Category Archives: Access to Care
Two Success Stories: (1) Getting a Provider’s Suspension of Medicaid Reimbursements Lifted; and (2) NCSU Wins the ACC!
A quick shout out to NC State University, my undergraduate alma mater, who won the ACC Tournament, beating out #1 ranked UNC!!!
I love legal success stories too. Because when my team wins, health care providers win.
Well, my firm and I had a success that I must share amongst my blog readers. I gave this blog a live read on RACMonitor this morning on Monitor Monday, so if you want to hear me read it, go to wherever you listen to podcasts and search for RACMonitor. I present on RACMonitor every Monday morning and have done so for the last 10 years!
One of my clients, a substance abuse facility, which provides SAIOP and SACOT services to the underserved in Idaho, is under civil and/or criminal investigation. The investigation began over two years ago, which is a material fact in this case. The substance abuse facility was being accused of health care fraud because it gave out gift cards and allegedly billed for services not rendered.
As for billing for services not rendered, we vehemently disagree, and the government has not provided any proof of such for the last 2 years. As for the gift cards, many of you may not know that in March 2022 the Office of Inspector General for the Department of Health and Human Services (OIG) published an Advisory Opinion in support of such activity. The OIG had published similar language in the past as well.
OIG stated that patient incentives (e.g. gift cards or cash equivalents) given as part of patients’ treatment plans are favorable and allowable. Though the OIG reiterated its concern that cash and cash equivalents given to patients can present substantial fraud and abuse risks, the OIG concluded that the arrangement presented a minimal level of risk.
For over two years, this company and its CEO have known that it is under civil and/or criminal investigation. The facility continues to provide medically necessary service throughout the investigation. Then, unexpectedly, on 12/22/2023, right before Christmas, facility receives a notice that the Department of Health Services, Division of Health Benefits has suspended the company’s Medicaid reimbursements. The company relies 100% on Medicaid.
The State does have the authority to suspend reimbursements. 42 CFR 455.23 states:
“(1) The State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part.”
The owner contacted me and explained that the company could not last 1 month without receiving Medicaid reimbursements for services rendered. It was catastrophic. His two facilities constitute over 24% of Idaho’s substance abuse facilities in the State. There would be a serious access to care issue, especially in southern Idaho.
I reviewed the Notice of Suspension, and appeal rights appeared there. I say it like I am astonished because I am astonished.
I have never seen appeal rights be given for “credible allegations fraud” under 42 CFR 455.23.
We appealed.
We won!
I argued threefold: (1) there is no credible allegation of fraud because the allegations that services were billed but not rendered is wrong and presenting gift cards is not illegal when dealing with substance abuse; (2) that nothing has changed since the investigation over two years ago, He has been rendering services during his investigation. Why now arbitrarily invoke a penalty on the facility when the government has been investigating for over two years. Why two years later suspend when seemingly nothing has changed. And (3) that the suspension was a violation of his due process.
Specifically, the court held that the State has had two years to investigate any allegations but for two years no action was taken, and no findings provided. Now, the State has decided to arbitrarily and capriciously suspend Medicaid payments to the provider. The suspension of Medicaid payments should be removed because the suspension is improper for a failure of there being any credible allegation of fraud. Additionally, the provider did not receive adequate notice and a chance for a hearing before the suspension action was taken. The suspension of payment is causing irreparable harm that will lead to the provider having to close their business of providing mental health and substance abuse services.
And just like that the suspension was lifted and the provider remains in business. I call that a win! And congratulations to NCSU Wolfpack! We were seeded #10, but ended up #1 of the ACC. We are seeded #11 in the Southern Division of the NCAA. And, yes, I chose NCSU to win the NCAA in my office pool. Go Pack! Can you pick me out from the below picture from 1994?
Or the one above from 1996?
Beyond Malpractice: Cultivating Trust and Safety in Health-Based Services
Today’s blog post is from a guest blog poster, Teresa Greenhill. Teresa Greenhill is the co-creator of MentalHealthforSeniors.com, which is dedicated to providing seniors with information on physical and mental fitness. Being a senior herself, Teresa, with some help from her granddaughter, manages the website as a way to keep her busy and help other seniors be active and happy in their golden years.
