed to the auditors. In other words, most of the denials are egregiously wrong. Others are closer to call. Regardless these funds were all a huge lump of accounts’ receivables that was weighing down the accounting books.

Now, with the help of my team, little by little, claim by claim, we are chipping away at that accounts’ receivables. The receivables are decreasing just by appealing the consumers’ denials.

Provider Medicaid Contract Termination Reversed in Court!

First and foremost, important, health care news:

The Medicare Administrative Contractors (MACs) have full authority to renew post-payments reviews of dates of service (DOS) during the COVID pandemic. The COVID pause is entirely off. It is going to be a mess to wade through the thousands of exceptions. RAC audits of COVID DOS will be, at best, placing a finger on a piece of mercury. I hope that the auditors remember that everyone was scrambling to do their best during the past year and a half. In the upcoming weeks, I will keep you posted.

I am especially excited today. Last week, I won a permanent injunction for a health care facility that but for this injunction, the facility would be closed, its 300 staff unemployed, and its 600 Medicare and Medicaid consumers without access to their mental health and substance abuse providers, their primary care physicians, and the Suboxone clinic. The Judge’s clerk emailed us on Friday. The email was terse although the clerk signified that the email was important by clicking the little, red, exclamation point. It simply stated: After speaking with Judge X, she is dismissing the government’s MTD and granting Petitioner’s permanent injunction. Petitioner’s counsel can send a proposed decision within 10 days. Such a simple email affected so many lives!

We hear Ellen Fink-Samnick MSW, ACSW, LCSW, CCM, CRP, speak about social determinants of health (SDoH) on RACMonitor. Well, this company is minority-owned and the mass percentage of staff and consumers are minorities.

Why was this company on the brink of closing down? The managed care organization (MCO) terminated the company’s Medicaid contract. Medicaid comprised the majority of its revenue. The MCO’s reason was that the company violated 42 CFR §455.106, which states:

“Information that must be disclosed. Before the Medicaid agency enters into or renews a provider agreement, or at any time upon written request by the Medicaid agency, the provider must disclose to the Medicaid agency the identity of any person who:

(1) Has ownership or control interest in the provider, or is an agent or managing employee of the provider; and

(2) Has been convicted of a criminal offense related to that person‘s involvement in any program under Medicare, Medicaid, or the title XX services program since the inception of those programs.”

The former CEO – for years – he relied on professional tax accountants for the company’s taxes and his own personal family’s taxes. His wife, who is a physician, relied on her husband to do their personal taxes as one of his “honey-do” tasks. CEO relied on a sub-par accountant for a couple years and pled guilty to failing to pay personal taxes for two years. The plea ended up in the newspaper and the MCO terminated the facility.

We argued that the company, as an entity, was bigger than just the CEO. Quickly, we filed for a TRO to keep the company open. Concurrently, we transitioned the company from the CEO to Dr. wife. Dr became CEO in a seamless transition. A long-time executive stepped up as HR management.

Yet, according to testimony, the MCO terminated the company’s contract when the newspaper published the article about CEO’s guilty plea. The article was published in a local paper on April 9 and the termination notice was sent out April 19th. It was a quick decision.

We argued that 42 CFR §455.106 didn’t apply because CEO’s guilty plea was:

  1. Personal and not related to Medicare or Medicaid; and
  2. Not a conviction but a voluntary plea agreement.

The Judge agreed. We won the TRO for immediate relief. After a four-day hearing and 22 witnesses for Petitioner, we won the preliminary injunction. At this point, the MCO hired outside counsel with our tax dollars, which I did bring up in the final hearing on the merits.

New outside counsel was super excited to be involved. He immediately propounded a ton of discovery asking for things that he already had and for criminal documents that we had no access to because, by law, the government has possession of and CEO never had. Well, new lawyer was really excited, so he filed motions to compel us to produce these unobtainable documents. He filed for sanctions. We filed for sanctions back.

It grew more litigious as the final hearing on the merits approached.

Finally, we presented our case for a permanent injunction, emphasizing the importance of the company and the smooth transition to the new, Dr. CEO. We won! Because we won, the company is open and providing medically necessary services to our most needy population.

And…I get to draft the proposed decision.

Medicare Auditors Fail to Follow the Jimmo Settlement

Auditors are not lawyers. Some auditors do not even possess the clinical background of the services they are auditing. In this blog, I am concentrating on the lack of legal licenses. Because the standards to which auditors need to hold providers to are not only found in the Medicare Provider Manuals, regulations, NCDs and LCDs. Oh, no… To add even more spice to the spice cabinet, common law court cases also create and amend Medicare and Medicaid policies.

For example, the Jimmo v. Selebius settlement agreement dictates the standards for skilled nursing and skilled therapy in skilled nursing facilities, home health, and outpatient therapy settings and importantly holds that coverage does not turn on the presence or absence of a beneficiary’s potential for improvement.

The Jimmo settlement dictates that:

“Specifically, in accordance with the settlement agreement, the manual revisions clarify that coverage of skilled nursing and skilled therapy services in the skilled nursing facility (SNF), home health (HH), and outpatient therapy (OPT) settings “…does not turn on the presence or absence of a beneficiary’s potential for improvement, but rather on the beneficiary’s need for skilled care.” Skilled care may be necessary to improve a patient’s current condition, to maintain the patient’s current condition, or to prevent or slow further deterioration of the patient’s condition.”

This Jimmo standard – not requiring a potential for improvement – is essential for diseases that are lifelong and debilitating, like Multiple Sclerosis (“MS”). For beneficiaries suffering from MS, skilled therapy is essential to prevent regression.

I have reviewed numerous audits by UPICs, in particular, which have failed to follow the Jimmo settlement standard and denied 100% of my provider-client’s claims. 100%. All for failure to demonstrate potential for improvement for MS patients. It’s ludicrous until you stop and remember that auditors are not lawyers. This Jimmo standard is found in a settlement agreement from January 2013. While we will win on appeal, it costs providers money valuable money when auditors apply the wrong standards.

The amounts in controversy are generally high due to extrapolations, which is when the UPIC samples a low number of claims, determines an error rate and extrapolates that error rate across the universe. When the error rate is falsely 100%, the extrapolation tends to be high.

While an expectation of improvement could be a reasonable criterion to consider when evaluating, for example, a claim in which the goal of treatment is restoring a prior capability, Medicare policy has long recognized that there may also be specific instances where no improvement is expected but skilled care is, nevertheless, required in order to prevent or slow deterioration and maintain a beneficiary at the maximum practicable level of function. For example, in the regulations at 42 CFR 409.32(c), the level of care criteria for SNF coverage specify that the “. . . restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” The auditors should understand this and be trained on the proper standards. The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition.

When you are audited by an auditor whether it be a RAC, MAC or UPIC, make sure the auditors are applying the correct standards. Remember, the auditors aren’t attorneys or doctors.

A Court Case in the Time of COVID: The Judge Forgot to Swear in the Witnesses

Since COVID-19, courts across the country have been closed. Judges have been relaxing at home.

