Category Archives: Medicaid Advocate
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!
Knicole Emanuel Presents Webinar January 25, 2024!
A Guide to the RAT-STATS Statistical Software in Medicare and Medicaid
Hosted by: Lorman
Click here to register for the webinar on January 25, 2024, from 1:00pm-2:30pm!
Join Nelson Mullins Raleigh partner Knicole Emanuel for a webinar hosted by Lorman on Jan. 25., 2024. Emanuel will be a speaker at the session entitled “A Guide to the RAT-STATS Statistical Software,” where attendees will learn about key considerations in interpreting sample size results for how to interpret and critically assess key factors influencing the extrapolation process, how to apply theoretical knowledge through practical exercises using RAT-STATS, how to develop a critical mindset for evaluating the reliability and replicability of results; and informed decision-making.
This webinar is available to attend live with available credits for ACHE, HFMA, AHIMA, and NASBA. There will also be an OnDemand Course for this presentation available.
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.
There Is No Law to Be Perfect in Medicare; Just Self-Disclose!
We all know that there is no law, regulation or statute that medical records supporting payment by Medicare or Medicaid must be perfect. There is no mandatory 100% compliant standard. Because humans err. In light of the ongoing financial strain brought about by the pandemic and the constraints imposed by Congress on Medicaid coverage disenrollments, State Medicaid agencies are poised to explore additional audits to manage increasing Medicaid expenditures. Recent developments, such as additional flexibilities granted by CMS, suggest a shifting landscape in how States respond to these challenges.
Anticipating a more assertive approach by States in dealing with service providers, potential measures could include rate cuts and enhanced scrutiny through service audits. This prompts a crucial examination of States’ and providers’ rights under federal Medicaid law to audit service provisions and recover overpayments, a legally intricate and noteworthy domain.
Medicaid RAC Audits are governed by 42 CFR 455 Subpart F—Medicaid Recovery Audit Contractors Program. Other Medicaid alleged overpayments are dictated by 42 CFR Chapter 433.
To establish a foundational understanding, it’s essential to consider the mandate imposed by Congress in section 1902(a)(30)(A) of the Social Security Act. States are required to incorporate provisions in their Medicaid plans to “safeguard against unnecessary utilization of … care and services.” This underscores the federal interest in ensuring responsible use of matching funds, given the federal government’s financial contribution to the program.
A landmark case illustrating the complexities of this mandate is the 1999 decision by the Supreme Judicial Court of Massachusetts in Massachusetts Eye and Ear Infirmary v. Commissioner of Medical Assistance. The court evaluated Massachusetts Medicaid’s retrospective utilization review policy, emphasizing the need for meaningful definitions of terms like “inpatient” and “outpatient” to avoid arbitrary penalties on providers.
Moving to the realm of overpayments, CMS regulations, specifically at 42 C.F.R. § 433.316, provide guidance on how States should proceed when identifying overpayments. The regulations recommend written notification to providers, with states having the discretion to choose whether to notify in cases of suspected fraud. Furthermore, States are required to take “reasonable actions” based on state collections law to recoup overpayments, with a one-year timeframe to return the federal share of identified overpayments to CMS.
Determining when a State “discovers” an overpayment is a critical aspect outlined in the regulations. The discovery is pegged to specific events, such as the state contacting the provider, the provider notifying the state, formal initiation of recoupment, or a federal official identifying the overpayment. Significantly, the regulations focus more on CMS’s relationship with the state than on the state’s relationship with providers.
Recent legal precedents, such as the Wisconsin Supreme Court’s decision in Professional Home Care Providers v. Wisconsin Department of Health Services, underscore the need for states to operate within the bounds of their granted authority. In this case, the court rejected a Medicaid agency’s “perfection” policy, emphasizing that state law must align with CMS regulations in overseeing overpayment recovery.
As States grapple with revenue shortfalls exacerbated by the pandemic, the potential for increased efforts to recoup overpayments from providers looms large. Legal challenges, exemplified by recent decisions in Massachusetts and Wisconsin, underscore the delicate balance States must strike in these endeavors, emphasizing the limits within which they must operate as they navigate the complex terrain of Medicaid law and financial constraints.
Expect audits. Be ready to defend yourself. Self audits are so important. If you self audit and find a problem and self-disclose, you will not receive penalties. Self-disclosures are key. When I told a group of law students this key information, one asked, has you told a client to self-disclose and they refused? To which I said yes. One time. A female doctor informed me that she falsified 7 medical records, I said that she should disclose. She screamed at me in her language, fired me, and hired a new attorney and withheld the information about falsifying records.
She is jail currently.
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.
RAC Audits: If It Walks Like a Duck and Quacks Like a Duck, It Is a Duck!
Today, I am going to talk about RAC audits. I know what you are thinking…don’t you always talk about RACs? Of course, you are going to talk about RAC audits. No. Today, I’m taking this blog in a different direction.
I want to talk about secret, hidden RAC audits. As you are aware, the federal regulations limit RACs from going back more than 3 years to audit claims. Juxtapose the UPICs, TPEs, SMRCs, MACs, OIG, and even State Medicaid agencies. Everyone, but the RACs are allowed more than a 3-year lookback period. Some, like OIG, have long lookback periods. Coincidentally, when a company responds to an RFP or a request for proposal from CMS to act as CMS’ vendor to conduct Medicare audits on America’s Medicare providers, a clause in the proposed contract between CMS and the vendor is highly argued or negotiated. Which clause in the vendor’s contract is most negotiated? I will tell you. The clause that states that the vendor is a RAC is most negotiated. Because if the vendor is called a UPIC instead of a RAC, the vendor has a longer lookback period. Being called a UPIC, suddenly, becomes a commodity. There are no laws mandating UPICs to a 3-year lookback period. All of a sudden, it is not hip to be a RAC.