So, without further ado, Beyond Malpractice: Cultivating Trust and Safety in Health-Based Services. By Teresa Greenhill
Balancing providing individualized care and adhering to legal responsibilities is delicate in health-based businesses. As you strive to offer exceptional services, understanding and mitigating medical malpractice risks are crucial. This MedicaidLawNC.com article outlines practical strategies to ensure your business thrives on a foundation of trust, quality, and legal integrity.
Championing Continuous Education
Promoting continuous learning among your team, such as exploring the variety of available nurse practitioner programs online, is crucial in upholding top-notch healthcare standards. Acquiring a healthcare qualification via these programs can notably influence the well-being of both individuals and families, showcasing a dedication to exceptional care. Online educational initiatives enable professionals to balance full-time work with advancing their educational pursuits, reducing legal risks linked to outdated or ineffective treatments.
Ensuring Comprehensive Evaluations
Your journey to minimize legal risks begins with thorough assessments of each client’s health history and specific needs. This step is vital in crafting personalized care plans that address individual health goals and mitigate the risks of overlooking essential health details. By prioritizing detailed evaluations, you set a strong precedent for effective and legally sound care.
Fostering Transparency Through Informed Consent
Obtaining informed consent before initiating any services or treatments is more than a legal formality; it’s a cornerstone of ethical practice. This process ensures clients are fully aware of their treatment plan’s potential risks and benefits, fostering an environment of transparency and mutual trust. Additionally, informed consent is a crucial legal safeguard, protecting your business from potential disputes related to consent.
Clarifying Contracts
Carefully crafted contracts are crucial for defining the scope of services, ensuring legal protection, and maintaining clear expectations between providers and clients. These agreements serve as a foundational element for transparent and accountable relationships. Additionally, using this intuitive tool for completing forms online simplifies administrative tasks. This convenience allows your clients to sign and fill out PDF forms online without the need to print anything, enhancing both the client experience and the legal robustness of your practice.
Adhering to Professional Boundaries
Operating strictly within your legally defined scope of practice is non-negotiable. This adherence not only upholds professional standards but also protects your business from the legal repercussions of overstepping professional boundaries. Ensuring that all practitioners within your company understand and respect the limits of their professional capabilities, you safeguard your practice against potential malpractice claims.
Implementing Quality Control Measures
Robust quality control measures are essential for monitoring the efficacy and safety of your services. Regular assessments and updates to care protocols ensure that your practice remains aligned with the highest standards, safeguarding your clients and your business against the consequences of substandard care. These measures include periodic training for staff to ensure adherence to updated protocols and the use of advanced technology to track and improve treatment outcomes, further enhancing the reliability and safety of patient care.
Prioritizing Patient Feedback
Establishing efficient mechanisms for receiving and addressing patient feedback and complaints is critical. Such systems enable you to identify and rectify any issues promptly, maintaining your clients’ trust and satisfaction. Moreover, open lines of communication can serve as an early warning system for potential legal issues, allowing for swift resolution and continuous improvement.
Proactive Risk Management
Implementing proactive risk management strategies is essential for identifying and mitigating potential risks in patient care. By assessing vulnerabilities preemptively and adjusting protocols accordingly, you protect your business from legal liabilities and reinforce your commitment to providing safe and effective care. This approach involves regular review of treatment methods, consultation with legal and medical experts to stay ahead of regulatory changes, and establishing a responsive system for addressing any issues that arise, ensuring continuous improvement in patient safety and care quality.
Conclusion
Navigating the complexities of medical practices within health-based businesses demands a careful balance between personalized care and legal diligence. By implementing thorough assessments, obtaining informed consent, adhering to professional boundaries, championing continuous education, enforcing quality control, prioritizing patient feedback, clarifying contracts, and engaging in proactive risk management, you can build a practice that thrives on excellence, trust, and legal integrity. In doing so, you safeguard your business against medical malpractice and affirm your dedication to the highest standards of care.
Would you like to inform yourself about all things Medicaid or Medicare? Visit MedicaidLawNC.com today!
