Category Archives: Medicaid Recipients Under 21

NC Medicaid: Waiver v. Non -Waiver Services – What’s the Difference?

There is a 4.9 year waiting list to receive a spot on the Innovations Waiver. The waiting list is unhelpful when you have a child or adult with severe developmental disabilities who needs Waiver services NOW. What services are available for the disabled who qualify for Waiver services, but have not received a spot on the Innovations Waiver yet?

For children (up to age 20), the alternative to the Innovations Waivers is the Community Alternatives Program for Children (CAP/C) 1915(c) Home and Community-Based Services (HCBS) waiver was approved by the Centers for Medicare & Medicaid Services (CMS). The waiver took effect March 1, 2017.

Here is a breakdown of services offered for the Innovations Waiver versus CAP/C:

Category CAP/C Waiver [1] NC Innovations Waiver [2]
Cost limit under waiver $129,000

(Section 5.7.3)

$135,000

(Attachment F)

Case Management 80 hours (320 units) per calendar year

(Appendix B)

Respite 720 hours/fiscal year

Each day of institutional respite counts as 24 hours towards the annual limit.

(Appendix B)

The cost of respite care for 24 hours cannot exceed the per diem rate for the average community ICF-IID Facility
Pediatric Nurse Aide Type, frequency, tasks and number of hours per day are authorized by the case management entity based on medical necessity.

(Appendix B)

In-Home Aide Type, frequency, tasks and number of hours per day are authorized by the case management entity based on medical necessity.

(Appendix B)

Financial Management Service Consumer-directed initiation fee must be assessed the first month of enrollment and shall not exceed 4 units (1 hour).  Monthly management fees shall be assessed each month and shall not exceed 4 units (1 hour) per month.

(Appendix B)

Financial Support Services are available and provider directed.
Assistive Technology Included in a combined home and vehicle modification budget of $28,000 per beneficiary per the cycle of the CAP, which is renewed every 5 years.

(Appendix B)

Limited to $50,000 (ATES and Home Modifications) over the life of the waiver period, 5 years

(Attachment C)

Community Transition Services To transition CAP beneficiaries from 90-day or more institutional setting;

 

One-time expenses, not to exceed $2,500 over the cycle of the CAP, 5 years.

(Appendix B)

To provide initial set-up expense for adults to facilitate transition from community living;

 

Life of the waiver limit of $5,000 per beneficiary.

(Attachment C)

Home Accessibility and Adaptation/Home Modifications Included in a combined home and vehicle modification budget of $28,000 per beneficiary per the cycle of the CAP, which is renewed every 5 years.

(Appendix B)

Home modifications are limited to expenditures of $50,000 of supports (ATES, Home Modifications) over the duration of the waiver, 5 years.
Goods and Services Not to exceed $800 annually (July-June)

(Appendix B)

Not to exceed $2,000 annually

(Attachment C)

Training, Education, and Consultative Services/Natural Supports Education Limited to $500 per fiscal year (July 1-June30)

(Appendix B)

Reimbursement for class and conferences limited to $1,000 per year

(Attachment C)

Vehicle Modification Included in a combined home and vehicle modification budget of $28,000 per beneficiary per the cycle of the CAP, which is renewed every 5 years.

(Appendix B)

Limited to $20,000 over the life of the waiver

(Attachment C)

Community Living and Support (allowing for a paraprofessional) Subject to limits on sets of services

(Attachment C)

 

For adult beneficiaries who live in a private home[3], no more than 84 hours per week for any combination of community networking, day supports, supported employment, personal care, in-home skill-building and/or Community Living and Supports

(Attachment D)

Community Navigator Provider directed service
Community Networking Payment for attendance at classes and conferences cannot exceed $1,000 per beneficiary per plan year.

(Attachment C)

Crisis Services Crisis Intervention and stabilization Supports may be authorized for periods of up to 14 calendar day increments per event.

 

Out-of-home Crisis services may be authorized in increments of up to 30 calendar days.

(Attachment C)

 

Day Supports (A group, facility-based service that provides assistance to the individual with acquisition, retention or improvement in socialization and daily living skills.)

