Category Archives: Unnecessary Medical Services
The Undefined, Definition of “Medical Necessity”
While the Coronavirus pandemic is horrible and seems to be getting worse. COVID has forced slight, positive changes in the telehealth arena and, perhaps, in the widening of the ambiguous definition of “medical necessity” or, as I call it – the undefined, definition of “medical necessity.” Medical necessity is the backbone of rendering health care services. Without it, services should not be provided. Yet, medical necessity is the most litigated topic in all of audits.
On September 1, 2020, the Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule that will codify a definition of “medical necessity” for Medicare purposes. So far, the definition of medical necessity varies, depending on the source. The MACs have been given long rein in defining the term on an individual and separate basis, creating disparity in definitions and criteria. The proposed rule’s comment period ended November 2, 2020.
All this to say medical necessity is in the eye of the beholder. Much like beauty. Why then, can RAC and MAC auditors who are not doctors, not firsthand, treating providers, not nurses or LCASs, decide that medical necessity does or does not exist for a patient that they have never seen?
Black’s Law Dictionary (the most prominent legal dictionary) has a super, unhelpful definition of medical necessity: “If not carried out the patient’s situation could worsen. For a patient’s treatment found to be necessary is this specific type of procedure or treatment.”
The American Medical Association (“AMA”), on the other hand, has a more detailed definition, probably unintended to make it all the more confusing:
“Our 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 or treating an illness, injury, disease or its symptoms in a manner that is: (a) in accordance with generally accepted standards of medical practice; (b) clinically appropriate in terms of type, frequency, extent, site, and duration; and (c) not primarily for the economic benefit of the health plans and purchasers or for the convenience of the patient, treating physician, or other health care provider.”
CMS’ proposed rule codifies a definition of what makes an item or service medically “reasonable and necessary” under the Social Security Act 1861(a)(1)(A). The rule, if finalized, would codify in regulations a definition of “reasonable and necessary” items and services based on a definition currently used by Medicare Administrative Contractors (MACs), with an additional element that potentially would include coverage determinations by commercial insurers as a factor in making Medicare coverage determinations.
The Proposed Definition (To be Codified in 42 CFR 405.201)
“We are proposing to codify the longstanding Program Integrity Manual definition of “reasonable and necessary” into our regulations at 42 CFR 405.201(b), with modification. Under the current definition, an item or service is considered “reasonable and necessary” if it is (1) safe and effective; (2) not experimental or investigational; and (3) appropriate, including the duration and frequency that is considered appropriate for the item or service, in terms of whether it is—
- Furnished in accordance with accepted standards of medical practice for the diagnosis or treatment of the patient’s condition or to improve the function of a malformed body member;
- Furnished in a setting appropriate to the patient’s medical needs and condition;
- Ordered and furnished by qualified personnel;
- One that meets, but does not exceed, the patient’s medical need; and
- At least as beneficial as an existing and available medically appropriate alternative.” See Proposed Rule.
In addition, CMS adds that it will also utilize commercial payor standards or have an objective panel determine medical necessity if criteria #1 and #2 were met, but not #3. This additional commentary is another example of how subjective and fact-specific determining medical necessity can be. The LCDs will also be consulted.
If adopted, these proposals would arguably lead to the most wide-ranging changes in Medicare’s coverage standards and procedures in decades. The proposal to codify the definition of “reasonable and necessary” applies to all items and services. The inclusion of commercial payor standards may be a wild card.
The definition of medical necessity has not been officially revised – yet. One could imagine that, in the midst of a RAC or MAC audit, auditors and providers will disagree as to the true definition of medical necessity.
Going forward, when you get audited, immediately look and see whether your claim denials were denied due to “lack of medical necessity.” Ask yourself, “Really? Is there no medical necessity in this case…even in the era of COVID?” Because the auditors may be wrong.