In Medicare Provider Audits, the Best Defense Is a Good Offense
Today I want to discuss upcoming 2024 audits. It has been almost four years since the world shut down due to COVID. Life has been divided into “before COVID” and “after COVID.” Before COVID, the Centers for Medicare and Medicaid Services (CMS) aggressively pursued audits against durable medical equipment suppliers, home health, hospice, behavioral health, long term care facilities and hospitals. When COVID hit, most audits were paused. But not for long. As you know, CMS resumed its audit activities as early as August 2020. However, in the world of COVID, there were exceptions to every rule, many of which were state specific. Even exceptions had exceptions. It is imperative that you maintain for your type of health care service every policy, exceptions, bulletins, advisory opinions from 2020 through the present. If you have not assigned this task to someone in your facility, do it today.
We have seen an uptick in increased audit activity with pneumonic compression devices (PCDs). PCDs were not listed in the top error rates for the 2021 Improper Payment Report, but in the 2023 report, PCD’s have the second highest error rate behind oral cancer drugs at 78.9%. With an error rate that high, PCD’s will be a focal point of audits. Other items identified in the 2023 improper payment report for having high error rates include urological supplies, parenteral and enteral nutrition, manual wheelchairs, and various orthoses. These items will all see increased audit activity in the upcoming year. Basically, as long as the error rates remain high, audit activity will continue.
Surgical dressings have also been consistently audited. Surgical dressings are relatively a complex product to bill. DME suppliers of surgical dressings and physicians who order surgical dressings are seeing an uptick in denials. The 2021 Medicare fee for service supplemental improper payment report covering claims from July 1st, 2019, through June 30th 2020, listed surgical dressings as having the highest improper payment rate at 69.7%, followed closely by therapeutic shoes with an error rate of 67.9%. Since then, there has not been much improvement. The 2023 Improper Payment Report covering claims submitted between July 1st, 2021, and June 30th, 2022, shows the improper payment rate for surgical dressings is still at 62.1%. Therapeutic shoes did show some improvement with an improper payment rate of 51.4%, but this is still significant. For the 2023 reporting period, insufficient documentation accounted for 82.4% of improper payments for surgical dressings. Other types of errors for surgical dressings were no documentation at 1.9%, medical necessity at 1.7%, incorrect coding at 1.9% and other at 12.2%.
Targeted Probe and Educate (TPE) were some of the first audits resumed by CMS. Recovery Audit Contractor (RAC) audits are also increasing. I consider RACs to be the bounty-hunters of Medicare and Medicaid. Audits of skilled nursing providers are going to see a hike this year, with a growing number of federal and state recovery audits adding to specialized compliance reviews announced last year. In 2023, regulators instituted audits of facilities using potentially inappropriate diagnosis of schizophrenia as well as a new, 5-claim audit of every US nursing home that was specifically meant to root out improper payments. CMS came under additional pressure this past summer. That’s when the Government Accountability Office said the agency needs to do a better job of recouping overpayments. What do we think CMS will do in light of the GAO instructing the agency to do a better job recouping? The answer is: audit more. But, as they say in football, the defense is a good offense. The same is true in Medicare and Medicaid provider appeals. Be prepared.
CMS Issues Interim Rule in Response to State Medicaid Disenrollment Trend
When the COVID-19 Public Health Emergency (PHE) ended in April 2023, the Families First Coronavirus Response Act’s Medicaid continuous enrollment condition also came to an end. The condition had allowed States to claim a temporary monetary incentive for not disenrolling persons enrolled in Medicaid during the PHE, among other conditions. When this monetary incentive disappeared, many States moved quickly to disenroll recipients from the Medicaid program. In response to this trend, the Centers for Medicare & Medicaid Services (CMS) published an interim final rule (Rule) on Dec. 6, implementing reporting requirements and enforcement authorities created by the Consolidated Appropriations Act of 2023.
