Category Archives: Medicaid Advocate

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.

NC Medicaid Reform … Part 5,439-ish

I hope everyone had a Merry Christmas or Happy Hanukkah! As 2023 approaches, NC Medicaid is being overhauled…again! Medicaid reform is never smooth, despite the State. NC is no different. When NC Medicaid reformed in 2013, I brought a class action lawsuit against Computer Science Corporation, which created NCTracks, and DHHS, NC’s “single state entity” charged with managing Medicaid. See blog.

The new start date for NC Medicaid Tailored Plans is April 1, 2023. Tailored Plans, originally scheduled to launch Dec. 1, 2022, will provide the same services as Standard Plans in Medicaid Managed Care and will also provide additional specialized services for individuals with significant behavioral health conditions, Intellectual/Developmental Disabilities and traumatic brain injury.

While the start of Tailored Plans will be delayed, specific new services did go live Dec. 1, 2022.

The following organizations will serve as regional Behavioral Health I/DD Tailored Plans beginning April 1, 2023:

Aetna is a managed-care provider, one of eight entities who submitted proposals for Medicaid managed-care services. The Committee issued its recommendations on January 24, 2019, which identified four statewide contracts for Medicaid managed care services to be awarded. On February 4, 2019, DHHS awarded contracts to WellCare of North Carolina, Inc. (“Wellcare”), Blue Cross and Blue Shield of North Carolina (“BCBS”), AmeriHealth Caritas of North Carolina (“AmeriHealth”), and UnitedHealthcare of North Carolina, Inc. (“United Healthcare”). DHHS also awarded a regional contract to Carolina Complete Health, Inc.

See below:

However, two private insurance failed to get awarded NC contracts.

Aetna, along with the two other entities who were not awarded contracts, protested DHHS’ contract by filing contested case petitions in the Office of Administrative Hearings (“OAH”). Aetna filed its contested case petition and motion for preliminary injunction on April 16, 2019. The Administrative Law Judge (“ALJ”) denied Aetna’s motion for preliminary injunction on June 26, 2019. The ALJ consolidated all three petitions on July 26, 2019. It rose to the Court of Appeals, where it was thrown out on a technicality; i.e., failure to timely serve Defendants. Aetna Better Health of N. Carolina, Inc. v. N. Carolina Dep’t of Health & Hum. Servs., 2021-NCCOA-486, ¶ 4, 279 N.C. App. 261, 263, 866 S.E.2d 265, 267.

The Court stated, “Here, Aetna failed to timely serve DHHS or any other party within the “10 days after the petition is filed” as is mandated by N.C. Gen. Stat. § 150B-46. Prior to serving DHHS, Aetna amended its Petition on 12 October 2020 and served its amended Petition the same day. Aetna argues “the relation-back provision of Rule 15(c) allows the service of an amended pleading where the original pleading was not properly served.” What a silly and mundane reason to have their Complaint dismissed due to the oversight of an attorney or paralegal…and a great law firm at that. Just goes to show you that technical, legal mistakes are easily done. This career in law in the Medicare/Medicaid realm is not simple.

The upcoming transformation in Medicaid will probably not be smooth; it never is. But we shall see if Medicaid reform 2023 works better than 2013 reform. We can hope!

Always Challenge the Extrapolation in Medicare Provider Audits!

Always challenge the extrapolation! It is my personal opinion that extrapolation is used too loosely. What I mean is that sample sizes are usually too small to constitute a valid representation of the provider’s claims. Say a provider bills 10,000 claims. Is a sample of 50 adequate?