Secondly, ensure that the RAC and MAC entity is CMS-certified to review those certain CPT codes for medical necessity. CMS limits audits on medical necessity because of the vagueness of the definition. When auditors find no medical necessity, then providers must push back. And you should push back, legally, of course!
As NC Morphs to ACOs, the Brains (The Mental Side of Medicaid) Remain With MCOs: Perfect for the Headless Horseman
ACOs could be the answer to Medicaid budget problems. At least for physical services for the neck down. The brain, for now, will continue with the MCOs.
I understand that Medicaid services for physical needs will be within the parameters of the ACOs and that MH/DD/SA will remain with MCOs. But it seems that we are cutting the head off the body. This system would be perfect for the Headless Horseman; I assume the Headless Horseman did not suffer from any mental afflictions being that he had no head.
The shift to the ACO system is an attempt to revamp the fee-for-service payment method and dissuade physicians from ordering more procedures and services than are actually necessary.
According to a new Harvard study, as many as 42 percent of U.S. Medicare patients were subjected to procedures providing little if any medical benefit, costing the government program up to $8.5 billion in wasteful spending.
What could be the cause of this needless spending? You could argue that plaintiffs’ lawyers are at fault because of creating a fear of medical malpractice lawsuits. Doctors become so concerned about being the subject of a medical malpractice lawsuit that the physician is over-inclusive as to tests/procedures rather than risk being accused of medical malpractice by failing to test. This is commonly referred to as practicing “defensive medicine.”
But you could also argue that the entire fee-for-service payment method currently used by physicians gives a financial incentive to providers to recommend more services, more testing, more procedures. For example, ordering a test a patient doesn’t really need, in an effort simply to have the results show up in her records, would be considered practicing defensive medicine.
It is without question that defensive medicine is better for physicians, and very understandable. If I were a physician, knowing as much as I do about health care law, I would definitely practice defensive medicine. And purchase the Cadillac of the liability insurances, one that covers 100% of attorneys’ fees for my choice of attorney. Those plaintiff lawyers would scare me, too!
But defensive medicine is not the best approach for the Medicaid budget. One possible way to eliminate defensive medicine practices is to implement the accountable care organizations (ACOs). While ACOs do not completely do away with a fee-for-service payment system, they creates incentives to be more efficient by offering bonuses when physicians keep costs down. Providers get paid more for keeping patients out of the hospitals.
North Carolina is implementing the ACO model for physical health care (not for MH/DD/SA).
North Carolina Department of the Health and Human Services (DHHS) has announced that the NC Medicaid system will be changed over to the ACO model by July 2015, although some question whether the deadline is a bit unrealistic.
However, in NC, there are already ACOs, whose experience can give us an idea of what the NC Medicaid system’s ACO experience will resemble. Here is a list of active ACOs in NC (according to one website):
Physicians HealthCare Collaborative
AnewCare Collaborative
Cornerstone Health Care, PA
Meridian Holdings, Inc.
Triad Healthcare Network, LLC
Coastal Carolina Quality Care, Inc.
Accountable Care Coalition of Caldwell County, LLC
Accountable Care Coalition of Eastern North Carolina
Another article cites that in NC we have 14 ACOs currently active.
Our ACOs in NC service MediCARE patients, not MediCAID.
I am not aware of a single other state in USA that has implemented ACOs to Medicaid, which seems odd, considering the number of ACOs across the nation for Medicare and the touted success of ACOs in Medicare. Could NC possibly be the leader in ACOs for Medicaid? There is no question that, when we implement the ACOs, all eyes will be on NC to determine the success or failure of the program.
The ACOs will not, however, manage behavioral health. We will continue with the MCOs behavioral health care. So the ACOs will be in charge of everything the neck down. But is the ACO system going to replicate the MCO system? (As everyone knows who has read my blogs, I am not a fan of the MCO system).
ACO…MCO….What’s the difference?
Hopefully, and I believe it is correct to say, the ACOs will be vastly different from their counterpart, the MCO (in a good way).