As an attorney, I have not been able to relax. No sunbathing for me. Work has increased since COVID-19 (me being a healthcare attorney). I never thought of myself as an essential worker. I still don’t think that I am essential.

On Friday, May 8, my legal team had to appear in court.

“How in the world are we going to do this?” I thought.

My law partner lives in Philadelphia. Our client lives in Charlotte, N.C. I live on a horse farm in Apex, N.C. Who knows where the judge lives, or opposing counsel or their witnesses? How were we going to question a witness? Or exchange documents?

Despite COVID-19, we had to have court, so I needed to buck up, stop whining, and figure it out. “Pull up your bootstraps, girl,” I thought.

First, we practiced on Microsoft Teams. Multiple times. It is not a user-friendly interface. This Microsoft Team app was the judge’s choice, not mine. I had never heard of it. It turns out that it does have some cool features. For example, my paralegal had 100-percent control of the documents. If we needed a document up on the screen, then he made it pop up, at my direction. If I wanted “control” of the document, I simply placed my mouse cursor over it. But then my paralegal did not have control. In other words, two people cannot fight over a document on this new “TV Court.”

The judge forgot to swear in the witnesses. That was the first mess-up “on the record.” I didn’t want to call her out in front of people, so I went with it. She remembered later and did swear everyone in. These are new times.

Then we had to discuss HIPAA, because this was a health care provider asking for immediate relief because of COVID-19. We were sharing personal health information (PHI) over all of our computers and in space. We asked the judge to seal the record before we even got started. All of a sudden, our court case made us all “essentials.” Besides my client, the healthcare provider, no one else involved in this court case was an “essential.” We were all on the computer trying to get this provider back to work during COVID-19. That is what made us essentials!

Interestingly, we had 10 people participating on the Microsoft Team “TV Court” case. The person that I kept forgetting was there was Mr. Carr (because Mr. Carr works at the courthouse and I have never seen him). Also, another woman stepped in for a while, so even though the “name” of the masked attendee was Mr. Carr, for a while Patricia was in charge. A.K.A. Mr. Carr.

You cannot see all 10 people on the Team app. We discovered that whomever spoke, their face would pop up on the screen. I could only see three people at a time on the screen. Automatically, the app chose the three people to be visible based on who had spoken most recently. We were able to hold this hearing because of the mysterious Mr. Carr.

The witnesses stayed on the application the whole time. In real life, witnesses listen to others’ testimony all the time, but with this, you had to remember that everyone could hear everything. You can elect to not video-record yourself and mute yourself. When I asked my client to step away and have a private conversation, my paralegal, my partner, and the client would log off the link and log back on an 8 a.m. link that we used to practice earlier that day. That was our private chat room.

The judge wore no robe. She looked like she was sitting on the back porch of her house. Birds were whistling in the background. It was a pretty day, and there was a bright blue sky…wherever she was. No one wore suits except for me. I wore a nice suit. I wore no shoes, but a nice suit. Everyone one else wore jeans and a shirt.

I didn’t have to drive to the courthouse and find parking. I didn’t even have to wear high heels and walk around in them all day. I didn’t have to tell my paralegal to carry all 1,500 pages of exhibits to the courthouse, or bring him Advil for when he complains that his job is making his back ache.

Whenever I wanted to get a refill of sweet tea or go to the bathroom, I did so quietly. I turned off my video and muted myself and carried my laptop to the bathroom. Although, now, I completely understand why the Supreme Court had its “Supreme Flush.”

All in all, it went as smoothly as one could hope in such an awkward platform.

Oh, and happily, we won the injunction, and now a home healthcare provider can go back to work during COVID-19. All of her aides have PPE. All of her aides want to go to work to earn money. They are willing to take the risk. My client should get back-paid for all her services rendered prior to the injunction. She hadn’t been getting paid for months. However, this provider is still on prepayment review due to N.C. Gen. Stat. 108C-7(e), which legislators should really review. This statute does not work. Especially in the time of COVID. See blog.

I may be among the first civil attorneys to go to court in the time of COVID-19. If I’m honest, I kind of liked it better. I can go to the bathroom whenever I need to, as long as I turn off my audio. Interestingly, Monday, Texas began holding its first jury trial – virtually. I cannot wait to see that cluster! It is streaming live.

Being on RACMonitor for so long definitely helped me prepare for my first remote lawsuit. My next lawsuit will be in New York City, where adult day care centers are not getting properly reimbursed.

RACMonitor Programming Note:

Healthcare attorney Knicole Emanuel is a permanent panelist on Monitor Monday and you can hear her reporting every Monday, 10-10:30 a.m. EST.

A Comparison of All the #1 European Health Care Systems in the World

2 years ago – Hindsight is 20/20. #COVID19

The United States currently spends more per person on health care than any other developed country. So when my daughter and I recently vacationed the “Highlights of Europe” tour, I was interested in learning about the varied health care systems, country-by-country. We visited England, France, Switzerland, Austria, Germany, the Netherlands, and Italy. It was awesome!! She turned 13 during the trip, and she starts 8th grade next week. Where does the time go?

While I do not protest to know all the answers, during our vacation, I researched the diverse countries’ healthcare system and methods of payment, but, most importantly, I interviewed people. I interviewed people who were begging for money. I interviewed my taxi drivers. I interviewed the bus drivers. I interviewed people on the streets. I interviewed shop owners. I interviewed the hotel concierge. I interviewed bartenders and waiters.

This blog is intended to memorialize my findings. It has not been fact checked. In other words, if a person told me something about the healthcare system and their personal experiences, I did not go back and review that country’s laws to determine whether that person was telling the truth or that the person’s rendition of their experience was compliant with the law. I did this for a reason. Sometimes what the laws dictate as to healthcare is not what actually occurs in reality. I wanted personal perspectives. I wanted an opinion from citizens of other countries as to how healthcare was or was not working in their country. I did not want to meet health care policy, rules, regulations. I wanted the cold, hard, real truth.

At least one person in every country – Austria, The Netherlands, France, England, Germany, Switzerland, and Italy told me, “[Country name] has the best health care in the world.” Obviously, they cannot all be right. And I certainly heard the worst case scenarios in country’s that claimed to be the best in the world.

This is what I learned:

ENGLAND

England has the best health care system in the world! England’s healthcare system is drastically different from the USA’s. England’s National Health Service (NHS) is a free healthcare program for all permanent residents of United Kingdom. Reading the fine print, however, the NHS is not completely free. There are charges associated with eye tests, dental care, prescriptions, and many aspects of personal care.

England relies on primary care more so than specializations. Mental health services, for example, are largely treated by the general practitioners (GPs). Provider trusts, fed by taxes, compensate most health care, the main examples in the hospital trust and the ambulance trusts which send the money allocated to them by commissioning trusts. Hospitals normally receive the lion’s share of NHS funding as hospital’s have the most expenses.

Our taxi driver (Jim) told me that paperwork is minimal with the NHS, which makes it super easy to use. Although he was quick to point out that the health care system in England does vary in quality and timeliness depending on where you live, but I believe we can say the same about the USA. Jim also told me that he and his family has had problems with wait-times to be seen by specialists. Jim’s wife suffered persistent and serious acid reflux. Her general practitioner referred her to a gastroenterologist. However, she could not get an appointment until 20 weeks later. But, in the end, she was seen, and had no waiting period on the day of her appointment. Generally, Jim is happy with the NHS. The costs are minimal, and, he believes that the quality of care is high.