The Rule seeks to limit the extent to which states are removing Medicaid recipients from the program by instituting punishments for states that kick recipients out of the program for procedural reasons as opposed to eligibility considerations. For example, some states had been using procedural or administrative issues, such as the failure to renew within the required timeline or not updating contact information, as justification for disenrollment. Any noncompliance or failure to reinstate eligibility for affected individuals could subject the state to enforcement authorities, including requiring states to submit and participate in a corrective action plan, suspending disenrollments from Medicaid for procedural reasons, imposing fees on the state via civil money penalties, and applying a reduction to the State’s Federal Medical Assistance Percentage.
In order to promote transparency and hold States accountable for adhering to redetermination requirements, the Rule also requires that States submit to CMS a report on the activities of the State relating to eligibility redeterminations conducted between April 1, and June 30, 2024. The reports require several specific data elements, such as the number of eligibility renewals initiated or the number of individuals determined eligible for a qualified health plan, and CMS intends to make such reports public. Failure to follow reporting requirements could similarly result in enforcement actions taken against the State by CMS, including the application of a reduction to the State specific FMAP.
The regulations became effective on December 6, with public comments due by February 2, 2024. If you have questions about implications or requirements associated with the Rule, reach out to one of the authors.
By Cara N. Ludwig, Knicole Emanuel, Shane M. Duer, JD, CIPP/US
Medicaid Expansion Set To Take Effect In North Carolina Today!
The AP (11/30, Schoenbaum) reports that “hundreds of thousands of adults in North Carolina” are set to receive Medicaid benefits, “a development that boosters say will aid hospitals and local economies in addition to the long-term uninsured.” As of Friday, “more than 600,000 North Carolinians are ultimately expected to qualify, with roughly half to be automatically enrolled.” The AP notes that “a 2022 report from the National Center for Health Statistics estimated North Carolina’s uninsured population at 17.6%, significantly above the national average of 12.6%.”
NC Medicaid Providers Lost Their Property Right in the Continued Participation in Medicaid, According to COA
According to the 4th Circuit Court of Appeals, health care providers possess a property right interest in the continued participation in Medicare and Medicaid. Nationally, the Circuits are split. The rule is, at least in the 4th Circuit, that termination for cause of a provider’s Medicaid contract is allowed, if the cause is correct and the provider was afforded due process. On October 5, 2023, the NC Court of Appeals deviated from legal precedent and ruled no property right exists in B&D Integrated Services v. NC DHHS and its agent Alliance. The COA held that Alliance, a managed care organization (“MCO”) could terminate any provider for any cause at any time for any reason. The 4th Circuit and I beg to differ. I read the Decision, and the Petitioner, unfortunately, according to the Decision, failed to argue that it has a property right in continued participation in Medicaid. I have no earthly idea why Petitioner argued what it did, which is that OAH has no jurisdiction over provider appeals and the OAH decision should be vacated. I have no idea why Petitioner thought that was a good argument. I don’t know if arguing the property right argument would have resulted in a victory, but, to me, it is the most compelling argument. Petitioner failed to argue that MCOs are paid by the tax payor; MCOs are not private companies, so MCOs are agents of the State and must follow pertinent regulations. Instead, Petitioner argues that OAH does not have jurisdiction???? Curiouser and curiouser.
That was not the right argument to make.
And now, unless the General Assembly changes the law, B&D Integrated Health Services v. NC DHHS and its agent Alliance Health, holds that “Alliance was contractually allowed to terminate the contract, with or without cause or for any reason, upon 30 days’ notice.” Which is precisely what I have argued against for the last 15 years or so. See blog. And blog. And blog.
These MCOs are bequeathed a fire hose of tax dollar money and whatever they don’t spend, they keep for bonuses for the executives. Therefore, it is in the MCOs’ financial best interest to terminate providers, which means all the terminated providers’ consumers are immediately cut-off from their Medicaid services, and the MCO saves money.