In a 2020 case, Palmetto audited .0051% of claims by Palm Valley, and Palm Valley challenged CMS’ sample and extrapolation method. Palm Valley Health Care, Inc. v. Azar, No. 18-41067, 2020 BL 14097 (5th Cir., Jan. 15, 2020). As an aside, I had 2 back-to-back extrapolation cases recently. The provider, however, did not hire me until the ALJ level – or the 3rd level of Medicare provider appeals. Unfortunately, no one argued that the extrapolation was faulty at the first 2 levels. We had 2 different ALJs, but both ALJs ruled that the provider could not raise new arguments; i.e., that the extrapolation was erroneous, at the 3rd level. They decided that all arguments should be raised from the beginning. This is just a reminder that: (a) raise all defenses immediately; and (b) don’t try the first two levels without an attorney.

Going back to Palm Valley.

The 5th Circuit held that while the statistical sampling methodology may not be the most precise methodology available, CMS’ selection methodology did represent a valid “complex balance of interests.” Principally, the court noted, quoting the Medicare Appeals Council, that CMS’ methodology was justified by the “real world constraints imposed by conflicting demands on limited public funds” and that Congress clearly envisioned extrapolation being applied to calculate overpayments in instances like this. I disagree with this result. I find it infuriating that auditors, like Palmetto, can scrutinize providers’ claims, yet circumvent similar accountability. They are being allowed to conduct a “hack” job at extrapolating to the financial detriment of the provider.

Interestingly, Palm Valley’s 5th Circuit decision was rendered in 2020. The dates of service of the claims Palmetto audited were July 2006-January 2009. It just shows how long the legal battle can be in Medicare audits. Also, Palm Valley’s error rate was 53.7%. Remember, in 2019, CMS revised the extrapolation rules to allow extrapolations in 50% or higher error rates. If you want to read the extrapolations rules, you can find them in Chapter 8 of the Medicare Program Integrity Manuel (“MPIM”).

On RACMonitor, health care attorney, David Glaser, mentioned that there is a difference in arguments versus evidence. While you cannot admit new evidence at the ALJ level, you can make new arguments. He and I agreed, however, even if you can dispute the extrapolation legally, a statistical report would not allowed as new evidence, which are important to submit.

Lastly, 42 CFR 405.1014(a)(3) requires the provider to assert the reasons the provider disagrees with the extrapolation in the request for ALJ hearing.

Licensure Penalties, Plans of Corrections, and Summary Suspensions, Oh My!!

Most of you know that I also appear on RACMonitor every Monday morning at 10:00am eastern. I present a 3-minute segment on RACMonitor, which is a national, syndicated podcast that focuses on RAC audits and the casualties they leave in their wakes. I am joined on that podcast with nation Medicare and Medicaid experts, such as Dr. Ronald Hirsh, health care attorneys David Glaser and me, Tiffany Ferguson, who speaks on the social determinants of health and Matthew Albright, who presents on legislative matters. Other experts join in a rotating fashion, such as Mary Inman, a whistleblower attorney who resides in London, England, Ed Roche, an attorney and statistical wizard who debunks extrapolations, and it is hosted by my friend and producer, Chuck Buck and Clark Anthony and Chyann and others….

But there are other audits that wield similar dire results: OTHER THAN RAC, TPE, MAC, and ZPICs. Licensure audits, for example, can cause monetary penalties, plans of corrections, or even summary suspensions…OH MY!!! (A reference to The Wizard of Oz, obviously).

For hospitals and other health facilities, the licensure laws typically cover issues such as professional and non-professional staffing; physical plant requirements; required clinical services; administrative capabilities; and a vast array of other requirements. In most states, in addition to hospital licensure, full-service hospitals require other licenses and permits, such as laboratory permits, permits relating to hazardous wastes, food service permits, and transportation licenses for hospital-affiliated ambulances. Other residential healthcare facilities, such as nursing homes or behavioral health homes, are typically subject to similar requirements.

Penalties are brandished once audits ensue. Licensure audits do not possess the same financial incentives as RAC audits. In NC the entity that conducts licensure audits is DHSR, the Department of Health Service Regulation. DHSR is still under the umbrella of DHHS, which is the single state entity charged with managing Medicaid. Every State has a DHHS although it may be named something else. In New Mexico, the single state entity is called HSD or Health Services Department. In CA, the single state entity is called DHCS or Department of Health Care Services.