The hotel concierge (let’s call him Blake) was extremely open about his experiences with the health care system in England. It appears from his enthusiasm that health care is just as big of a political issue in England than it is in the US. He told me that he has never waited more than four hours in an emergency room. Apparently, his children frequent it. However, I do place an asterisk on Blake’s comment. You will see below that Alice from France waited for 7 hours at the ER in the UK with her husband. Some of the stories that I heard contradicted each other.

Blake also told me that for traumatic experiences, such a broken arm due to a car accident, which his youngest daughter recently endured, the wait time is significantly less than when his best buddy got drunk at the pub and broke his finger. Blake also told me that, for day-to-day, general, “I have a tummy ache” appointments, English citizens do not get to choose appointment times. You leave a voice mail message for the nurse and the nurse informs you when you need to present yourself. While this may sound inconvenient, Blake stated that there are no wait times. I know that I have waited many an hour to see my general practitioner.

Dental insurance, on the other hand, is a whole new can of worms. Basically, general practitioners are free, but dentists are not. The wait times to see a dentist are extensive, and, if you do not have private dental insurance, the wait times can be even longer. My take-away? If I were a dentist, I’d move the the UK. This also explains a lot about English actors and actresses.

We cannot analyze any country’s health care system without taking into account the taxes that you must pay in order to maintain such a health care system, no matter how poor or amazing that health care system is. Income taxes in the UK are 40% if you make more than 46,351 pounds. Once you hit 150,000 pounds, then your taxes increase to 45%. Almost half of your wages are taken by the government, but you get, essentially, free health care. Does it balance out?

THE NETHERLANDS

The Netherlands has the best health care system in the world! Every person that I asked in Amsterdam, informed me that Dutch health care is among the best in the world. It seemed that the Dutch took pride in their health care system. So, I wanted details. If Dutch health care is the best, why doesn’t everyone else mimic it?

I learned that everyone who lives or works in the Netherlands is legally obligated to take out standard health insurance. All insurers offer the same standard package. The standard insurance package includes general practitioners, some medications, dental care until the age of 18, nutritional and dietary care, medical aids, mental health services, and much more. It does not cover over-the-counter aspirin or cosmetic surgery procedures. But neither does insurance in America.

In Amsterdam, my daughter and I rented bicycles for two days. It was an absolute blast. The rental process, however, took a bit longer than expected. The gentleman behind the counter needed our passport numbers, information on our hotel, credit card information, and provided us with an instruction program on how to properly secure the bicycles. Given the length of the process, I took the opportunity to ask him about health care.

Let’s call the bicycle rental agent Stefan.

Stefan explained that the Dutch believe in misery first. According to him, regardless the affliction, general practitioners will tell you to take an aspirin and come back in two weeks if you are not dead. I am fairly sure that he was exaggerating. But I have always been of the opinion that exaggerations have some form of truth.

In the Netherlands, the general practitioners are called huisarts, which are expected to know all aspects of medicine. I liken the huisarts to attorneys who practice general law. What attorney could know all aspects of family law and criminal law? The answer is none. A generalist knows a tad about everything, but nothing much about anything.

Preventive care is rare in the Netherlands, certainly in terms of women’s health. For example, in the US, France, and Spain, it is typical to get a test for cervical cancer at least every 2 to 3 years. Here, in Amsterdam, insurance will only pay for one every 5 years. Hormone replacement therapy is also rare here, as most GPs are still following outdated guidelines, based on a flawed study from 2002.

It seems as though I am overly negative as to the health care in the Netherlands. All I can write is that I began this blog with an open mind because if any country has mastered health care then we should learn from it. I was also swayed by my interviewees.

While other countries maintained high income taxes to pay for “free health care,” the Netherlands does not use tax dollars to pay for health care. Every Dutch resident is required to buy their own health insurance on top of the taxes they pay to the government.

Taxes in the Netherlands is exorbitant. If you make over 66,421 euros, taxes are 52% of your income. These taxes, remember, do not include health insurance.

In Amsterdam, there was a pub across the river from our hotel Movenpick. A group of guys were “celebrating” an upcoming wedding and were drinking bottles upon bottles of wine at the river’s edge. Multiple times members of the group ended up swimming.

So, imagine my surprise when one of the intoxicated gentlemen sat at our table and ensued with a semi-intelligent conversation about health care. We will call him Henry. Henry had recently been married and his wife gave birth last year to a premature baby. I completely related because my daughter was born at 28 weeks and 2 pounds and 2 ounces. I asked Henry about the health care coverage for his premature baby girl’s birth and subsequent surgeries. He told me that, besides the meals that he ate during the two-month stay in the hospital, once his new daughter and wife were free to leave, his hospital bill was zero. His daughter endured a two-month stay in the neonatal department, his wife had a two-month, inpatient hospital stay, his daughter underwent multiple surgeries for her lungs and heart, and his daughter had 24-hour care for 60 days. All for zero euros. All children in the Netherlands are automatically insured by the government.

While I see the downside of paying 52% of your income to the Dutch government and having to pay for health insurance, I do see the benefit of Dutch insurance if you have a medical emergency, like a premature baby.

FRANCE

France has the best health care system in the world! In a 2000 World Health Organization (WHO) comparison of 191 different countries’ health care, France came out at number one. And they are not afraid to tell you. Even though the WHO ranking is from 2000, the French still tout its outcome because there have been no other such rankings since then. The French believe in the universal right to health care.

The entire population must pay compulsory health insurance.

Our two-hour ride on the Eurostar from Paris to London gave me a unique opportunity to ask other passengers about health care, especially since there is bar in one of the cabins. People congregated there to drink, eat, and talk, plus one nosy American asking about health care. The following are summaries of the stories I heard:

Nancy, who is from Devon, England and has lived in France with her family since 2006 thinks that French health care is the best. Since she moved to France her family has, unfortunately, undergone 6 operations. Her husband had cancer a couple of years ago and the Oncopole (oncologist) encouraged alternative therapies and even told him the taxi drivers (bringing patients home from the hospital) often go straight to a rebouteuse (a healer) after radiotherapy. A lot of doctors practice homeopathy, which is fantastic, according to Nancy. She also said that doctors prescribe “sacks full of medicine.” The good news is that Nancy’s husband is in remission.

Alice, a former British citizen, who moved to France told me the French health care system saved her husband’s life. Five years ago, her husband started to feel ill while visiting the UK. They couldn’t get a family/general practitioner to come to their home (I thought, my doctor wouldn’t come to my home in the US either). Over the phone, the general practitioner said, “take an aspirin and rest.” They also went to the ER but gave up after 7 hours waiting as her husband was in extreme pain (Juxtapose Blake’s recount that he never waited over 4 hours in the ER in the UK). A few days later they flew home, and her husband could not walk. Within an hour of arriving in France, her husband was admitted to a hospital. He was diagnosed with stage 4 kidney failure and stage 5 equates to dialysis. Needless to say, Alice is a French health care fan.