 

Subject to limits on sets of services

(Attachment C)

 

For adult beneficiaries who live in a private home, no more than 84 hours per week for any combination of community networking, day supports, supported employment, personal care, in-home skill-building and/or Community Living and Supports

(Attachment D)

Residential Supports (for Group Home or Alternative Family Living) Subject to limits on sets of services

(Attachment C)

 

For adult beneficiaries who receive residential supports, no more than 40 hours per week for any combination of community networking, day supports and supported employment services.  For child beneficiaries who receive residential supports, during the school year, no more than 20 hours per week for any combination of community networking, day supports and supported employment services.

(Attachment D)

Supported Employment Services (provide assistance with choosing, acquiring, and maintaining a job for beneficiaries 16 and older) Subject to limits on sets of services

(Attachment C)

 

For adult beneficiaries who live in a private home, no more than 84 hours per week for any combination of community networking, day supports, supported employment, personal care, in-home skill-building and/or Community Living and Supports

(Attachment D)

Supported Living (flexible partnership that enables a person to live in his own home with support from an agency that provides individualized assistance in a home that is under the control and responsibility of the person Subject to limits on sets of services

 

For adult beneficiaries who live in a private home, no more than 84 hours per week for any combination of community networking, day supports, supported employment, personal care, in-home skill-building and/or Community Living and Supports

(Attachment D)

 

Person receiving Supported Living may not also receive Community Living and Supports, Respite Services or Personal Care Services

[1] See NC Division of Medical Assistance, Clinical Coverage Policy No: 3K-1, Amended Date: March 1, 2018.  The CAP/C waiver was renewed by CMS effective March 1, 2017-February 28, 2022.

[2] See NC Division of Medical Assistance, Clinical Coverage Policy No: 8-P, Amended Date: November 1, 2016.

Knicole Emanuel to Appear on UNC-TV Tonight! Tune In at 7:30pm!

Heather Burgiss, a UNC-TV journalist, created a 3-part television series called, “Mental Health Services in NC.” Part 1 will air tonight on UNC-TC at 7:30, and I will be discussing the important topic of the current status of our mental health system in NC.  So tune in to watch!!!!

The three-part series is intended to educate North Carolinians on the current state of mental health in NC, as well as discuss the upcoming Medicaid reform consisting of the Accountable Care Organizations (ACOs) for physical health services.

P.S. It is intimidating how UNC-TV interviews you, so forgive any bad grammar, etc. 🙂  During the interview, they cut off all the lights and shine a bright light on you.  It creates a strange environment in which you can hear the person asking you questions, but you cannot see him or her.  Plus, the light is super hot.

But, we will see, Heather was very nice in dealing with my novice handling of the interview.

And, BTW, when you see the scene during which I am walking down the hall of my law firm, I had a strange sensation to start doing the MC Hammer.  But I did not succumb.

Carolina Access, Medicaid and Health Choice: What Are These Programs and Who Qualifies?

Medicaid, Carolina Access, and Health Choice.  Three completely different, and, somewhat, independent programs.  What are the differences?  Who is eligible for what? 

I am reminded of the Monty Hall problem that I learned in a college Statistics class (which, BTW, was my most-hated class in college).  The Monty Hall problem is a brainteaser, a hypothetical, statistical mindbender and it goes like this:

Suppose you’re on a game show, and you’re given the choice of three doors: Behind one door is a car; behind the others, goats. You pick a door, say No. 1, and the host, who knows what’s behind the doors, opens another door, say No. 3, which has a goat. He then says to you, “Do you want to pick door No. 2?” Is it to your advantage to switch your choice?

I am not alluding that Medicaid, Carolina Access, and Health Choice are the equivalent of picking a prize from behind three doors.  Obviously, not.  But when you don’t know the difference between the programs or which program could benefit you, it can seem as if you are just picking a prize behind three doors.  Or throwing darts at a dartboard of choices.  Without information, knowing which program can benefit you can be a mystery. 

In this blog, I would like to take the mystique out of Medicaid, Carolina Access and Health Choice.  So that you know which program, if any, could be applicable to you, a relative, friend, or, even, a client.

First, door number 1: Medicaid is health insurance for low-income families and individuals who are eligible.  Depending on the category for which you are applying, the income cap differs.  For a complete rundown of Medicaid eligibility, click here.

Medicaid is a highly regulated program, both federally and on the state level.  But no federal statutes speak to how Medicaid recipients can choose their health care physicians or a long-term treatment plan.