The entity in your State that conducts licensure audits will be under the umbrella of your State’s single State entity that manages Medicaid.

Penalties can be severe.

Summary suspensions occur in all 50 States. A summary suspension is an action in administrative law in which a judge suspends a provider’s license upon the receipt of allegations and prior to a full hearing on the matter. In general, the summary suspension is based on a finding that the suspension is necessary, given the allegations, to protect safety or public health. The summary suspension is a temporary, emergency ruling pending a full hearing on the allegations. For example, in Washington State WAC 170-03-0300(1)(a), permits summary suspension of a child care license by the Department where “conditions in the licensed facility constitute an imminent danger to a child or children in care.”

Imminent dangers can be alleged in hospitals, nursing homes, or residential facilities. I say “alleged” because an allegation is all it takes for a summary suspension to be bestowed. Allegations, unfortunately, must be defended.

Appeal! Appeal! Appeal! Be like Dorothy and get to the Wizard of Oz – no matter what, even if she has to defeat the Wicked Witch of the West!

Last year I had two residential facilities receive summary suspensions at the same time. What do you do if your facility receives a summary suspension?

PANIC.

Kidding. Do not panic. Contact your Medicaid attorney immediately.

Ultimately, we went to trial and defended these two facilities successfully.

CHIP v. Medicaid: What’s the Difference?

As you know, many States have expanded Medicaid. I am not saying whether that is good or bad. Just that some have expanded and some States have not. NC is one that has not expanded Medicaid. NC’s Department for Medicaid received a Waiver from CMS to extend Medicaid and the Children’s Health Insurance Program (CHIP) coverage for 12 months after pregnancy. As a result, up to an additional 28,000 people will now be eligible for Medicaid or CHIP for a full year after pregnancy in North Carolina. CMS gave its blessing or Waiver to 24 States. An estimated 361,000 Americans annually are now eligible for 12 months of postpartum coverage. If all states adopted this option, as many as 720,000 people across the United States would be guaranteed Medicaid and CHIP coverage for 12 months after pregnancy.

CHIP piggybacks Medicaid for children. Not adults. But so does EPSDT. The Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit provides comprehensive and preventive health care services for children under age 21 who are enrolled in Medicaid. As a hospital or any provider, if you serve children and get your claims denied, EPSDT should overturn your denials. Check your compliance department. If claims are getting denied for children 21 years of age or younger, then you should be disputing these denials based on EPSDT.

CHIP differs from Medicaid EPSDT. There can be premiums or cost sharing with CHIP. CHIP is also a pre-set amount; whereas, Medicaid EPSDT creates exceptions for those in need under 21.

CHIP was designed to cover children who fall outside of Medicaid eligibility, but who otherwise were not able to be insured through a family plan. This program vastly increased the number of children eligible for health insurance. However, CHIP is not governed by the same legislation as Medicaid and offers drastically different levels of coverage.

Certain states have different names for their Medicaid and CHIP programs. For example, in California, both programs are called Medi-Cal. In Georgia, Medicaid is called Georgia Medical Assistance, and their CHIP program is called PeachCare for Kids.

Medicaid and CHIP provide 51% of health care to our nation’s youth – more than 40 million children.

In the last few months, CMS has published numerous bulletins regarding the importance of EPSDT, especially germane to mental health.

Can Medicare/caid Auditors Double-Dip?

The issue today is whether health care auditors can double-dip. In other words, if a provider has two concurrent audits, can the audits overlap? Can two audits scrutinize one date of service (“DOS”) for the same consumer. It certainly doesn’t seem fair. Five years ago, CMS first compiled a list of services that the newly implemented RAC program was to audit. It’s been 5 years with the RAC program. What is it about the RAC program that stands out from the other auditor abbreviations?