In essence, I have high hopes for the ACOs. I believe that the brain (MH/DD/SA) should have been included with the rest of the body, but, maybe, in time it will be.
NC Medicaid: “A Modest Proposal for Medicaid Reform”
Medicaid recipients in North Carolina are not getting the same, quality health care that citizens with private insurance receive.
Health care providers refuse to accept Medicaid due to low, Medicaid reimbursement rates. There are not enough Medicaid providers for all the Medicaid recipients. Medicaid recipients have difficulty finding health care providers, especially dentists and other specialists. Many Medicaid recipients are forced to go to the emergency departments (EDs) for medical issues that could have been conducted in a primary care doctor’s office, thereby creating excessively long, waiting periods at EDs. Medicaid recipients, who understand they need mental health services, are left to the whim of an employee at a managed care organization (MCO) as to whether the recipient meets medical necessity for a behavioral health care service.
I’ve blogged before that the disparity between the health care a Medicaid recipient receives and the health care a citizen with private insurance receives reminds me of the “separate, but equal” doctrine during the Civil Rights Movement.
Medicaid recipients in North Carolina are not getting the same, quality health care that citizens with private insurance receive.
Separate is not equal!
As a nod to the great author, Jonathan Swift, I have “A Modest Proposal for Medicaid Reform.” Jonathan Swift is probably more well-known for “Gulliver’s Travels,” but, by far, my favorite Swift work is “A Modest Proposal.” With “A Modest Proposal,” Swift defined satirical writing, but about 300 hundred years ago.
“It is a melancholy object to those who walk through this great town or travel in the country, when they see the streets, the roads, and cabin doors, crowded with beggars of the female sex, followed by three, four, or six children, all in rags and importuning every passenger for an alms. These mothers, instead of being able to work for their honest livelihood, are forced to employ all their time in strolling to beg sustenance for their helpless infants: who as they grow up either turn thieves for want of work, or leave their dear native country to fight for the Pretender in Spain, or sell themselves to the Barbadoes.”
Interestingly, Swift published “A Modest Proposal” anonymously in a newspaper. At the time Swift wrote it, Ireland was in an impoverished state with an over-population problem. Some lawmakers had suggested a number of population-control methods that, apparently, insulted Swift to his core. One person suggested running the poor through a joint-stock company, presumably for the “rich, educated” people to control the “poor.” Others suggested population-control, such as preventing childbirth for certain demographics.
Similarly, today I was listening to CNN when the newscaster explained that a mother of an autistic child received a hateful letter from a neighbor about her autistic child.
Here are some statements found in the letter: (Please understand that these words are not mine. In fact, when I heard this story, I was torn between crying for this mother and child or becoming infuriated at the ignorance and narcissistic hubris of the author).
The letter goes on to criticize Begley for allowing Max to play outside and says: “That noise he makes when he is outside is DREADFUL!!!!!!!!!! It scares the hell out of my normal children!!!!!!!”
The letter also tells Karla that she has a “retarded kid” and “should deal with it properly”.
“What right do you have to do this to hard working people!!!!!!!! I HATE people like you who believe, just because you have a special needs kid, you are entitled to special treatment!!! GOD!!!!!!”
The writer finishes by demanding the family “go live in a trailer in the woods or something with your wild animal kid!!!” and asks the family to do the right thing and move or “euthanize him. Either way, we are ALL better off!!!”
I hope that the above words impacted you as they did me. I simply cannot believe that a person…any person….would THINK those words, much less write those words. Has our society become so callous to people with special needs that the people with special needs have become (in the author’s view) burdensome or annoying? To the author of that hateful letter, I say, “Shame on you!”
I also say, “If there were laws against being heartless, you would be sentenced for life!”
In “A Modest Proposal,” Swift suggests (satirically) that the impoverished Irish might ease their troubles by selling their children as food for rich gentlemen and ladies. “This satirical hyperbole mocks heartless attitudes towards the poor, as well as Irish policy in general.” See Wikipedia . (It amazes me that the authors of Wikipedia draft better English essays than I did in college).