Hence, door number 2:

Carolina Access (CA).  CA is an option for comprehensive managed care that directs Medicaid recipients to primary-care doctors or clinics that can best serve all their needs. CA helps find Medicaid recipients “health care homes.”  With CA, recipients also have 24-hour access to medical advice and emergency treatment. 

If you are eligible for Medicaid, you may be eligible for CA, but not always.

CA began as a pilot program within 5 counties in 1991 and went statewide in 1998.

Medicaid recipients are enrolled in CCNC/CA by the Department of Social Services located in the county in which they reside. Enrollment can be done at anytime during the recipient’s eligibility period; however, it is required at application or review for continuation of eligibility. The program aid category of eligibility determines if a recipient is mandatory, optional, or ineligible for enrollment in CCNC.  See NC DMA website.

Below is a chart of eligibility for CA:

MANDATORY OPTIONAL INELIGIBLE
AAF (Work First Family Assistance) HSF (Medicaid Non-Title  IVE Foster Care Children) MQB (Medicare Qualified Beneficiaries)
MAB (Aid to the Blind) IAS (Medicaid Title IVE Adoption Subsidy Foster Care Children) MRF (Medicaid for Refugees)
MAD (Aid to the Disabled) MPW (Medicaid for Pregnant Women) RRF (Refugee Assistance
MAF (Medicaid for Families and Children) MAA (Medicaid for the Aged – over 65 years of age) SAA (Special Assistance to the Aged)
MIC (Medicaid for Infants and Children)    
MSB (Special Assistance to the Blind)    
SAD (Special Assistance to the Disabled)

According to the December 2013 CCNC/CA Enrollment Report, there were 1.58+ Medicaid enrollees throughout North Carolina.  1.47+ of those Medicaid enrollees were eligible for CA.  1.35+ actually enrolled in CA at a 92% realization rate.

And now we come to Door #3:

Because Medicaid only covers those with low-incomes and many people who are not eligible for Medicaid still cannot afford insurance, NC has created door number three: Health Choice.  Health Choice only covers children.  Eligibility for Health Choice is defined by NC statute.  According to NC Gen. Stat. 108A-70.21, children are eligible for Health Choice if they are:

  • Between the ages of 6 through 18;
  • Ineligible for Medicaid, Medicare, or other federal government-sponsored health insurance;
  • Uninsured;
  • Live in a family whose family income is above one hundred thirty-three percent (133%) through two hundred percent (200%) of the federal poverty level;
  • A resident of this State and eligible under federal law; and
  • Someone who has paid the Program enrollment fee required under this Part.

So….there it is….the three programs, Medicaid, Health Choice and Carolina Access, somewhat de-mystified. 

I understand that I cannot cover all aspects of all three programs in this blog, but, hopefully, this helps a bit.  So it does not feel like you are picking randomly a prize from 3 doors.

How EPSDT Allows Medicaid Recipients Under the Age of 21 To Receive More Services Than Covered By NC State Plan

EPSDT. What in the heck is EPSDT?

EPSDT is an acronym for the “Early and Periodic Screening, Diagnosis, and Treatment (EPSDT).” It only applies to Medicaid beneficiaries under the age of 21. As in, if you are 21, EPSDT does not apply to you. The point of EPSDT is to allow beneficiaries under the age of 21 to receive medically necessary services not normally allowed by the NC Medicaid State Plan. (These beneficiaries under the age of 21 I will call “children” for the sake of this blog, despite 18+ being a legal adult).

The definition of each part of the acronym is below:

Early:……. Assessing and identifying problems early
Periodic:…… Checking children’s health at periodic, age-appropriate intervals
Screening:…. Providing physical, mental, developmental, dental, hearing, vision, and other screening tests to detect potential problems
Diagnostic:…. Performing diagnostic tests to follow-up when a risk is identified, and
Treatment:…. Control, correct or reduce health problems found.

Federal Medicaid law at 42 U.S.C.§ 1396d(r) [1905(r) of the Social Security Act] requires state Medicaid programs to provide EPSDT for beneficiaries under 21 years of age. Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by screening,” whether or not the service is covered under the North Carolina State Medicaid Plan.

The services covered under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. § 1396d (a) [1905(a) of the Social Security Act].

For example, EPSDT will not cover, nor is it required to cover, purely cosmetic or experimental treatments.