We’re talking about Cotiviti and Performant Recovery; you know the players. The Recovery Audit Program’s mission is to reduce Medicare improper payments through the efficient detection and collection of overpayments, the identification of underpayments and the implementation of actions that will prevent future improper payments.

RACs review claims on a post-payment basis. The RACs detect and correct past improper payments so that CMS and Carriers, and MACs can implement actions that will prevent future improper payments.

RACs are also held to different regulations than the other audit abbreviations. 42 CFR Subpart F dictates the Medicaid RACs. Whereas the Medicare program is run by 42 CFR Subchapter B.

The auditors themselves are usually certified coders or LPNs.

As most of you know, I present on RACMonitor every week with a distinguished panel of experts. Last week, a listener asked whether 2 separate auditors could audit the same record. Dr. Ronald Hirsh’s response was: yes, a CERT can audit a chart that another reviewer is auditing if it is part of a random sample. I agree with Dr. Hirsh. When a random sample is taken, then the auditors, by definition, have no idea what claims will be pulled, nor would the CERT have any knowledge of other contemporaneous and overlapping audits. But what about multiple RAC audits? I do believe that the RACs should not overlap its own audits. Personally, I don’t like the idea of one claim being audited more than once. What if the two auditing companies make differing determinations? What if CERT calls a claim compliant and the RAC denies the claim? The provider surely should not pay back a claim twice.

I believe Ed Roche presented on this issue a few weeks ago, and he called it double-dipping.

This doesn’t seem fair. What Dr. Hirsh did not address in his response to the listener was that, even if a CERT is allowed to double-dip via the rules or policies, there could be case law saying otherwise.

I did a quick search on Westlaw to see if there were any cases where the auditor was accused of double-dipping. It was not a comprehensive search by any means, but I did not see any cases where auditors were accused of double-dipping. I did see a few cases where hospitals were accused of double-dipping by collecting DSH payments to cover costs that had already been reimbursed, which seems like a topic for another day.

NC Medicaid OVERHAULED!

NC Medicaid is getting a complete overhaul. Politically, everyone is lost and has no idea how this will work. Back in 2010-ish, when NC went to the MCO model, which we have now, hundreds of providers were not paid or had trouble getting paid until the “dust” settled, and the MCOs were familiar with their jobs. Providers continue to suffer nonpayment from MCOs.

The new model consists of two, separate models: (1) the Standard Plan; and (2) the Tailored Plan models.

What’s the difference?

The Tailored Plan

Applies to:

  • People who get Innovations Waiver services
  • People who get Traumatic Brain Injury (TBI) Waiver services
  • People who may have a mental health disorder,substance use disorder, intellectual /developmental disability (I/DD) or traumatic brain injury (TBI).

The Standard Plan

Applies to everyone else. It is normal, physical Medicaid.

December 1, 2022, is the “go-live” date for the Tailored Plans.

Unlike the MCO model, the Tailored Plan offers physical health, pharmacy, care management and behavioral health services. It is for members who may have significant mental health needs, severe substance use disorders, intellectual/developmental disabilities (I/DDs) or traumatic brain injuries (TBIs). Tailored Plans offer added services for members who qualify. DHHS is trying to distance itself from any Medicaid administration by hiring all these private companies to manage Medicaid for DHHS. DHHS has to get federal Waivers to do this.

The MCOs are taking on a new function. Starting December 1, 2022, the MCOs will be managing physical care, as well as mental health and substance abuse.

I see this HUGE change as good and bad (isn’t everything?). The good side effect of this transition is that Medicaid recipients who suffer mental health and/or substance abuse will have their physical health taken care of by the same MCO that manage their mental health and/or substance abuse services. Despite, this positive side effect, we all know that whenever NC Medicaid is OVERHAULED, consumers fall between cracks on a large scale. Let’s just hope that this transition will be easier than past transitions.