According to DMA, in 1999-2000 more than 1.22 million individuals were covered under North Carolina’s Medicaid program. By 2009, that number had grown to more than 1.81 million individuals, an increase of approximately 50%. That means that 1.81 million people in North Carolina depend on Medicaid. These are our neighbors; these are our children; this may even be us.
I have my own “A Modest Proposal.” My “A Modest Proposal” is:
“A Modest Proposal for Medicaid Reform.”
Our Medicaid budget is approximately $14 billion. According to Kaiser, our Medicaid expenditures were $10,546,984,914 in fiscal year (FY) 2011. However, Kaiser also notes that “expenditures do not include administrative costs, accounting adjustments, or the U.S. Territories. Total Medicaid [federal and state…as in, nationwide] spending including these additional items was $427.4 billion in FFY 2011.”
We spent $10.5 billion (estimated) on Medicaid services for Medicaid recipients in FY 2011. According to the January 2013 State Audit of DHHS, in fiscal year 2011, North Carolina Medicaid incurred administrative expenses of approximately $648.8 million. Now, here in 2013, with the MCOs in place statewide, I wager that the administrative costs for Medicaid for fiscal year 2013 will, at least, double due to the salaries and benefits awarded to MCO employees.
67.4% of our $10.5 expenditure went to acute care (hospitals). No shock there. Medicaid recipients generally do not receive continuity of care through a primary physician. Therefore, many Medicaid recipients end up in the ED for an ear ache (ever wonder why the waiting period at the ED is so long?).
Plus, North Carolina is, sadly, floundering as to providing mental health services, so it is no wonder that “almost one-third of ED visits by those with underlying mental health disorders resulted in hospital admission, more than twice as many as those without underlying mental health disorders,” according to a new study released by North Carolina School of Medicine researchers. For the study, click here.
28.8% of our Medicaid expenditure went to long-term care. Again, not surprising with the rise of more aged, NC citizens. Kaiser Family Foundation data for FY 2009 show that approximately 27% of those enrolled in the North Carolina Medicaid program were categorized as aged or disabled, and that the cost of services for those 2 categories of recipients made up approximately 63% of the program’s total costs that year.
3.9% of our Medicaid expenditures for 2011 went to DSH payments. Disproportionate Share Hospital (DSH) adjustment payments provide additional money to hospitals that serve a significantly disproportionate number of Medicaid recipients.
3.9 + 28.8 + 67.4 = 100%
North Carolina’s total Medicaid spending including these additional items was approximately $11.149 million in FY 2011. ($10.5 billion + $648.8 million administrative costs). According to Beth Wood’s January 2013 Performance Audit, private contractor payments represent about $120 million (46.7%) of DMA’s $257 million in administration expenditures for FY 2012. Almost half of the administrative costs for Medicaid, in 2012, went to contracted companies, such as Piedmont, Carolinas Center for Medical Excellence (CCME), Public Consulting Group (PCG), etc…
So…here is my “A Modest Proposal:”
If you take the total Medicaid budget (currently, over $14 billion) for the fiscal year ended June 30, 2012, and divide the budgeted amount by 1.8 million (the approximate number of North Carolinians on Medicaid), you get: $7,777.78.
$7,777.78/year for each Medicaid recipient.
My health care premiums for a “Cadillac health care” with my husband costs $9000/year. And it is great health care. All copays are $10 for generics, $15 for non-generic. Doctor visits are $10, a specialist is $25. The beauty of my health care, though, is the deductible is only $500. I hit $500, and everything is covered.
Now, mind you, the $9000 ($750/month) includes my husband. If I wanted individual insurance it would only have cost $228/month or $2,736/year. Why the addition of my husband increases the premium from $228 to $750, I have no idea, but it does. (He does not even have pre-existing conditions!!! In fact, he flatly refuses to visit a doctor unless pending death. In my mind, he should have been cheaper than I).
