Category Archives: DMA Clinical Policy 4A
Happy 2021! I bring great news and good tidings. I’m fairly sure that everyone reading is educated in what a preliminary injunction is and how important it can be for a health care provider falsely accused of credible allegations of fraud to lift the mandatory suspension of reimbursements. Finally, over the holidays, a Judge found that an indication of intent is required for an accusation of credible allegations of fraud, unlike past cases in which a mere accusation results in suspensions. 42 CFR §455.23 mandates that a health care provider’s reimbursements be suspended based on “credible allegations of fraud.” Which is a low bar. My client, an oral surgeon, had a disgruntled employee complaint and a baseless PCG audit of $6k. A double threat.
For those who are not in the know: An injunction is an extraordinary legal tool that allows the judge to suspend whatever bad action the government or one of its auditors do.
You have to prove:
- Likelihood of success on the merits
- Irreparable harm
- Balance of equities
- Public Interest.
I would guestimate that only 10-20% of requests for TROs and PIs are granted. Last week, we won for the oral surgeon. Everyone can learn from his success. This is how we won. Let me set the stage. We have an oral surgeon who underwent an infamous PCG audit resulting in an alleged $6k overpayment. PCG concurrently sends his data to program integrity, and one month later and without any notice, his reimbursements are suspended based on a “credible allegation of fraud.” Concurrently, he had a disgruntled employee threatening him.
Remember that the bar to demonstrate “credible allegation of fraud” is amazingly low. It is an “indicia of reliability.” An inaccurate PCG audit and a disgruntled employee, in this case, were the catalyst for the oral surgeon’s Medicaid reimbursements. His practice comprised of 80% Medicaid, so the suspension would cause irreparable harm to the practice.
We filed a TRO, PI, and Motion to Stay. The day before Christmas, we had trial.
The Judge ruled that the Department cannot just blindly rely on an anonymous accusation. There has to be some sort of investigation. It is not OK to accept accusations at face value without any sort of independent fact-checking. The Judge created an additional burden for the Department in cases of accusations of fraud that is not present in the regulation. But it is logical and reasonable to expect the Department to explore the accusations. The Judge emphasized that fraud requires intent. He also pointed out that fraud is not defined in the regulations. He emphasized that billing errors are not intentional acts.
The Judge held that, “[i]n light of the large number of Medicaid beneficiaries treated by the Petitioner’s practice, the rarity of the physician’s skills, and the apparent demand for those services, the relatively small amount of money now or formally in controversy, the lack of evidence of actual fraud and the contrary indications, the high probability that good cause exists for not suspending Petitioner’s Medicaid payments, and the near certainty of irreparable harm to the Petitioner if the relief is not granted, a TRO should be granted.”
Even better, the Judge ordered that the surgeon did not have to put up a bond, which is normally required by law. By the stroke of the Judge’s pen, the surgeon could go back to work performing medically necessary services to Medicaid recipients, which, by the way is rare for an oral surgeon to accept Medicaid. This is a success for health care providers. Accusations of fraud should require independent corroboration and evidence of intent.
The story of The Three Billy Goats Gruff tells a tale of 3 billy goats, one puny, one small, and one HUGE. The first two billy goats (the puny and small) independently try to cross the bridge to a green pasture. They are blocked by a mean troll, who wants to eat the billy goats. Both billy goats tell the troll that a bigger billy-goat is coming that would satisfy the troll’s hunger more than the puny and small goats. The troll waits for the HUGE billy-goat, which easily attacks the troll to his death.
The moral: “Don’t be greedy.”
My moral: “You don’t always have to be HUGE, the puny and small are equally as smart.” – (They didn’t even have to fight).
The majority of Medicaid cards do not have expiration dates. Though we have expiration dates on many of our other cards. For example, my drivers’ license expires January 7, 2018. My VISA expires April 18, 2018.
Most Medicaid cards are annually renewed, as well. Someone who is eligible for Medicaid one year may not be eligible the next.
Our Medicaid cards, generally, have an issuance date, but not an expiration date. The thought is that requiring people to “re-enroll” yearly is sufficient for eligibility status.
Similar to my CostCo card. My Costco card expires annually, and I have to renew it every 12 months. But my CostCo card is not given to me based on my personal circumstances. I pay for the card every year, which means that I can use the card all year, regardless whether I move, get promoted, or decide that I never want to shop at CostCo again.
Medicaid cards, on the other hand, are based on a person’s or family’s personal circumstances.
A lot can happen in a year causing someone to no longer be eligible for Medicaid.
For example, a Medicaid recipient, Susan, could qualify for Medicaid on January 1, 2015, because Susan is a jobless and a single mother going through a divorce. She has a NC Medicaid card issued on January 1, 2015. She presents herself to your office on March 1, 2015. Unbeknownst to you, she obtained a job at a law office in February (Susan is a licensed attorney, but she was staying home with the kids when she was married. Now that she is divorced, she quickly obtained employment for $70,000/year, but does not contact Medicaid. Her firm offers health insurance, but only after she is employed over 60 days. Thus, Susan presents herself to you with her Medicaid card).
If Susan presents to your office on March 1, 2015, with a Medicaid card issued January 1, 2015, how many of you would double-check the patients eligibility in the NCTracks portal?
How many would rely on the existence of the Medicaid card as proof of eligibility?
How many of you would check eligibility in the NCTRacks portal and print screen shot showing eligibility for proof in the future.
The next question is who is liable for Susan receiving Medicaid services in March when she was no longer eligible for Medicaid, but held a Medicaid card and, according to the NCTracks portal, was Medicaid eligible??
- You, the provider?
Do you really have to be the HUGE billy goat to avoid troll-ish recoupments?