Dave Richard, Deputy Secretary NC Medicaid, NCDHHS, gave a presentation today for the NCSHCA. He said that the transition to MCOs was rocky. What does he think will happen when we transfer to the Tailored Plan?

I think I may ask him whether he thinks whether the MCOs are doing a good job, presently.

He’s a great presenter.

He said that the hospitals have come together in the last 4 weeks. He said that we will see something in the media on Monday.

He wants to expand Medicaid because his agency DHHS would be awarded $1.5 Billion over the course of 2 years. Of course, he wants to expand. He has no idea that the MCOs are “terminating at will” providers within the catchment areas in a disproportionate and discriminatory way.

We are close to expansion, he said. 80%, he guessed. “Expansion is really important.”

Not if there are not enough providers.

I did not ask him my question.

Today Mr. Richard had to get a bunch of data from the “new plans.” We are 2 1/2 months away, and he said they are not prepared yet, but hopes to be prepared by December 1, 2022. They still have the discretion to “pull the plug.” He’s worried about a lot of providers who have invested a lot of money to get compliant and ready for the transformation – that they won’t get paid.

“We have 5 really, strong Standard Plans,” he said. Most Medicaid recipients will choose the 5 Standard Plans,

Attorney from the audience: “We have to raise reimbursement rates.” There is a staffing crisis, the attorney, emphasized.

Mr. Richard stated that there will be a raise, but no indication of how much.

Finally, I did ask him his opinion as to whether he thinks the MCOs are doing better now than when the transformation happened (back in 2010-ish).

He said, that nothing is perfect. And that other Medicaid Deputy Secretaries think very highly of NC’s program. I wonder if he’ll run for office. He would win.

The guy next to me asked, “What is the future of the Tailored Plans when they go out of business in 4 years?”

Mr. Richards said that there needed to be competition for being the “big dogs.”

NC Medicaid: Are MCOs Biased?

Since the inception of the Medicaid MCOs in North Carolina, we have discussed that the MCO terminations of providers’ Medicaid contracts have consistently and disproportionately been African American-owned, behavioral health care providers. Normally the MCOs terminate for “purported various reasons,” which was usually in error. However, these provider companies had one thing in common; they were all African American-owned. On this blog, I have generally reported that MCO terminations were just based on inaccurate allegations against the providers. The truth may be more bias. – Knicole Emanuel

George Floyd; Breyonna Taylor; Eric Garner; Tamir Rice; Jordan Davis, these are all names that we know, all-too-well, for such horrendous reasons.  Not for the brilliance, that these young African-American men and women possessed; nor for the accolades they had accumulated throughout their short-lived experiences on this earth.  We recognize these names through a disastrous realization that brought communities and our nation together for a singular purpose; to fight racism. 

A global non-profit organization, United Way, recognizes four types of racism.

  1. Internalized Racism—a set of privately held beliefs, prejudices, and ideas about the superiority of whites and the inferiority of people of color.
  2. Interpersonal Racism—the expression of racism between individuals.  Occurring when individuals interact and their private beliefs affecting their interactions.
  3. Institutional Racism—the discriminatory treatment, unfair policies and practices, and inequitable opportunities and impacts within organizations and institutions, all based on race, that routinely produce racially inequitable outcomes for people of color and advantages for white people.
  4. Structural Racism—a system in which public policies, institutional practices, cultural representations and other norms work in various, often reinforcing, ways to perpetuate racial group inequality.

These various types of racism can be witnessed in every state, city, county, suburb, and community, although it isn’t always facially obvious. Racism can even be witnessed in the health care community.  Recently in 2020, NC Governor Roy Cooper signed executive order 143 to address the social,  environmental, economic, and health disparities in communities of color that have been exacerbated by the COVID-19 Pandemic. Machelle Sanders, NC Department of Administration Secretary,  was quoted stating that “Health inequities are the result of more than one individual choice or random occurrence—they are the result of the historic and ongoing interplay of inequitable structures, policies, and norms that shape lives.”  Governor Cooper went on to include that there is a scarcity of African-American healthcare providers, namely behavioral healthcare providers, available to the public. 