The following paragraphs are from a Decision from OAH holding that Medicaid contracts are NOT terminable at will:
“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, 470 U.S. 532 (1985). 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 v. N.C. Dept. of Human Res., 710 F.2d 1015, 1018 (4th Cir. 1983). Under North Carolina case law, 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 safeguards, which included a hearing and standards for review, indicated that the provider’s participation was not “terminable at will.” Id. The court held that these safeguards created an entitlement for the provider, because it limits the grounds for his 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, 792 F.2d 444 (4th Cir. 1986) two years later. Since the Court’s decision in Bowen, a 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. 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. Under Chapter 108C, providers have a statutory expectation that a decision to terminate participation will not violate the standards of Article 3 of the APA. The enactment of Chapter 108C gives a providers a right to not be terminated in a manner that (1) violates the law; (2) is in excess of the Department’s authority; (3) is erroneous; (4) is made without using proper procedures; or (5) is arbitrary and capricious. To conclude otherwise would nullify the General Assembly’s will by disregarding the rights conferred on providers by Chapter 108C. This expectation cannot be diminished by a regulation promulgated by the DMA which states that provider’s do not have a right to continued participation in the Medicaid program because under the analysis in Bowen the General Assembly created the property right through statutory enactment.” Carolina Comm. Support Serv, Inc., at 22.
Carolina Comm. Support Serv., Inc. v. Alliance Behavioral Healthcare, 14 DHR 1500, April 2, 2015.
ALJ Decisions determining a property right exists went on to be upheld by the 4th Circuit. However, this new NC COA decision, B&D Integrated Health v. NC DHHS, threatens all providers. The reason that termination at will does not work for Medicare and Medicaid versus a private companies’ right to terminate:
- These are our tax dollars, not private money.
- It allows discrimination.
- It allows subjectivity.
- It allows bias.
- It allows an entity to overnight prevent consumers from receiving medically necessary health care services.
- It allows for an entity to, overnight, cause hundreds of staff members to lose their jobs.
B&D Integrated Health v. NC DHHS is a bad decision for health care providers. The Petitioner lost its case because it made the wrong argument. Its argument that administrative courts have no jurisdiction was a losing argument. Now State and federal contractors have more power to be subjective and discriminatory.
Now we have NC case law in State Court that fails to follow federal case law in the 4th Circuit.
Amidst Medicaid Expansion, Provider Shortages Skyrocket!
From February 2020 through March 2023, enrollment in Medicaid increased by 35.3 percent, or over 22 million individuals. Enrollment in Medicaid increased in every State during COVID. Concurrently, many States report a shortage of providers willing to accept Medicaid. Today NC will be announcing its Medicaid expansion, so the nationwide numbers will rise in the near future. However, as we are introducing over 22 million Americans to Medicaid, the number of physicians, oral surgeons, BH providers, or any health care provider type who accept Medicaid is not increasing. In many places, providers who accept Medicaid is shrinking. See blog.
For example, Arkansas expanded Medicaid in 2014, leading to a surge in Medicaid enrollees. While the expansion successfully reduced the state’s uninsured rate, it also highlighted the shortage of healthcare providers, especially in rural areas. Many residents in these underserved regions face long wait times to see a doctor, limiting their access to timely care.
Nationwide, access to mental health services has been a concern. Medicaid expansion aimed to provide mental health coverage to more people, but there has been a shortage of mental health professionals to meet the growing demand. In many states, there are waitlists regardless the crisis.
Providers continue to face insurmountable challenges. Such challenge is the burden of audits conducted by Recovery Audit Contractors (RACs), Medicare Administrative Contractors (MACs), and Targeted Probe and Educate (TPE) programs. These audits are designed to ensure that healthcare providers comply with the complex web of regulations governing reimbursement and patient care. However, the reality is that these audits often impose an overwhelming burden on providers and their attorneys, making compliance a Herculean task.
The healthcare industry in the United States is governed by a myriad of rules, regulations, and guidelines. From Medicare and Medicaid requirements to state-specific laws, providers must navigate a complex regulatory maze to ensure compliance. RACs, MACs, and TPE programs scrutinize providers’ billing practices, medical necessity of services, and documentation to identify overpayments and potential fraud or abuse.
Healthcare providers, from hospitals to individual practitioners, must allocate significant resources to respond to audits and maintain compliance. The burden starts with the anticipation of an audit, as providers are often left in the dark about when and how they will be audited. This uncertainty can be paralyzing, as it requires providers to divert time, personnel, and financial resources away from patient care to prepare for an audit that may or may not occur.