My daughter and I used a tour group company for our mommy-daughter vacation, and, while in France, I heard one person tout that health care is free in France. I will contend, from my travels, that French health care is great, but not completely free. I saw a presumably-homeless, elderly gentleman with no legs begging for money. In extremely, broken Frenglish and impromptu sign language, I asked the gentleman why he didn’t have health coverage and was he a French citizen? To the best of my ability, I interpreted his responses to indicate that, yes, he is a French citizen, but that free, French health care does not include prosthetics.

Taxes are approximately 41% if you make over $72,617. Whereas, in the US, if you make over $72,000 your tax bracket is 15.55%, barring extraordinary circumstances.

ITALY

Italy has the best health care system in the world! From my travels, I gathered that Italians believe that their health care system is the best (over France’s – I believe that there is a bit of a friendly rivalry). In 2000, the World Health Organization (WHO) ranked Italy as the 2nd best health care system in the world, right under France. In 2012, WHO found Italy’s life expectancy to be 82.3 years.

Italy has a regionally organized National Health Service (“SSN” – Servizio Sanitario Nazionale) that provides citizens with free or low-cost healthcare. It’s funded through national income taxes and regional VAT, and generally the standard of care is very high. I was pleased to discover that foreign citizens living in Italy with a regular stay permit are entitled to all the same treatment and rights as Italian citizens. Retirement 2035 – here I come!

For a country with the best health care in the world, I saw the most homeless, medically-challenged beggars than any other country. Maybe there are more homeless, medically-challenged beggars in Italy than other country because the weather is so nice, the gelato is so delicious, the population is greater, mental health care is worse, or the food is so amazing…I do not know. But I saw the most homeless, medically challenged beggars in Italy than anywhere else. Oddly, the afflictions were the same. Their feet were misshapen and curled inward to a degree that did not allow them to walk. It was heartbreaking. I googled it and discovered that medical articles have been written on the anomaly of foot deformities in southern Italy.

Taxes in Italy are as follows:

  • 23% for amounts up to $36,000
  • 33% for the next band from $36,001 to $39,300
  • 39% for amounts between $39,301 and $119,200
  • 45% for amounts $119,201 and over.

I met Valentina in Roma. Europe has strict hourly limits for bus drivers and our original bus driver, apparently, over-drove. Valentina stepped in and was very chatty, unlike the original bis driver who spoke no English. Considering our group consisted of 21 English-speaking vacationers and one couple fluent in Spanish and English, a bus driver who only spoke French was unhelpful.

Valentina told me that in Italy, mainly in the south, public hospitals are very crowded and offer very limited and sometimes hasty assistance, so that patients are too soon sent to rehabilitation centers, very few of which are public. This almost entirely private field is financially sustained by the National Health Service, which pays a per diem for a patient’s clinic stay. If a patient still needs rehabilitation after 2 months in a rehabilitation clinic or center, reimbursement from the National Health Service will be in any case cut by about 40%. Private insurance is very rare and usually is not involved in rehabilitation.

In private rehabilitation centers, physicians often have to deal with overworked nurses and angry, worried patients and relatives.

Valentina said that her mother went to her general practitioner complaining of frequent headaches, depression, anxiety, dizziness, and recurrent fatigue. Her general practitioner, diagnosed her as “a hysteric neurotic,” and she was prescribed anxiolytics. Her headaches continued. When she finally was able to see a specialist, her magnetic resonance image report showed that she had several cerebral metastatic lesions from an otherwise silent neoplasia – basically, a death sentence.

SWITZERLAND

Switzerland has the best health care system in the world! The Swiss health care system is regulated by the Swiss Federal Law on Health Insurance. There are no free state-provided health services, but private health insurance is compulsory for all persons residing in Switzerland (within three months of taking up residence or being born in the country) (country #2 on my options for retirement).

Like every country we visited, Switzerland has a universal health care system, requiring all to buy insurance. Switzerland holds a special place in my heart. My mother’s mother, Martha Zuin (imagine an umlaut over the ‘u’), immigrated to the US from Switzerland, so I still have family living in Switzerland.

The plans in Switzerland resemble those in the United States under the Affordable Care Act: offered by private insurance companies, community-rated and guaranteed-issue, with prices varying by things like breadth of network, size of deductible and ease of seeing a specialist. Almost 40% of people get subsidies offsetting the cost of premiums, on a sliding scale pegged to income. Although these plans are offered on a nonprofit basis, insurers can also offer coverage on a for-profit basis, providing additional services and more choice in hospitals. For these voluntary plans, insurance companies may vary benefits and premiums; they also can deny coverage to people with chronic conditions. Most doctors work on a national fee-for-service scale, and patients have considerable choice of doctors, unless they’ve selected a managed-care plan.

Both Swiss and German systems cost their countries about 11 percent of GDP.

Mia, the hotel clerk at Lake Maggiore, is a Swiss resident. She informed me that insurance premiums are not adequately adjusted to income, and they have doubled in price since 1996, while salaries have risen by just one-fifth. It comes as no surprise, then, that just over a quarter of the population needed government assistance to pay their premiums in 2014. She says that over 1/2 of Swiss residents owe money for medical bills.

You can be blacklisted from reimbursement for health insurance in Switzerland.  Some 30,000 blacklisted patients so far have lost their right to be reimbursed for medical services under basic insurance and can be refused care, save for emergencies. A policy initially designed to encourage people to pay up has instead come under fire for going against the principle of basic health coverage for all. In 2017, EHR became mandatory for most, which increased the costs for many health care visits.

Research told me that Switzerland is the second most expensive country for health care other than USA with The Netherlands, Sweden, Germany, and Denmark closely following.

GERMANY

Germany has the best health care system in the world! The German health care system and Switzerland’s have a lot in common. According to interviewees, Germany has slightly better access to health care, especially with respect to costs. Switzerland has higher levels of cost-sharing, but its outcomes are hard to beat — arguably the best in the world – for real.

A majority of Germans (86%) get their coverage primarily though the national public system, with others choosing voluntary private health insurance. Most premiums for the public system are based on income and paid for by employers and employees, with subsidies available but capped at earnings of about $65,000. Patients have a lot of choice among doctors and hospitals, and cost sharing is quite low. It’s capped for low-income people, reduced for care of those with chronic illnesses, and nonexistent for services to children. There are no subsidies for private health insurance, but the government regulates premiums, which can be higher for people with pre-existing conditions. Private insurers charge premiums on an actuarial basis when they first enroll a customer, and subsequently raise premiums only as a function of age — not health status. Most physicians work in a fee-for-service setting based on negotiated rates, and there are limits on what they can be paid annually.

Though mostly public, the German health insurance system is not a state-run system like the National Health Service in the United Kingdom. In fact, more than 100 different health insurers, known as sickness funds, compete for members in Germany’s comparatively decentralized system. These sickness funds are non-profit, non-governmental organizations that operate autonomously. Most Germans’ health insurance contributions are deducted from their paychecks by their employers. The amount, however, is capped at 14.6% of a person’s salary, split fifty-fifty between the employer and the employee, so 7.3% each way. But coverage is not dependent on the employer, so when Germans change or lose their jobs, nothing changes in their health insurance. Recent changes in health care have allowed the wealthy to obtain higher quality and more efficient health care services. Anyone who makes over 57,600 euros/year can opt out of public health care and pay for private health care. Doctors are more prone to be more attentive of their privately-insured patients.