Again, EPSDT allows for exceptions to Medicaid policies for beneficiaries under the age of 21. For example, if the DMA clinical policy for dental procedures does not cover a certain procedure, if the dentist determines that the procedure is medically necessary for a beneficiary under the age of 21, then the dentist can request prior approval under EPSDT simply by filling out a “non-covered services form” along with the other supporting documentation to establish medical necessity. More likely than not, the “non-covered procedure” would be approved.

Medical necessity is an interesting term. Medical necessity is not defined by statute. The American Medical Association (AMA) defines medical necessity as:

“Health care services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, treating or rehabilitating an illness, injury, disease or its associated symptoms, impairments or functional limitations in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site and duration; and (3) not primarily for the convenience of the patient, physician, or other health care provider.”

But, legally, the courts have construed medical necessity broadly when it comes to EPSDT. As in, generally speaking, if a doctor will testify that a procedure or service is medically necessary, then, generally speaking, a judge will accept the medical necessity of the procedure or service.

It seems as though I am degrading the intelligence of the judges that take the face value testimony of the doctors. But I am not.

Judges, like I, are not doctors. We do not have the benefit of a medical education. I say benefit because any education is a benefit, in my opinion.

It would be difficult for anyone who is not a doctor to disagree with the testimony of a physician testifying to medical necessity. I mean, unless the person stayed in a Holiday Inn Express the night before. (I know…bad joke).

Some courts, however, have ruled that the decision as to whether a procedure is medically necessary must be a joint effort by the state and the treating physician. Obviously, for courts that follow the “joint decision for medical necessity” holdings, less procedures would be allowed under EPSDT because, more likely than not, the state will disagree with a treating physician (I say this only from my own experience representing the state when the state disagreed with EPSDT treatments despite the treating physician testifying that the procedure was medically necessary).

For example, the 11th Circuit has held that both the state and the treating physician have a role in determining whether a procedure or treatment is medically necessary to correct or ameliorate a medical condition. The 11th circuit disagreed with the Northern District of Georgia’s determination that the state MUST provide the amount of services which the treating physician dreamed necessary. Moore v. Medows, No. 08-13926, 2009 WL 1099133 (11th Cir. Apr. 24, 2009).

Regardless, in practice, EPSDT is interpreted broadly. A long, long time ago, I worked at the Attorneys’ Generals office. A mother requested hyperbaric oxygen therapy (HBOT) for her autistic children (and I had to oppose her request because that was my job).

For those of you who do not know what HBOT is (I sure didn’t know what HBOT is prior to this particular case)…

“Hyperbaric Oxygen Therapy (HBOT) is the use of high pressure oxygen as a drug to treat basic pathophysiologic processes and their diseases. HBOT has acute and chronic drug effects. Acutely, HBOT has been proven to be the most powerful inhibitor of reperfusion injury, which is the injury that occurs to tissue deprived of blood supply when blood flow is resumed. This is thought to be one of the primary mechanisms of hyperbaric oxygen therapy effects in acute global ischemia, anoxia, and coma. Chronically, HBOT acts as a signal inducer of DNA to effect trophic (growth) tissue changes.” See http://www.hbot.com/hbot.

I went and saw a hyperbaric oxygen treatment chamber in preparation of my case. It’s pretty intimidating. It is a large chamber made of thick metal. It looks like you could get inside, have it submerged under the ocean, and explore. It appears similar to a submarine. And, interestingly, it is most often used for divers who get the bends.

It is highly controversial as to whether HBOT cures, remedies or ameliorates autistic symptoms. I had two experts testifying that HBOT was experimental, and, therefore, not covered by Medicaid, even with EPSDT. (Remember, back then I was at the AG’s office).

Yet, despite the fact that HBOT was still controversial as to whether it ameliorates the symptoms of autism, the Administrative Law Judge (ALJ) used the EPSDT doctrine to rule that the mother’s children could receive HBOT and Medicaid must pay for the services.

That is the power of EPSDT. HBOT was clearly not covered by Medicaid for the purpose of ameliorating symptoms of autism. But, for the children named in the Petition who were under 21, Medicaid paid nonetheless.

HBOT allows beneficiaries under the age of 21 to receive medically necessary services that would not normally be allowed under the North Carolina Medicaid State Plan.