Once an audit is initiated, providers are faced with a deluge of demands. They must gather and submit an extensive amount of documentation, which can include patient records, billing records, and other relevant materials. The process is not only time-consuming but also disruptive to day-to-day operations. Smaller practices, in particular, may struggle to allocate the necessary personnel and resources to meet these demands, potentially affecting patient care quality.
One of the most significant challenges faced by healthcare providers and their attorneys is the ever-changing nature of healthcare regulations. Keeping up with the latest rules and guidelines is a daunting task, and providers must constantly adapt their practices to remain compliant. The complex interplay between federal and state regulations further complicates matters, as what is compliant at one level may not be at another.
Healthcare attorneys play a critical role in assisting providers through the audit process. However, we too are challenged by the intricate nature of healthcare regulations and the constant need to stay abreast of updates and changes. David would concur, I believe, in my statement that, being a health care regulatory attorney is not a laid-back, calm career choice. We have to continue to educate ourselves at quite a fast pace. Think about how often laws and rules change federally and in 50 States. Tomorrow I am going to Baltimore Maryland for the Fraud and Abuse Conference by the American Health Law Association. I will let you know if I learn anything mind-blowing.
The burden of RAC, MAC, and TPE audits in healthcare is undeniable. While these audits are essential to protect the integrity of the healthcare system, the complex regulatory landscape, coupled with the uncertainty and resource-intensive nature of the audit process, places an overwhelming burden on providers and their attorneys. Healthcare providers are in a constant struggle to balance compliance with the delivery of quality patient care, and their legal representatives are similarly tasked with navigating an ever-changing regulatory maze.
Addressing this burden requires a collaborative effort among stakeholders, including government agencies, healthcare providers, and legal experts. Streamlining audit processes, providing clearer guidance, and ensuring that audits are conducted fairly and transparently can go a long way in alleviating the burden on providers. In the end, the goal should be to strike a balance between safeguarding taxpayer dollars and allowing healthcare providers to focus on what they do best – caring for patients. Or maybe we just need a computer program for audits that is NOT Excel.
NC Medicaid Expansion: More Consumers, Not More Providers!
Republican-run Congress passed Medicaid expansion today, March 23, 2023.
Today North Carolina took a commendable step forward in healthcare by expanding Medicaid to cover more low-income individuals. Now there are 10 States that have not expanded Medicaid. This decision will provide much-needed healthcare coverage to over 600,000 people in the state who previously did not have access to affordable healthcare. North Carolina has 2.9 million enrollees in traditional Medicaid coverage. Advocates have estimated that expansion could help 600,000 adults. In theory. On paper.
As a legal professional, I commend the North Carolina lawmakers for making this decision. The expansion of Medicaid will go a long way in improving the health and wellbeing of North Carolinians. It is well known that access to quality healthcare is critical for people to lead healthy and productive lives. By expanding Medicaid, the state is taking a proactive step towards ensuring that its citizens have access to the healthcare they need.
However, it is important to note that despite this expansion, many healthcare providers still do not accept Medicaid due to low reimbursement rates and regulatory burdens. This is a major issue that must be addressed if the benefits of the expansion are to be fully realized.
According to a report by the Kaiser Family Foundation, Medicaid patients often face significant challenges in accessing healthcare services due to a shortage of healthcare providers who accept Medicaid. In North Carolina, as of 2021, only 52% of primary care physicians accept Medicaid patients, while only 45% of specialists accept Medicaid patients. 600,000 North Carolinians will get a Medicaid card. A card does not guarantee health care services. See blog.
One area that has been severely impacted by the shortage of Medicaid providers is dental care. According to the American Dental Association, only 38% of dentists in the United States accept Medicaid patients. This has led to many low-income individuals going without essential dental care, which can lead to more serious health issues down the line. Remember, Deamante Driver? See blog.
Another area that has been impacted by the shortage of Medicaid providers is nursing homes. In many cases, nursing homes that accept Medicaid patients struggle to find healthcare providers willing to provide care to their residents. This can lead to residents going without essential medical care, which can have severe consequences.
Specialists are another area where the shortage of Medicaid providers is particularly acute. According to the Kaiser Family Foundation, only 45% of specialists accept Medicaid patients. This can be especially challenging for patients with complex medical needs, who often require specialized care.