We met Emma at a beer garden; she was our waitress. Emma was as equally inquisitive about American health care as I was about German health care. She said that she could not get her head wrapped around HIPAA. Privacy, she indicated, is not a hot topic issue in Germany. Emma said that doctors in Germany “get it wrong a lot.” When I asked her what she meant, she said that she went to her general practitioner for chest pain. Whereas, in America, chest pain is considered serious, Emma said that her doctor did not even place a stethoscope on her chest. Instead, he told her to go home, rest, and take an Ibuprofen. Emma’s friend had a baby with a problem in one eye. She went to several doctors and they told her nothing can be done. She finally went to a specialist in Spain and received a concrete diagnostic and special glasses for the 7 month-old-baby, because the eye movement was related to the eye condition.

AUSTRIA

Austria has the best health care system in the world! If European health care were on a bell curve, Austria would be at the bottom (hmmmmm…..although I have not compared Austria to the US). Dr. Clemens Martin Auer is the President of the European Health Forum Gastein and Director General at the Austrian Federal Ministry of Health.

Austriapres

Dr. Auer is focused on digital health and access to drugs. Talking to people in other European countries, who complained about over prescribing, Austria, apparently, has a high cost issue barring many people from receiving prescriptions.

In Austria, the health care system is largely financed by social security contributions and taxes, to a lesser part also by private sources, such as prescription charges, compulsory personal contributions, per-diem charges for hospital stays or contributions to private health insurance.

Each month a contribution will be taken from your tax payment, which is worked out according to how much you earn. This gives you access to basic healthcare including treatment in hospitals, medication, dental care, and some specialist appointments. If you make over 31,000 euros, you pay 41% tax.

According to Tobias, the man I met in Innsbruck, people wait months to see a specialist. So, if you have a cold, you are good, but of you have cancer, then get on the waiting list. Tobias also told me that people do not go to hospitals unless they have a severe injury or serious surgery. Instead, the general practitioners are heavily relied on. I am not sure I like the idea of going to a generalist for everything. If I have stark knee pain, I want to see an orthopedic, not a general internist. But I am learning that free health care may not equate to the best health care.

Inconsequential Medicare Audits Could Morph into a Whopper of a Whale

Emergency room physicians or health care providers are a discrete breed – whales in a sea of fish. Emergency room doctors have – for the most part – been overlooked by the RAC auditors or TPE, ZPIC, or MAC auditors. Maybe it’s because, even RAC auditors have children or spouses that need ER services from time to time. Maybe it’s because ER doctors use so many different billers. Normally, an ER doctor doesn’t know which of his or her patients are Medicaid or Medicare. When someone is suffering from a a broken leg or heart attack, the ER doctor is not going to stop care to inquire whether the patient is insured and by whom. But should they? Should ER doctors have to ask patients their insurer? If the answer includes any sort of explanation that care differs depending on whether someone is covered by Medicare or Medicaid or has private insurance, then, sadly, the answer may be yes.

ER doctors travel to separate emergency rooms, which are owned by various and distinct entities, and rely on individual billing companies. They do not normally work at only one hospital. Thus, they do not always have the same billers. We all know that not all billers are created equal. Some are endowed with a higher understanding of billing idiosyncrasies than others.

For example, for CPT codes 99281-99285 – Hospital emergency department services are not payable for the same calendar date as critical care services when provided by the same physician or physician group with the same specialty to the same patient. 

We all know that all hospitals do not hire and implement the same billing computer software programs. The old adage – “you get what you pay for” – may be more true than we think. Recent articles purport that “the move to electronic health records may be contributing to billions of dollars in higher costs for Medicare, private insurers and patients by making it easier for hospitals and physicians to bill more for their services, whether or not they provide additional care.” – Think a comment like that would red-flag ER doctors services by RAC, MAC and ZPIC auditors? The white whale may as well shoot a water spray 30 feet into the air.

Will auditing entities begin to watch ER billing more closely? And what are the consequences? When non-emergency health care providers are terminated by Medicare, Medicaid, or a MAC or MCO’s network, there is no emergency – by definition. Juxtapose, the need for ER health care providers. ER rooms cannot function with a shortage of  physicians and health care providers. Even more disturbing is if the termination is unwarranted and seemingly inconsequential – only affecting under 4 surgeries per month – but acts as the catalyst for termination of Medicare, Medicaid, and private payors across the board.

I have a client named Dr. Ishmael. His big fish became the MAC Palmetto – very suddenly. Like many ER docs, he rotates ERs. He provides services for Medicare, Medicaid, private pay, uninsured – it doesn’t matter to him, he is an ER doctor. He gets a letter from one MAC. In this case, it was Palmetto. Interestingly enough, Palmetto is his smallest insurance payor. Maybe 2 surgeries a month are covered by Palmetto. 90% of his services are provided to Medicaid patients. Not by his choice, but by demographics and circumstance. The letter from Palmetto states that he is being excluded from Palmetto’s Medicare network, effective in 10 days. He will also be placed on the CMS preclusion list in 4 months.

We appeal through Palmetto, as required. But, in the meantime, four other MACs, State Medicaid and BCBS terminate Dr. Ishmael’s billing privileges for Medicare and Medicaid based on Palmetto’s decision. Remember, we are appealing Palmetto’s decision as we believe it is erroneous. But because of Palmetto’s possibly incorrect decision to terminate Dr. Ishmael’s Medicare billing privileges, all of a sudden, 100% of Dr. Ishmael’s services are nonbillable and nonreimburseable…without Dr. Ishmael or the hospital ever getting the opportunity to review and defend against the otherwise innocuous termination decision.

Here, the hospital executives, along with legal counsel, schedule meetings with Dr. Ishmael. “They need him,” they say. “He is important,” they say. But he is not on the next month’s rotation. Or the next.

They say: “Come and see if ye can swerve me. Swerve me? ye cannot swerve me, else ye swerve yourselves! man has ye there. Swerve me?”

Billing audits on ER docs for Medicare/caid compliance are distinctive processes, separate from other providers’ audits. Most providers know the insurance of the patient to whom they are rendering services. Most providers use one biller and practice at one site. ER docs have no control over the choice of their billers. Not to mention, the questions arises, who gets to appeal on behalf the ER provider? Doesn’t the hospital reap the benefit of the reimbursements?

But one seemingly paltry, almost, minnow-like, audit by a cameo auditor can disrupt an entire career for an ER doc. It is imperative to act fast to appeal in the case of an ER doc.  But balance speed of the appeal with the importance of preparing all legal arguments. Most MACs or other auditing entities inform other payors quickly of your exclusion or termination but require you to put forth all arguments in your appeal or you could waive those defenses. I argue against that, but the allegations can exist nonetheless.