Importantly, EPSDT provides for private rights of action under 1983. At least all the federal circuit court of appeals have held such.

Oh, and, BTW, NCTracks will soon also be in charge of EPSDT determinations.

DHHS Blunder Could Cost Millions! “Oops I Did It Again!”

We can add one more “oops” to the Department of Health and Human Services (DHHS) repertoire of “oopses.” I am reminded of Captain Edward Smith when he banged the Titanic into an iceberg.  Talk about an “oops” moment.  Not to mention the lives lost, hitting that iceberg cost $7.5 million in ship building costs back in 1909.

DHHS hit another iceberg yesterday.  How much will this “oops” costs?

DHHS made its “oops” by sending 48,752 new Medicaid cards to the WRONG people.  Oops! Medicaid cards have HIPAA protected information on them, such as names, Medicaid numbers and dates of birth. 

Let me tell you a little about HIPAA. HIPAA stands for the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  It was signed into law by Bill Clinton,  Title II of HIPAA requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers.  Why is this important?  This act also provides significant penalties if privileged information is disseminated.

Hence the DHHS Medicaid card debacle. Iceberg, ahoy! “Oops I did it again!”

The questions are (1) how much will NC be penalized for the dissemination of so much private information; and (2) will NC actually have to pay the penalty?

Recently, HIPAA was revamped.  Beginning September 2013, HIPAA became even more stringent with harsher penalties and began to apply to more people (including law firms).  For example, prior to September 2013, my firm Williams Mullen treated my documents received from clients the same as all other privileged information in our firm.  Obviously, almost everything at a law firm is confidential.  Now I have to lock my door (we had to install a lock) anytime I leave my office, even for lunch.  Bright yellow flags have been added to all my files that contain privileged health information (PHI), which is every file.  My partners cannot access my documents on our computer network system unless granted access.  I feel like Edward Snowdon.

I also remember a story about a nurse who worked at a hospital.  Her husband was admitted into the ER while she was on her shift and she looked up his condition on the computer.  She was fired for violating HIPAA.

How bad can it be?

The feds imposed a penalty of $4.3 million against Cignet Health of Prince George’s County, MD, for HIPAA violations in 2011. Oops!

And, in light of the “new HIPAA,” last week, DHHS disseminates privileged information to 48,752 people.

What are the penalties for violating HIPAA?

There are four violation categories (1) did not know; (2) reasonable cause; (3) willful neglect-corrected; and (4) willful neglect-not corrected.  Here are the penalties:

HIPAA

Assuming DHHS’ HIPAA violation is the least severe, “did not know,” DHHS could be liable for $100-$50,000 per violation.  Here, there are, at least, 48,752 violations.  So we are talking a penalty anywhere from $4,875,200 to a number bigger than my calculator allows.

Thankfully for DHHS and, ultimately, our tax dollars, there are caps to HIPAA penalties.  There is a $1.5 million cap per calendar year.

However, DHHS could be liable for multiple violations of multiple provisions and a violation of each provision can be counted separately.  So, theoretically, DHHS could be liable for multiple violations of up to $1.5 million cap for each violation, which would result in a total penalty well above $1.5 million.

Oops!

The other question is whether the federal government will hold a state liable for such HIPAA violations.  I don’t know the answer to this, but it would seem fundamentally unfair if HIPAA applies to people and companies, but not the state.

Then, again, how many of you want our tax dollars going toward paying these HIPAA penalties?

You can also see this story on WRAL. (Yes, I was interviewed 🙂 )

Will Aldona Wos also have a $7.5 million “oops” like Captain Smith?  Because, regardless who committed the “oops,” Wos is captain of the ship.  It is believed that Capt. Smith went down with the Titanic.

Medicaid Alert: Arkansas Medicaid Going Private? Others To Follow? Should NC?

On September 27, 2013, the Centers for Medicare and Medicaid (CMS) approved Arkansas’ request to begin a Private Option demonstration.  Arkansas is the first state to receive approval for a “private option” as an alternative to Medicaid expansion.

Remember my “A Modest Proposal?”  Providing Medicaid recipients with private insurance….