The shortage of Medicaid providers is a complex issue that requires a multifaceted solution. One approach is to increase reimbursement rates for healthcare providers who accept Medicaid patients. This would incentivize more healthcare providers to accept Medicaid patients, thereby increasing access to healthcare services for low-income individuals.
Another approach is to reduce regulatory burdens for healthcare providers. This would make it easier for healthcare providers to participate in Medicaid, thereby increasing access to healthcare services for low-income individuals.
These statistics highlight the urgent need to address the issue of low reimbursement rates and regulatory burdens faced by healthcare providers. If more providers are incentivized to accept Medicaid patients, more people will have access to the care they need, and the benefits of the expansion will be fully realized.
In conclusion, North Carolina’s decision to expand Medicaid is a significant step forward in healthcare, and it should be applauded. However, it is crucial that policy change to incentivize providers to accept Medicaid. From dental care to nursing homes and specialists, low-income individuals who rely on Medicaid face significant challenges in accessing essential healthcare services.
Texas Medical Society Sues CMS Over 600% Spike in Administrative Fees
The Texas Medical Association (TMA) is challenging a 600% hike in administrative fees for seeking federal dispute resolution in the No Surprises Act (NSA) situations. The association seeks relief by filing a fourth lawsuit in the U.S. District Court for the Eastern District of Texas. The Texas Medical Society is the largest state medical society in the nation, even though it is the 2nd largest State followed by Alaska, representing more than 57,000 physicians and medical student members.
The hike only applies to out-of-network physicians or provider and a health plan payor. These situations occur when emergency services are provided by a doctor or health care provider outside of the patient’s insurance network or when out-of-network services are provided at an in-network facility.
The federal agencies set the initial administrative fee at $50 and announced in October 2022 it would remain at $50 for 2023. Two months later the agencies announced a 600% hike in the fee to $350 beginning in January 2023, “due to supplemental data analysis and increasing expenditures in carrying out the Federal IDR process since the development of the prior 2023 guidance.”
The steep jump in fees will dramatically curtail many physicians’ ability to seek arbitration when a health plan offers insufficient payment for care.
The reason that I know the TX Medical Society filed this lawsuit, because it just happened, is because I joined ASMAC, which is the American Society of Medical Association Counsel. It’s an amazing association comprised of Presidents of State medical associations all of whom are lawyers trying to protect physicians. Kelly Walla is the Vice President and General Counsel for the Texas Medical Association, and she circulated an email letting us know. She was a week late in circulating the email because, apparently, the power has been out in Austen.
The association claims that the new uptick in administrative fees violates the notice and comment requirements. I do have a personal question – if the association is successful and gets the fee requirement eradicated due to notice and comment violations, wouldn’t TX just reinstitute the hike in fees, but allow comments next time? If we really ask ourselves, do the comments matter? Who looks at them and do they carry any weight?
Since this hike only applies to out-of-network providers, I wonder if, in TX, the networks are closed. Closed networks means that, supposedly, the network has enough providers and it’s not accepting more providers. What network has “enough providers?” If the law states that everyone has the freedom to pick their provider of choice or “access to care,” then a closed network would fly in the face of that prospect. I have been successful in fighting “closed networks” in the past and gaining access to that “closed network.”
Going back to Texas, the rules include establishing the nonrefundable administrative fee all parties must pay to enter the federal independent dispute resolution (IDR) process in the event of a payment disagreement between an out-of-network physician or provider and a health plan in circumstances covered by the law. The suit lists two radiology groups as plaintiffs: the Texas Radiological Society and Houston Radiology Associated. These groups bill small value claims, so they will be particularly hurt because most claims billed are less than $350, according to the suit. Apparently, the Emergency Department Practice Management Association supports the association’s lawsuit. CMS’ reasoning for the hike is the backlog. But, making independent dispute resolution more expensive, when doctors have a right to IDR, in my opinion, is counterintuitive. Get more arbitrators. Don’t heighten your fences.
Advocates Split on the Benefit of Banning Non-Compete Clauses!