The moral of the story is ER docs need to appeal and appeal fast when billing privileges are restricted, even if the particular payor only constitutes 4 surgeries a month. As Herman Melville said: “I know not all that may be coming, but be it what it will, I’ll go to it laughing.” 

Sometimes, however, it is not a laughing matter. It is an appealable matter.

Coronavirus Shuts Down Courts

Coronavirus shuts down Courts across North Carolina. As of now, Superior and District Courts remain open…for now.

*My next blog will explore the new budget and emergency measures implemented for Medicare and Medicaid. More money will be funded to both during this crisis…TBD. How is the Coronavirus impacting health care?

The following emergency directive was initiated, effective TODAY.

On 10 March 2020, Governor Roy Cooper declared a state of emergency in North Carolina in response to the emerging public health threat posed by COVID-19. Since that time, the World Health Organization has designated the COVID-19 outbreak as a global pandemic, and the North Carolina Department of Health and Human Services has urged all North Carolinians to take steps to reduce the spread of infection. Accordingly, I hereby determine and declare under N.C.G.S. § 7A-39(b)(2) that catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state. Although the superior courts and district courts remain open, two emergency directives are necessary to reduce the spread of infection.

Emergency Directive 1

I order that all superior court and district court proceedings be scheduled or rescheduled for a date no sooner than 30 days from the issuance of this order, unless: 1. the proceeding will be conducted remotely; 2. the proceeding is necessary to preserve the right to due process of law (e.g., a first appearance or bond hearing, the appointment of counsel for an indigent defendant, a probation hearing, a probable cause hearing, etc.); 3. the proceeding is for the purpose of obtaining emergency relief (e.g., a domestic violence protection order, temporary restraining order, juvenile custody order, judicial consent to juvenile medical treatment order, civil commitment order, etc.); or 4. the senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding can be conducted under conditions that protect the health and safety of all participants. This emergency directive does not apply to any proceeding in which a jury has already been empaneled. This emergency directive does not apply to grand juries which have already been empaneled. This emergency directive does not prohibit a judge or other judicial officer from exercising any in chambers or ex parte jurisdiction conferred by law upon that judge or judicial officer, as provided by law. Additionally, I encourage the superior courts and district courts to liberally grant additional accommodations to parties, witnesses, attorneys, and others with business before the courts who are at a high risk of severe illness from COVID-19.

Emergency Directive 2

I further order that the clerks of superior court shall post a notice at the entrance to every court facility in their county directing that any person who has likely been exposed to COVID-19 should not enter the courthouse. A person who has likely been exposed to COVID-19 who has business before the courts shall contact the clerk of superior court’s office by telephone or other remote means, inform court personnel of the nature of his or her business before the court, and receive further instruction. For purposes of this order, a person who has likely been exposed to COVID-19 is defined as any person who: 1. has traveled to China, South Korea, Japan, Italy, or Iran within the previous 14 days; 2. has been directed to quarantine, isolate, or self-monitor; 3. has been diagnosed with COVID-19; or 4. resides with or has been in close contact with any person in the above mentioned categories.

* * * The directives contained in this order will take effect Monday, 16 March 2020.

This order may be extended in whole or in part for additional 30-day periods if necessary.

Issued this the 13th day of March, 2020. Cheri Beasley, Chief Justice Supreme Court of North Carolina

Inconsequential Medicare Audits Could Morph into a Whopper of a Whale

Emergency room physicians or health care providers are a discrete breed – whales in a sea of fish. Emergency room doctors have – for the most part – been overlooked by the RAC auditors or TPE, ZPIC, or MAC auditors. Maybe it’s because, even RAC auditors have children or spouses that need ER services from time to time. Maybe it’s because ER doctors use so many different billers. Normally, an ER doctor doesn’t know which of his or her patients are Medicaid or Medicare. When someone is suffering from a a broken leg or heart attack, the ER doctor is not going to stop care to inquire whether the patient is insured and by whom. But should they? Should ER doctors have to ask patients their insurer? If the answer includes any sort of explanation that care differs depending on whether someone is covered by Medicare or Medicaid or has private insurance, then, sadly, the answer may be yes.

ER doctors travel to separate emergency rooms, which are owned by various and distinct entities, and rely on individual billing companies. They do not normally work at only one hospital. Thus, they do not always have the same billers. We all know that not all billers are created equal. Some are endowed with a higher understanding of billing idiosyncrasies than others.

For example, for CPT codes 99281-99285 – Hospital emergency department services are not payable for the same calendar date as critical care services when provided by the same physician or physician group with the same specialty to the same patient. 

We all know that all hospitals do not hire and implement the same billing computer software programs. The old adage – “you get what you pay for” – may be more true than we think. Recent articles purport that “the move to electronic health records may be contributing to billions of dollars in higher costs for Medicare, private insurers and patients by making it easier for hospitals and physicians to bill more for their services, whether or not they provide additional care.” – Think a comment like that would red-flag ER doctors services by RAC, MAC and ZPIC auditors? The white whale may as well shoot a water spray 30 feet into the air.

Will auditing entities begin to watch ER billing more closely? And what are the consequences? When non-emergency health care providers are terminated by Medicare, Medicaid, or a MAC or MCO’s network, there is no emergency – by definition. Juxtapose, the need for ER health care providers. ER rooms cannot function with a shortage of  physicians and health care providers. Even more disturbing is if the termination is unwarranted and seemingly inconsequential – only affecting under 4 surgeries per month – but acts as the catalyst for termination of Medicare, Medicaid, and private payors across the board.

I have a client named Dr. Ishmael. His big fish became the MAC Palmetto – very suddenly. Like many ER docs, he rotates ERs. He provides services for Medicare, Medicaid, private pay, uninsured – it doesn’t matter to him, he is an ER doctor. He gets a letter from one MAC. In this case, it was Palmetto. Interestingly enough, Palmetto is his smallest insurance payor. Maybe 2 surgeries a month are covered by Palmetto. 90% of his services are provided to Medicaid patients. Not by his choice, but by demographics and circumstance. The letter from Palmetto states that he is being excluded from Palmetto’s Medicare network, effective in 10 days. He will also be placed on the CMS preclusion list in 4 months.

We appeal through Palmetto, as required. But, in the meantime, four other MACs, State Medicaid and BCBS terminate Dr. Ishmael’s billing privileges for Medicare and Medicaid based on Palmetto’s decision. Remember, we are appealing Palmetto’s decision as we believe it is erroneous. But because of Palmetto’s possibly incorrect decision to terminate Dr. Ishmael’s Medicare billing privileges, all of a sudden, 100% of Dr. Ishmael’s services are nonbillable and nonreimburseable…without Dr. Ishmael or the hospital ever getting the opportunity to review and defend against the otherwise innocuous termination decision.

Here, the hospital executives, along with legal counsel, schedule meetings with Dr. Ishmael. “They need him,” they say. “He is important,” they say. But he is not on the next month’s rotation. Or the next.

They say: “Come and see if ye can swerve me. Swerve me? ye cannot swerve me, else ye swerve yourselves! man has ye there. Swerve me?”