Basically, Arkansas will accept federal money for Medicaid expansion, but instead of expanding Medicaid, Arkansas will purchase private insurance for these “newly eligible” Medicaid recipients, adults who make $15,280 or less.  Those individuals who earn up to 138 percent of the poverty line — or $15,415 per year — would purchase subsidized private insurance through the state’s insurance exchange.  From my understanding, the federal funds will cover the newly eligible recipients’ premiums and any co-pays above the co-pays set by statute.

Coverage is to begin January 2014, although enrollment opened today.

Arkansas estimates that 225,000 individuals will be eligible for the demonstration project.  Iowa has submitted a similar request for a “private option” program.  CMS has not yet ruled on Iowa’s request.  Likewise, Pennsylvania Governor Corbett submitted a request to CMS based of the Arkansas model.

It seems that some Republican governors are thinking outside the box to provide health care coverage for additional Medicaid recipients without merely providing the newly eligible simply a Medicaid card.  Because, remember, receiving health care is completely different from receiving health insurance.  Having insurance does not always allow Medicaid recipients to receive health care.  Obviously, many provider refuse to accept Medicaid.  But these newly eligible Medicaid recipients will have health care…with private insurance…just like I have…or you have….

And I ask you…What is more important….handing a person a Medicaid card?…Or providing that person with quality health care?

Editorial: The real trouble at DHHS: Failing the needy – Winston-Salem Journal: Editorials

Editorial: The real trouble at DHHS: Failing the needy – Winston-Salem Journal: Editorials.

Because of PCG Audit, New Mexico Freezes Mental Health Services!

Last week, I was busy working in my office when a woman named Shawn called me. The area code showing on my caller ID was definitely NOT from North Carolina. Turns out Shawn lives in New Mexico.

Pop Quiz: (For those of you who have been with me for a while): What is similar between New Mexico and North Carolina Medicaid? Answer: Public Consulting Group (PCG).

Remember my blog, “New Mexico and NC: Fraternal Twins?”

Seems that the bloopers surrounding PCG do not only lie within the state border of NC.

Oh, no! PCG is much more far-reaching than just NC.

Hence, Shawn calling me up to fly to New Mexico to speak to the New Mexico State legislature about PCG in NC. And, perhaps, how Medicaid providers can defend themselves (maybe without me since I do not have my NM law license, although I am sure I could pro hac in).

So what was I supposed to say to a bunch of state legislatures? Why would they even care what I have to say?

I ask Shawn this.

In July, New Mexico’s Human Services Department suspended Medicaid funding to 15 providers while conducting an investigation into allegations of fraud. An out-of-state consulting group released an audit in June accusing the mental health providers of overbilling the federal and state government by tens of millions of dollars.

New Mexico has frozen mental health services for Medicaid recipients?

Can you imagine? What has happened to the New Mexico Medicaid recipients who need mental health services?

 And this mental health services freeze is based on an audit conducted by Public Consulting Group? Are you kidding?  The same company that stated that my client owed $706,000+ Medicaid reimbursement overpayment, yet, after legal arguments, DHHS held that my client only owed $336????

THAT COMPANY????

So, here I am, flying to New Mexico… I am on a plane (obviously, coach) squished into a window seat, unable to straighten my legs, typing this, thinking that allowing me only one cup of water over a 3 hour trip constitutes cruel and unusual punishment, all to explain to NM legislators the ineptness of PCG.

Worth it?

Heck, yes, if my message does not all on deaf ears. I will keep you posted.

McCrory Signed SB 553: The Legal Burden is Now on Medicaid Recipients

August 23, 2013: Governor Pat McCrory signed Senate Bill 553.  Senate Bill 553 is now Session Law 2013-397.

No words can express my disappointment.

Starting Monday, Without a Veto, the Legal Burden of Proof Will ALWAYS Be on the Medicaid Recipients

I am not sure whether you have noticed, but Medicaid recipients have very little pull in North Carolina government.  Medicaid recipients have very little voice in our society.  Obviously, Medicaid recipients are indigent, so they do not have the money to hire lawyers and lobbyists. 

Politicians (while they are campaigning) always protest that they believe that Medicaid recipients are important…that Medicaid is important…but, most importantly, that it is important that Medicaid recipients receive quality health care….right?

We’ve heard the rhetoric over and over.

But then what happens when the politician takes office?

I can tell you what does NOT happen. Medicaid recipients do not band together, hire a lobbyist and begin influencing government policies.

Per norm, the Medicaid recipients remain invisible.  And mute.