The Federal Trade Commission (“FTC”) unilaterally issued a Proposed Rule to ban non-compete clauses in employment contracts. See blog. The first question is: Does the FTC have the legal authority to ban non-compete clauses? As a member of the American Society of Medical Association Counsel (“ASMAC”), the president, Greg Pepe, sent out an informal questionnaire to solicit comments by health care attorneys and heads of medical societies.
Greg said, “The respondents were split 50%/50% between medical society attorney members and private practice attorneys who are members. In general, the most common threads were as follows:
- The most common comment was that non-compete provisions in physician employment contracts impede the physician/patient relationship. This comment came up over and over in a number of ways.
- A few comments pointed out that rural areas were disproportionately harmed by non-competes, with physicians having to move away to comply.
- Hospital-based physician groups need non-competes to protect their arrangements.
- Exemptions for non-profits is a loophole that eviscerates the effort.
- ASMAC should be mindful of the divergent interests of its members and their client when considering this kind of commentary.
Very few people offered specific examples of the ways non-competes in physician contracts harmed physicians. If your organization takes steps to comment please keep ASMAC advised.”
I decided that ASMAC’s findings, even if informal, were important enough to post here on my blog. So, thank you, Greg, for heading this up.
I would like to pay particular attention to #4. Because, a week or so ago, I presented on RACMoniter the story about the FTC banning non-compete clauses, but failed to acknowledge the exemptions for non-profits, which is a HUGE exception. There are 6093 hospitals in the U.S. 1228 of the 6093 hospitals are for profit. The vast majority of hospitals are either government run or non-profit. If you notice above, the “anti-banning comment of non-competes” came from hospital-based physician groups (#3). That makes sense.
Most people, when asked, touts that non-compete agreements impede physician-patient relationships. Personally, as an attorney, non-compete agreements represent requiring me not being able to work at another law firm if I decided Practus, LLP, did not work out. Similarly, if I had attended med school and was working at a hospital in Angier, NC, which was in close proximity to my home, and received a better offer at a nearby hospital, why should I be impeded from working? Obviously, families need to have an income, and what if the physician was the sole breadwinner? The non-compete agreement could really adversely affect a family.
Non-compete agreements, also called restrictive covenants, are an increasingly common requirement for employment in many sectors, including health care. Sometimes non-compete agreements appear as a clause within a contract. Other times, they are separate contracts in and of themselves. Though common, the terms of non-compete agreements vary greatly.
Most people, even physicians, when presented with a contract, “fake” review the contract, and sign without digesting – or even reading – the material. Many don’t even know that a non-compete clause exists in their contracts. Until it’s too late.
Will the FTC’s Proposed Rule become permanent? So far, there have been 4.91k comments. One anonymous person posted: “I am completely in favor of forbidding noncompete agreements.” A woman posted: “I am a veterinarian and have worked close to 40 years. I have been an associate and a practice owner. I see no justification for non-competes and in fact feel it harms the entire profession. Non-competes are pervasive and notoriously difficult to fight. For many years now I have worked for corporations and have watched colleagues both attempt to negotiate non-competes and bear the brunt of legal battles if they attempt to challenge the non-compete. Should you really have to move your entire family to acquire a job? How do I harm a company by working for their competitor?”
A guy wrote: “These should’ve been banned a long time ago. Job mobility is important if we “really” believe in our economic system. Ban NDAs.”
A physician wrote: “As a physician I have suffered significant financial and personal hardship relating to a non-compete agreement. As a result of a non-compete I had to move across the country (twice). I suffered significant loss of income as a result of this not withstanding the expense of relocating twice within a year. My self and my family also suffered significant psycho-social ramifications and de-stabilization. I now also face another non-compete agreement that will essentially render me unable to leave my next position without tremendous harm to my life-long earning potential, credibly rendering me an indentured servant. The presence of a non-compete also removes any leverage an employee such as myself might have to negotiate agains unacceptable working or wage conditions.”
Unlike the commenters from ASMAC, which was split 50-50, it appears that many comments support banning non-compete agreements, but, remember, the not-for-profit exception!! The comment period is open through Mar 10, 2023.