Billing audits on ER docs for Medicare/caid compliance are distinctive processes, separate from other providers’ audits. Most providers know the insurance of the patient to whom they are rendering services. Most providers use one biller and practice at one site. ER docs have no control over the choice of their billers. Not to mention, the questions arises, who gets to appeal on behalf the ER provider? Doesn’t the hospital reap the benefit of the reimbursements?

But one seemingly paltry, almost, minnow-like, audit by a cameo auditor can disrupt an entire career for an ER doc. It is imperative to act fast to appeal in the case of an ER doc.  But balance speed of the appeal with the importance of preparing all legal arguments. Most MACs or other auditing entities inform other payors quickly of your exclusion or termination but require you to put forth all arguments in your appeal or you could waive those defenses. I argue against that, but the allegations can exist nonetheless.

The moral of the story is ER docs need to appeal and appeal fast when billing privileges are restricted, even if the particular payor only constitutes 4 surgeries a month. As Herman Melville said: “I know not all that may be coming, but be it what it will, I’ll go to it laughing.” 

Sometimes, however, it is not a laughing matter. It is an appealable matter.

Termination Underway for Virginia Medicaid Behavioral Health Care Providers!

As Virginia Medicaid behavioral health care providers are being terminated, the question remains, is it legal?

Virginia behavioral health care providers that accept Medicaid are under statewide blanket fire.

Without warning or provocation, the Managed Care Organizations (MCOs) recently began a mass firing, terminating all Medicaid behavioral health care providers “without cause.” Since the terminations involved multiple MCOs that were not ostensibly connected by business organization, involving providers across the state, it became immediately clear that the MCOs may have planned the terminations together.

Why are the MCOs doing this, you might ask? If you were charged with managing a firehose of Medicaid dollars, would you rather deal with 100 small providers or two large providers? This appears to be discrimination based on size.

Thankfully, for the behavioral healthcare providers of Virginia, they had an association, which is run by a tenacious woman with energy like the Energizer Bunny and passion like a tsunami. Caliber Virginia is the association heading the defense.

This is not my first rodeo with large-scale litigation regarding Medicare or Medicaid. I represented four behavioral healthcare providers in the New Mexico debacle through the administrative process. I have brought class-action lawsuits based on the computer software program implemented by the state to manage Medicaid funds. I have been successful in federal courts in obtaining federal injunctions staying terminations of Medicaid provider contracts.

Since I was contacted by Caliber Virginia, I have reviewed multiple contracts between providers and MCOs, termination letters, and federal and state law, listened to the stories of the providers that are facing imminent closure, and brainstormed legal theories to protect the providers.

I came up with this – these MCOs cannot terminate these providers “without cause.” In fact, these MCOs cannot terminate these providers without good reason.

Under numerous Supreme Court holdings, most notably the Court’s holding in Board of Regents v. Roth, the right to due process under the law only arises when a person has a property or liberty interest at stake.

In determining whether a property interest exists, a Court must first determine that there is an entitlement to that property. Unlike liberty interests, property interests and entitlements are not created by the Constitution. Instead, property interests are created by federal or state law, and can arise from statute, administrative regulations, or contract.

Specifically, the Fourth Circuit Court of Appeals has determined that North Carolina Medicaid providers have a property interest in continued provider status. In Bowens v. N.C. Dept. of Human Res., the Fourth Circuit recognized that the North Carolina provider appeals process created a due-process property interest in a Medicaid provider’s continued provision of services, and could not be terminated “at the will of the state.” The Court determined that these due process safeguards, which included a hearing and standards for review, indicated that the provider’s participation was not “terminable at will.” The Court held that these safeguards created an entitlement for the provider, because it limits the grounds for termination, only for cause, and that such cause was reviewable. The Fourth Circuit reached the same result in Ram v. Heckler two years later. I foresee the same results in other appellate jurisdictions, but definitely again within the Fourth Circuit.

Since Ram, North Carolina Medicaid providers’ rights to continued participation has been strengthened through the passage of Chapter 108C. Chapter 108C expressly creates a right for existing Medicaid providers to challenge a decision to terminate participation in the Medicaid program in the Office of Administrative Hearings (OAH). It also makes such reviews subject to the standards of Article 3 of the Administrative Procedure Act (APA). Therefore, North Carolina law now contains a statutory process that confers an entitlement to Medicaid providers. Chapter 108C sets forth the procedure and substantive standards for which OAH is to operate, and gives rise to the property right recognized in Bowens and Ram. Similarly, the Virginia law provides an appeal process for providers to follow in accordance with the Virginia Administrative Process Act.  See VA Code § 32.1-325 and 12 VAC 30-121-230.

In another particular case, a Medicare Administrative Contractor (MAC) terminated a provider’s ability to deliver four CPT® codes, which comprised of over 80 percent of the provider’s bailiwick, severely decreasing the provider’s funding source, not to mention costing Medicare recipients’ access to care and choice of provider.

The MAC’s contention was that the provider was not really terminated, since they could still participate in the network in ways. But the company was being terminated from providing certain services.

The Court found that the MAC’s contention that providers have no right to challenge a termination was without merit. And, rightfully so, the Court stated that if the MAC’s position were correct, the appeals process provided by law would be meaningless. This was certainly not the case.

The MAC’s contention that it operates a “closed network” and thus can terminate a provider at its sole discretion was also not supported by the law. No MAC or MCO can cite to any statute, regulation, or contract provision that gives it such authority. The statutory definition of “closed network” simply delineates those providers that have contracted with the Local Management Entity (LME) MCOs to furnish services to Medicaid enrollees. The MAC was relying on its own definition of “closed network” to exercise complete and sole control and discretion, which is without foundation and/or any merit. Nothing in the definition of “closed network” indicates that MACs or MCOs have absolute discretion to determine which existing providers can remain in the closed network.

It is well-settled law that there is a single state agency responsible for Medicare and Medicaid: The Centers for Medicare & Medicaid Services (CMS). Case law dictates that the responsibility cannot be delegated away. A supervisory role, at the very least, must be maintained.

On the Medicaid level, 42 CFR § 438.214, titled “Provider Selection,” requires the state to ensure, through a contract, that each MCO PIHP (Prepaid Inpatient Health Plan) “implements written policies and procedures for selection and retention of providers.”) A plain reading of the law makes clear that MCOs that operate a PIHP are required to have written policies and procedures for retention of providers. Requiring policies and procedures would be pointless if they are not followed.

The Medicare Provider Manual and any the provisions of a request for proposal (RFP) must be adhered to, pursuant to the federal regulation and the state contracts. To the extent that Alliance’s policy states that it can decide not to retain a provider for any reason at its sole discretion, such a policy does not conform with federal law or the state requirements.

On the Medicare level, 42 U.S.C. § 405(h) spells out the judicial review available to providers, which is made applicable to Medicare by 42 U.S.C. § 1395ii. Section 405(h) aims to lay out the sole means by which a court may review decisions to terminate a provider agreement in compliance with the process available in § 405(g). Section 405(g) lays out the sole process of judicial review available in this type of dispute. The Supreme Court has endorsed the process, for nearly two decades, since its decision in Shalala v. Illinois Council on Long Term Care, Inc., holding that providers are required to abide by the provisions of § 405(g) providing for judicial review only after the administrative appeal process is complete.