Noting this statement from the Governor of our great state, its troublesome to know that entities that provide federal funding to these healthcare providers have been doing their absolute best to rid the remaining African-American behavioral healthcare providers.  For years, Managed Care Organizations (“MCOs”) have contracted with these providers to fund the expenses pursuant Medicaid billing.  MCOs have repeatedly attempted to terminate these contracts with African-American providers without cause, unsuccessfully; until recently.  In the past few years, Federal Administrative Law Judges (“ALJ’s”) have been upholding “termination without cause” contracts between MCOs and providers.  This is nothing less of an escape route for MCOs, allowing them to keep the federal funds, that they receive each year based upon the number of contracts they have with providers, as profit.  This is an obvious incentive to terminate contracts after receiving these funds. Some may refer to this as a business loophole, while most Americans would label this an unconstitutional form of structural racism.  It has been estimated that 99% of behavioral healthcare providers in NC that have been terminated have ONE thing in common.  You guessed it.  They are African-American owned. Once terminated, most healthcare providers cannot operate without these Federal Medicaid Funds and, ultimately, are forced to close their respective practices.

Why is this not talked about? The answer is simple.  Most Americans who are on Medicaid don’t even understand the processes and intricate considerations that go into Medicaid, let alone the general public.  And what’s the craziest thing? The craziest thing is the fact that these Americans on Medicaid don’t know that the acts of racism instituted against their providers, trickle down and limit their ability to obtain healthcare services.  Think about it.  If I live in a rural town and have a healthcare provider that I know and love is terminated and forced to close, I lose access to said healthcare provider and must potentially go to an out-of-town provider.  The unfortunate fact is that most healthcare providers who operate with a “specific” specialty, such as autistic therapy, can have waitlists up to 12 months! The ramifications of these financially-greedy, racist acts of the MCOs ultimately affect the general population. 

A Medicare Mistake: Your Missing Contract

-written by Todd Yoho, my paralegal, who has worked closely with me for over a decade. He knows more about Medicare and Medicaid than he probably cares to, but no one could contest that he doesn’t know his stuff!

There is a film almost everyone in the legal field has seen at least once. A comedic drama from 1973 titled, The Paper Chase. It follows the journey of a first year law student at Harvard Law School, and his particular frustrations with his Contracts course and professor. Contracts are one of the first things a law student studies, and some attorneys spend their career reviewing, drafting, revising, and negotiating contracts. They are that important.

In the health care, provider world, contracts are the lifeblood of your company. Contracts are how you secure work, ensure rates for revenue, and contain vital information should someone act contrary to the contract. If you have a dispute with an entity, your first act should be to consult an attorney and provide them with a copy of your contract. There should be a section about dispute resolution, which you should carefully scrutinize before signing any contract. It may be mandatory arbitration, it may stipulate a particular venue, or it may cite specific rules and statutes that, if you are not an attorney, may read like obtuse, dense, “word salad” put together by people who do not have to live and operate under the very laws they enact.

But, what if you don’t have a copy of your contract? You signed it years ago, your business has moved several times, or it just disappeared in the hectic daily life of daily operations. Your recourse is that you have to ask the very entity you have a dispute with to provide you with a copy. We’ve seen providers in situations like this, and sometimes the other entity complies immediately. Other times they say it will take 30 days, or 60 days, and you are already on your heels. Without a copy of that contract, you and your attorney may not know what your first step towards resolution will be. Worse if you are on a time limit you don’t know exists.