Look into it. Do your research. The contracts are public record. Ask for Cotiviti’s contracts with CMS. Notice I said contracts, not contract. What I have realized over time is that a vendor may be hired by CMS to be a RAC auditor, but, once the vendor realizes the limit of 3 years, it goes back to CMS and asks if it can be considered an UPIC. Why? A UPIC can do everything that a RAC does; however, it gets an additional 3 years to lookback at claims and that means money. Cha-ching! Even Dr. Ron Hirsh commented today on RACMonitor about this story, which I presented this morning at 10:00am, as I present every Monday morning, live, on the national podcast RACMonitor , hosted by Chuck Buck and produced by MedLearn. If you want to listen to the podcast, click the following link: Nelson Mullins – Monitor Mondays Podcast Featuring Knicole Emanuel; Defeating Statistical Extrapolations, Expansion of Medicaid RACs, IPPS Final Rule, Smart Hospitals, and Physician Advisors Episodes
The podcast is also on video, but I don’t know how to view that. If you do, you would see my baby duck Biscuit on the screen. He joined me this morning to talk about, “What Walks Like a Duck and Quacks Like a Duck, Must be a Duck.” Dr. Hirsh commented that companies like Cotiviti have many, many contracts deeming Cotiviti many different acronyms. If you get a letter from Cotiviti, do not assume it is acting as a RAC. Instead, ask for the contract which allows Cotiviti to do what it purports to want to do.
I’ve noticed this trend in real life, but only for 10-20 individual cases, maybe 30. I have not had the time to draft a FOYIA request, and, quite frankly, my name on a FOYIA request nowadays result in a response that says, something to the effect of, use discovery instead. Even though my personal experiences should not be extrapolated across the country because that would be inappropriate and judgmental, I will give an example and you may extrapolate or not. There is a company that has been doing RAC audits in NC for the last 5-8 years. It is called Public Consulting Group (“PCG”). PCG and I go way back. If you are a longtime listener of RACMonitor, you will recall that Ed Roche and I presented numerous podcasts about the debacle in NM in 2013. The State of NM put 15 Medicaid providers who constituted 87.6% of the BH providers in NM at the time. The consequences were catastrophic; thousands were out of BH services overnight. There is even a documentary about the unraveling of BH in NM in 2013. The reason that these 15 BH providers were put out of business overnight was because of a NM vendor called PCG. PCG issued a report to NM after conducting Medicaid audits on these 15 BH facilities, which accused the 15 facilities of fraud. In 2013, PCG was considered a RAC per contract. Today, when I have a case against PCG and make the 3-year lookback period argument, I get a retort that it’s not a RAC. Instead it’s a UPIC.
To which I say, if it walks like a duck and talks like a duck, it is a duck.
What To Do When Your Doctor Fails To Doctor?
Not everyone loves their job. Not everyone has a job. Not everyone does their job. And that includes doctors and lawyers. Not all doctors and lawyers do their jobs well. When a doctor fails to doctor, where does the liability lie? On the facility? On the hospital?
That is exactly what happened in one of my cases. My client, an inpatient substance abuse facility, hired a physician. Upon hire, the doctor signed an employment agreement that stated that he or she would perform the role as a doctor/medical director for the facility. Years passed. There were no complaints, so the executive committee was under the impression that the doctor was fulfilling his duties. The members certainly had no reason to suspect that the doctor was not doctoring according to the employment contract. No, they assumed that a doctor would doctor.
Then a RAC audit happened. As you are well aware, RAC audits go back three years. The facility received a Tentative Notice of Overpayment from the RAC alleging the facility owed almost $10 million. I was hired, and I conducted a review of the facility, its policies, and interviewed all staff. It came to light that the doctor did not review the results of urinalysis tests. Remember, this is a substance abuse facility. Urine tests are essential. The Medicaid recipients provided the samples; they peed in a cup. The labs were ordered. The doctor has a standing order for definitive and presumptive urinalysis tests. The doctor has sole access to the test results electronically. We discovered, much to our horror, that the doctor never looked at the results. For the past three years, she has never informed any patient that they were or were not positive or negative for any substance. In my mind, reviewing the urinalysis results goes hand in hand with substance abuse therapy.
Here, we discovered a breakdown in the facility, but that breakdown was one person not doing his or her job. Sadly for him or her, we – the facility – were able to use the doctor’s failure to doctor to our advantage. We appealed the $10 million alleged overpayment. Our primary defense was throwing the doctor under the bus, and we had every right to do so. Who would have expected your medical director failing to direct or review pertinent tests. In the world of law, respondeat superior, normally, is the general rule. In Latin, respondeat superior means that the superior or the boss or the owner is responsible for those underneath them. In this case, the facility is the superior and the doctor is the inferior, so you would expect the facility to bear any liability of its employees. But, not here. Not in this case. The doctor failed to meet expectations of the job. By not reviewing urinalysis test results, the doctor veered enough off the track to relieve liability from the facility. The doctor’s inactions were the direct cause of the accusation of owing $10 million. The administrative law judge (“ALJ”) agreed. After terminating the doctor, we contemplated suing the physician for damages. However, since we won the alleged overpayment case, we did not do so.