The MACs and the MCOs cannot circumvent federal law and state requirements regarding provider retention by creating a policy that allows them to make the determination for any reason in its sole discretion. Such a provision is tantamount to having no policies and procedures at all.

If you or someone you know is being terminated in Virginia, please contact me – kemanuel@potomasclaw.com, or Caliber Virginia – calibervaed@gmail.com.

Caliber Virginia, formerly known as the Association for Community-Based Service Providers (ACBP), was established in 2006 to provide support, resources, and information with a united, well-informed and engaged voice among the community-based behavioral and mental health service providers of the Commonwealth. Caliber Virginia represents organizations that provide health and human services and supports for children, adults, and families in the areas of mental health, substance use disorders, developmental disabilities, child and family health and well-being, and other related issue areas.  Its member providers deliver quality health and human services to over 500,000 of Virginia’s residents each year. Caliber Virginia promotes equal opportunity, economic empowerment, independent living, and political participation for people with disabilities, including mental health diagnoses.

Programming Note:

Listen to Knicole Emanuel’s live reporting on this story Monday, Sept. 23, 2019, on Monitor Monday, 10-10:30 a.m. EST.

First published on RACMonitor

Your Medicare Reimbursements Are Your Property Rights

As a Medicare/caid health care provider, you have a property right to your reimbursements for services rendered that were medically necessary.

Why does it matter if your Medicare/caid reimbursements constitute property rights? If you have a property right to something it cannot be taken from you without due process of law. Due process equals a fair hearing and notice. If you have a property right in something then it cannot be usurped from you. For example, since I own my house, you cannot come to my house and claim ownership, even as a squatter. I am afforded due process for my right to my property. Similarly, when you provide Medicare services that are medically necessary and properly completed, your reimbursements for such services cannot be withheld without due process. This means that many rules and regulations across the nation may be unconstitutional.

One of the questionable laws comes into light under many managed care catchment area’s (MCOs) closed network system, which comprises the majority of managed care in America, as well as Medicare Administrative Companies (MACs). MCOs and MACs act as if it are the judge, jury, and executioner when it comes to payments. But, according to the constitution and property rights, Medicare/caid reimbursements are not based on a subjective review by a government contractor.

The ultimate victims in unfair, premature, or erroneous terminations from Medicare or Medicaid programs are the recipients. Often there are too few providers who accept Medicare and Medicaid in certain areas. The other victims in a wrongful termination is the provider and its staff. While the adverse consequences of an unjust termination has minimal to no unfavorable results to the government.

Under numerous Supreme Court holdings, most notably the Court’s holding in Board of Regents v. Roth the right to due process under the law only arises when a person has a property or liberty interest at stake. See also Bowens v. N.C. Dept. of Human Res.

In determining whether a property interest exists a Court must first determine that there is an entitlement to that property. Cleveland Bd. of Educ. v. Loudermill. Unlike liberty interests, property interests and entitlements are not created by the Constitution. Instead, property interests are created by federal or state law and can arise from statute, administrative regulations, or contract. Bowens.

Specifically, the Fourth Circuit Court of Appeals has determined that North Carolina Medicaid providers have a property interest in continued provider status. Bowens, 710 F.2d 1018. In Bowens, the Fourth Circuit recognized that North Carolina provider appeals process created a due process property interest in a Medicaid provider’s continued provision of services and could not be terminated “at the will of the state.” The Court determined that these due process safeguards, which included a hearing and standards for review, indicated that the provider’s participation was not “terminable at will.” The Court held that these safeguards created an entitlement for the provider, because it limits the grounds for his/her termination such that the contract was not terminable “at will” but only for cause, and that such cause was reviewable. The Fourth Circuit reached the same result in Ram v. Heckler, two years later. I foresee the same results in other Court of Appeals’ jurisdiction.

Since Ram, North Carolina Medicaid provider’s right to continued participation has been strengthened through the passage of Chapter 108C. Chapter 108C expressly creates a right for existing Medicaid providers to challenge a decision to terminate participation in the Medicaid program in the Office of Administrative Hearings (OAH). It also makes such reviews subject to the standards of Article 3 of the APA. Therefore, North Carolina law now contains a statutory process that confers an entitlement to Medicaid providers. Chapter 108C sets forth the procedure and substantive standards for which OAH is to operate and gives rise to the property right recognized in Bowens and Ram.

In another particular case, a MAC terminated a provider’s ability to deliver four CPT codes, which comprised of over 80% of the provider’s bailiwick and severely decreased the provider’s financial income, not to mention Medicare recipients lost their access to care and choice of provider.

The MAC’s contention was that the provider was not really terminated since they could still participate in the network in ways. But the company was being terminated from providing certain services.

The Court found that the MAC’s contention that providers have no right to challenge a termination was without merit. And, rightfully so, the Court stated that if the MAC’s position were correct, the appeals process provided by law would be meaningless. This was certainly not the case.

The MAC’s contention that it operates a “closed network” and thus can terminate a provider at its sole discretion was also not supported by the law. No MAC or MCO can cite to any statute, regulation or contract provision that gives it such authority. The statutory definition of “closed network” simply delineates those providers that have contracted with the LME-MCOs to furnish services to Medicaid enrollees. The MAC was relying on its own definition of “closed network” to exercise complete and sole control and discretion which is without foundation and/or any merit. Nothing in the definition of “closed network” indicates that MACs or MCOs have absolute discretion to determine which existing providers can remain in the closed network.

It is well settled law that there is a single state agency responsible for Medicare and Medicaid, which equals the Center for Medicare and Medicaid Services (CMS). Case law dictates that the responsibility cannot be delegated away. A supervisory role, at the very least, must be maintained.

On the Medicaid level, 42 CFR § 438.214 entitled “Provider Selection” requires the State to ensure, through a contract, that each MCO/PIHP “implements written policies and procedures for selection and retention of providers.”). A plain reading of the law makes clear that MCOs that operate a PIHP are required to have written policies and procedures for retention of providers. Requiring policies and procedures would be pointless if they are not followed.

To the extent that a MAC or MCO’s policy states that it can decide not to retain a provider for any reason at its sole discretion, such a policy does not conform with Federal law and the State requirements.

On the Medicare level, 42 U.S.C. § 405(h) spells out the judicial review available to providers, which is made applicable to Medicare by 42 U.S.C. § 1395ii. Section 405(h) aims to lay out the sole means by which a court may review decisions to terminate a provider agreement in compliance with the process available in § 405(g). Section 405(g) lays out the sole process of judicial review available in this type of dispute. The Supreme Court has endorsed the process, for nearly two decades, since its decision in Shalala v. Illinois Council on Long Term Care, Inc., holding that providers are required to abide by the provisions of § 405(g) providing for judicial review only after the administrative appeal process is complete.

The MACs and the MCOs cannot circumvent federal law and State requirements regarding provider retention by creating a policy that allows it to make the determination for any reason in its sole discretion. Such a provision is tantamount to having no policies and procedures at all.