I have a client with a daughter.  This daughter, we will call her Jennifer, is in her 30s, but with mentality of an 18-month old.  Jennifer is diagnosed with Tuberous Sclerosis Complex (“TSC”), a rare, multi-system genetic disease.  She is nonverbal and requires 24 hours/day supervision for health and safety and total care for activities of daily living and incidental activities of daily living, just as an 18-month old would require.

The Managed Care Organization (MCO), where Jennifer resides, is Smokey Mountain Center (SMC).  For the last 4 years in North Carolina (five years ago Jennifer resided in California), Jennifer has received 16 hours/day Medicaid. Once SMC went live and Jennifer’s yearly authorization was up for renewal, SMC reduced Jennifer’s services to 12 hours/day, thereby leaving a 4-hour gap in which Jennifer would be  unsupervised. (Shocking that the MCO did not want to foot the bill for the extra 4 hours, right?)

I will spare you the details of the legal arguments on both sides, as, today, my husband made a comment that my blogs were “too long.”

So, we are in the administrative hearing in front of an Administrative Law Judge (ALJ) with the attorneys for SMC and the Department of Health and Human Services (DHHS) present.  The ALJ asks me, “Counselor, who has the burden of proof, the Petitioner [us] or the Respondents [them]?”

To which I had to think back to my days during which I worked as an Assistant Attorney General (AG) for NC  (yes, I used to work on the other side…where do you think I learned this stuff?? At law school?)

For those of you without law degrees, the burden of proof (onus probandi, in Latin) is the obligation (hence the Latin word “onus“) on the party in a trial, who must prove [something] in court in order for the burden to shift to the other party to dispute.

Sometimes people will explain the burden of proof as “the necessity of proof always lies with the person who lays charges.”  As in, if you claim that I stole your watch, you must prove I stole it.  I do not have to prove that I did NOT steal it.

This may seem like ridiculous semantics to you, but, legally, who bears the burden of proof is huge.

In Jennifer’s example, the ALJ was asking me whether we (Jennifer) had to prove that she medically needed 16 hours/day Medicaid services or whether the State had to prove why Jennifer did NOT need the 16-hours/day Medicaid services.

If we (Jennifer) put on compelling evidence that she needed 16-hours/day services, and Respondents SMC and DHHS put on equally, compelling evidence that she did NOT need 16-hours/day services, then the Judge would have to rule against the party bearing the legal burden of proof.

As of today, here is the law as to burden of proof for Medicaid recipients:

(d) Burden of Proof. – The recipient has the burden of proof to show entitlement to a requested benefit or the propriety of requested agency action when the agency has denied the benefit or refused to take the particular action. The agency has the burden of proof when the appeal is from an agency determination to impose a penalty or to reduce, terminate, or suspend a previously granted benefit. The party with the burden of proof on any issue has the burden of going forward, and the administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence.

(emphasis added). 

Senate Bill 553 will change all this.

Senate Bill 553 states that, “The enrollee has the burden of proof on all issues submitted to OAH for a contested case hearing under this section and has the burden of going forward. The administrative law judge shall not make any ruling on the preponderance of evidence until the close of all evidence in the case.”

The enrollee = the Medicaid recipient.

Therefore, even if the MCO terminates an enrollee’s services (and even if the termination is arbitrary and without merit), the Medicaid RECIPIENT bears the legal burden to prove this.

Really?  Let’s make it even harder for Medicaid recipients to appeal denials or reductions in services.  They can handle it!  They can hire a lawyer!  Right?

Who does this change benefit? Who benefits from the Medicaid recipients bearing the burden of proof in a legal action?

Answer? The MCOs.  And guess what?  The MCOs have lobbyists.  The MCOs have lawyers.

Senate Bill 553 was ratified July 26, 2013.  Which means that SB 553 will be law beginning Monday unless Governor McCrory vetoes the bill by Sunday.  On Sunday (August 25, 2013), McCrory can choose to sign SB 553, allow SB 553 to pass without his signature, or veto the bill.

If McCrory does NOT veto the bill, Medicaid recipients will bear the burden of proof in all contested cases. 

I ask you, why would we as a society place the legal burden of proof on the party LEAST likely to be able to afford a lawyer?

Send Gov. McCrory an email. Veto SB 553!!!