As an individual, in order to pay for this “Cadillac” policy, you would have to pay $2,736/year. Add in the $500 deductible and the total cost (barring unexpected and individual costs) would be $3236.
Our Medicaid budget allows each Medicaid recipient approximately $7,777.78/year.
First, I propose North Carolina downsize 80-90% of the Division of Medical Assistance (DMA) and keep running a much smaller DMA for the sole purpose of determining yearly Medicaid eligibility, thereby cutting almost all administrative costs. I also propose hiring ZERO contracted companies for Medicaid. There is no reason for any contracted companies under my “A Modest Proposal for Medicaid Reform.”
17,000+ people are currently employed by Health and Human Services. But employment of citizens is not a reason to maintain an agency. Therefore, if we can manage Medicaid without 16,500 employees (which my “A Modest Proposal for Medicaid Reform” purports to do), then we are paying unnecessary administrative costs.
Secondly, taking the Medicaid funds, and, instead of paying administrative costs to DHHS, DMA, PCG, CCME, all the MCOs, we purchase excellent, quality private insurance for each Medicaid recipient. We pre-pay the deductible for all Medicaid recipients. We hand the Medicaid recipients a private insurance card that is “pre-paid” with no deductible.
A pre-paid, private insurance card! With no deductible! (Because the deductible is paid).
No more doctors refusing Medicaid! Think about it….all doctors would take the new “Medicaid,” because the recipients would have private insurors paying the full price for medical services.
No more placing the burden of whether a recipient meets medical necessity for a medical service in the hands of DMA or a contracted company. The private insuror would take on that burden and use the same standard of medical necessity as it does for all its consumers. And why not? The insurance company is getting paid the same…
Medicaid recipients would get quality care just as if they were not Medicaid-eligible. And isn’t that our goal? For the Medicaid recipients to be cared for just as well as if they were not Medicaid-eligible?
No more difficulty finding health care providers that accept Medicaid. Medicaid recipients would have the “Cadillac” Blue Cross Blue Shield just like I do.
No more excessively long, waiting periods at the ED! Medicaid recipients would benefit from continuity of care just like I do. No need to go to the ED for an ear ache. The primary care physician can tend to the ear ache.
No one would worry about Medicaid fraud anymore because, as to health care, everyone would be the same. (So, we could also eliminate the need for Program Integrity).
No more Medicaid provider contracts, as all health care providers would accept the new “Medicaid.”
No more Medicaid recoupments.
I profess, in the sincerity of my heart, that I have not the least personal interest in endeavoring to promote this [Medicaid reform], having no other motive than the public good of my [state], by advancing our trade, providing for [Medicaid recipients], and giving some pleasure to the rich.
Think what an impact North Carolina would have on the nation if we were to implement my “A Modest Proposal for Medicaid Reform!!”
“Dr. Fata and His Shadow:” Fata’s Attempt at Multiple Medicare Bones Results in Zero
Recently a Michigan physician was arrested for committing over $35 million in Medicare fraud. (Probably some Medicaid fraud too, but Medicaid payments have not been reviewed). I have always said in this blog that I am against fraud. When someone is committing Medicare or Medicaid fraud, I say, prosecute to the highest degree allowable by law!
Here is one of many articles: link.
Providers who commit fraud are making good providers undergo harassing audits, harsh recoupments, and needless attorneys’ fees to fight the injustices.
Dear DHHS, This (the below-referenced story) is what Medicare/caid fraud looks like. It is obvious. It is disgusting. Fraud is NOT forgetting to date a service note. Fraud is NOT inadvertently inserting the incorrect billing code. Stop focusing on documentation nit-picking and find the REAL fraud! From, Me.
But, this Michigan physician…of all the possible fraudulent Medicare/Medicaid schemes….this man takes the cake.