So, what do you do to avoid this kind of situation? You need to have a document retention policy. Know how long you are required to keep documents, Create an important document archive in a secure location that you update every time you execute a business related document. And make a copy to be kept in a separate, secure location. Then make another copy. It used to be this could be a notebook, a folder, or a file box in your CEO’s office, manager’s office, or with another person trusted with corporate responsibility. A copy could be kept at the CEO’s home in a locked file cabinet. And it still could be. There’s nothing wrong with keeping a hard copy archive, but this is the digital era.

Because we are in the digital era, you should absolutely keep your archive backed up to the cloud. Cloud data services can be cheap, and will pay enormous dividends if you suffer a catastrophic document loss. But, you have to preserve them first. Don’t let them get misplaced. Much like your important family documents, your important business documents are vital pieces of information. You may not need them every day, but the day you do need them, you want to have them quickly and easily available. They are that important. You don’t want to find yourself at an inopportune moment chasing paper.  

Some helpful links include the following:

https://www.uschamber.com/co/start/strategy/how-long-to-keep-business-document

https://www.uschamber.com/co/run/technology/cloud-storage-security

Knicole here. Sorry for the duplicative links. I don’t know how to delete them.

Managed Care Ruins Medicaid and Terminates Providers at Whim!

If you receive a letter from CMS or your State Department terminating your Medicare or Medicaid contract, would that affect you financially? I ask this rhetorical question because providers’ rights to a Medicare or Medicaid contract or to reimbursements for services rendered is a split in the Circuit Courts. Thankfully, I reside in the 4th Circuit, which has unambiguously held that providers and recipients have a property right in reimbursements for services rendered, a Medicare/caid contract and the right to the freedom of choice of provider. If you live in the 8th Circuit Court of Appeals, I am sorry. You have no rights.

Usually when there is split decision among the Circuit Courts, the Supreme Court weighs in. But, it has not. In fact, it declined to opine. Timing is everything. A 4th Circuit court of Decision giving providers property rights requested the Supreme Court to weigh in and finally end this rift amongst the Circuits. But, sadly, Justice Ginsburg died on September 18, 2020. The Supreme Court declined to review the Fourth Circuit decision on October 13, 2020.  Justice Barrett was confirmed by the Senate on October 26, 2020 and was sworn in on October 27, 2020. So, the certiorari was denied – I assume – due to the vacant seat at the time.

In 40 States, managed care manages Medicaid. The contracts they write are Draconian, saying that either party may terminate at will for no cause but for convenience. Termination at will is all fine and good in the private sector. However, Medicare and Medicaid are highly regulated, and when tax dollars and access to care are at issue, property rights are created.

In NC State Court, against the judgment of the 4th Circuit, a November 5, 2021, unpublished case determined that providers have no property rights to a Medicaid contract and an MCO can terminate at whim. Family Innovations v. Cardinal Innovations Healthcare Solutions, No. COA20-681 (June 1, 2021). Unpublished decisions are supposed to carry no weight. Unpublished decisions are not supposed to be controlling. Citation is disfavored.

Yet, in a strange turn of events, our State administrative courts have rendered, in the last week and in violation of 4th Circuit and administrative case law, that the termination-at-will clause in the MCO contract that a provider is forced to sign stands and is enforceable. These were new Judges and obviously were not well-versed in Medicaid law. Both came from employment law backgrounds, which is completely different than the health care world. But their rash and uneducated decisions bankrupt companies and shut down access to care for medically necessary behavioral health care services.

The upshot? If you have managed care companies in charge of your Medicaid or Medicare contracts, review your contracts now. Is there a termination-at-will clause? Because if there is, you too could lose your contract at any time. Depending on where you reside, you may or may not have property rights in the Medicare Medicaid contract. This is an issue that the Supreme Court must decide. Too many providers are getting erroneously and discriminatorily terminated for no reason and given no due process.

We must bring litigation to thwart the Courts that uphold termination-at-will clauses. Especially, in the era of COVID, we need our health care providers. We certainly do not need the MCOs, which kill access to care.