Dr. Farid Fata, an oncologist, falsely diagnosed people WITHOUT cancer (healthy adults) as having cancer, subjecting these healthy adults to chemotherapy, and reaping the monetary benefit of expensive procedures. In my mind, Dr. Farid Fata should spend the rest of his life behind bars. And, if possible, throw a little radiation in his cell every now and then.
If greed is the inordinate desire to possess wealth far beyond the dictates of basic survival and comfort and to the detriment of anyone else, Dr. Farat exemplifies greed.
Remember the moral: “It is not wise to be too greedy.” –Aesop.
This moral comes from “A Dog and its Shadow,” in which a dog crosses over a river with a bone in his mouth. He sees his own shadow in the water, but shadow’s bone is twice the size of the bone in his mouth. (Obviously, an optical illusion). In an effort to snatch the bigger bone, the dog lets go of his own bone, and attacks the other dog (shadow), to get the bigger bone. The dog loses both bones – the shadow-bone, because it is a shadow; and his own, because the stream sweeps it away.
Dr. Fata wanted his own bone, as well as any other bone he could possibly swipe.
In the meantime, Dr. Fata, in complete opposition of his Hippocratic Oath, injured hundreds of patients by subjecting them to unnecessary treatments.
In the end, Dr. Fata loses all bones.
What treatments did Dr. Farat perform?
- Chemotherapy treatments to healthy adults;
- Positron Emission Tomograph (PET) scans and a variety of cancer and hematology treatments for patients who did not need them;
- The administration of unnecessary chemotherapy to patients in remission;
- Deliberate misdiagnosis of patients as having cancer to justify unnecessary cancer treatment;
- Administration of chemotherapy to end-of-life patients who will not benefit from the treatment;
- Deliberate misdiagnosis of patients without cancer to justify expensive testing;
- Fabrication of other diagnoses such as anemia and fatigue to justify unnecessary hematology treatments; and
- Distribution of controlled substances to patients without medical necessity or are administered at dangerous levels.
Prosecutors say Fata was motivated by money, billing Medicare for false claims, all the while, living here:
That is quite a bone!!!!
Dr. Fata faced a federal magistrate. He was arraigned Monday on a federal health care fraud indictment. Dr. Fata is being held at Wayne County Jail on a $9 million bond.
Dr. Fata became a naturalized American citizen in 2009. He was a prominent oncologist. Dr. Fata could very well had done well in his life with his wife with his own bones that collected. Apparently, an oncologist-sized bone was not good enough for Dr. Fata. Oh no, he wanted his oncologist-sized bone SUPER-SIZED.
And super-sized he will get! He faces:
- 20 years in jail;
- Deportation (if any crimes occurred prior to 2009);
- Possible bankruptcy;
- Possible fines
- Loss of his medical license;
- Potential loss of family (If my husband intentionally committed these acts, I doubt I could ever stay with him…of course, my husband never would!!!)
- Inevitable civil suits (If Dr. Fata diagnosed my with cancer and I discovered he purposely diagnosed me with a terminal disease to benefit monetarily….a very, large civil lawsuit would be filed immediately. In fact, I am sure plaintiffs’ lawyers all over are salivating).
Yet, personally, I do not think the 20 years, even including all the incidental consequences, is enough punishment. Think of the people who believed they suffered from cancer, underwent chemo, became ill (when they would otherwise have been healthy)…
The Italian poet, Durante degli Alighieri, simply referred to as “Dante,” in “Purgatory,” reserved the fourth circle of Purgatory for the greedy. Also, some of the greedy were bound and laid face down on the ground for having concentrated too much on earthly thoughts.
In my mind, 20 years is not nearly long enough for Dr. Fata.
Maybe, as Dante wrote, Dr. Fata should be bound and laid face down for 20 years. Or, perhaps, he should be forced to undergo years of chemotherapy…one year for every healthy adult he forced to undergo unneccessary chemotherapy.