Susan’s example is similar to dental services for pregnant women on Medicaid for Pregnant Women (MPW). MPW expires when the woman gives birth. However, the dentists do not report the birth of the child, the ob/gyn does. Dentists have no knowledge of whether a woman has or has not given birth. See blog.
MPW expires upon the birth of the child, and that due date is not printed on the MPW card.
I daresay that the dentists with whom I have spoken have assured me that every time a pregnant woman presents at the dental or orthodontic offices that an employee ensures that the consumer is eligible for dental services under MPW by checking the NCTracks portal. (Small billy-goat). Some dentists go so far to print out the screenshot on the NCTracks portal demonstrating MPW eligibility (HUGE billy-goat), but such overkill is not required by the DMA Clinical Coverage Policies.
If the clinical policies, rules, and regulations do not require such HUGE billy-goat nonsense, how can providers be held up to the HUGE billy-goat standard? Even the puny billy-goat is, arguably, reasonably compliant with rules, regulations, and policies.
NCTracks is not current; it is not “live time.” Apparently, even if the woman has delivered her baby, the NCTracks portal may still show that the woman is eligible for MPW. Maybe even for months…
Is the eligibility fallacy that is confirmed by NCTracks, the dentists’ fault?
Well, over three (3) years from its go-live date, July 1, 2013, NCTracks may have finally fixed this error.
In the October 2015 Medicaid Bulletin, DHHS published the following:
Attention: Dental Providers
New NCTracks Edits to Limit Dental and Orthodontic Services for Medicaid for Pregnant Women (MPW) Beneficiaries
On Aug. 2, 2015, NCTracks began to deny/recoup payment of dental and orthodontic services for beneficiaries covered under the Medicaid for Pregnant Women (MPW) program if the date of service is after the baby was delivered. This is a longstanding N.C. Medicaid policy that was previously monitored through post-payment review.
According to N.C. Division of Medical Assistance (DMA) clinical coverage policy 4A, Dental Services:
For pregnant Medicaid-eligible beneficiaries covered under the Medicaid for Pregnant Women program class ‘MPW,’ dental services as described in this policy are covered through the day of delivery.
Therefore, claims for dental services rendered after the date of delivery for beneficiaries under MPW eligibility are outside the policy limitation and are subject to denial/recoupment.
According to DMA clinical coverage policy 4B,Orthodontic Services:
Pregnant Medicaid-eligible beneficiaries covered under the Medicaid for Pregnant Women program class ‘MPW’ are not eligible for orthodontic services as described in this policy.
Therefore, claims for orthodontic records (D0150, D0330, D0340, and D0470) or orthodontic banding (D8070 or D8080) rendered for beneficiaries under MPW eligibility are outside of policy limitation and are subject to denial/recoupment.
Periodic orthodontic treatment visits (D8670) and orthodontic retention (D8680) will continue to be reimbursed regardless of the beneficiary’s eligibility status at the time of the visit so long as the beneficiary was eligible on the date of banding.
Seriously? “Now I’m coming to gobble you up!!”
August 2, 2015, is over two years after NCTracks went live.
In essence, what DHHS is saying is that NCTracks was inept at catching whether a female Medicaid recipient gave birth. Either the computer system did not have a way for the ob/gyn to inform NCTracks that the baby was delivered, the ob/gyn did not timely submit such information, or NCTracks simply kept women as being eligible for MPW until, months later, someone caught the mistake. And, because of NCTracks’ folly, the dentists must pay.
How about, if the portal for NCTracks state that someone is eligible for MPW, then providers can actually believe that the portal is correct??? How about a little accountability, DHHS???
If you take MPW and want to avoid potential recoupments, you may need some pregnancy tests in your bathrooms.
DHHS is expecting all dentists to be the HUGE bill goat. Are these unreasonable expectations? I see no law, rules, regulations, or policies that require dentists to be the HUGE billy goat. In fact, the small and puny may also be compliant.
“You don’t always have to be HUGE, the puny and small are equally as smart.”
This blog pertains to all Medicaid providers regardless the state and regardless the Medicaid service provided.
Heard of the “Way Back Machine?” Perhaps, you should have!!!
You are a Medicaid provider, and you get a Tentative Notice of Overpayment (TNO) based on a Medicaid post-payment review by Public Consulting Group (PCG) or HMS in the extrapolated amount of $800,000 based on a sample size of 100 dates of service (DOS) and multiplied out to some extrapolation universe. You look at the extrapolation data and determine tha you were not even paid $800,000 during the time frame PCG determined was the universe. Or you say…What???…My documents complied with policy!
What do you do?
Sound like a horrible SAT question? Or sound like reality?
Hopefully you answered the former, but if you answered the latter, read on…
You’ve read my blogs before and understand the importance of appealing PCG or HMS’ extrapolated audit. But you do not have the financial means to hire an attorney. Or you honestly believe that if the Department of Health and Human Services (DHHS) reviewed your documents that its employees would also agree that PCG or HMS was wrong. Or you, personally, want to self-audit to determine the veracity of the audit. Or for whatever reason, you want to know whether PCG or HMS was correct for your own well-being.
How do you self-audit….the audit?
This may be one of the best “tips” I have given… (sorry for tooting my own horn, but, seriously, this blog can be helpful! I had a client that pointed out he/she had no idea about this “tip.”)
PCG and HMS conduct post-payment reviews. This means that PCG and HMS are looking at 1-2-3-year-old medical records.
Think about how quickly Medicaid changes. Now think about the number of times in which the DMA Clinical Policy applicable to your practice has been revised in the last few years.
When I say DMA Clinical Policy, I mean, if you provide Outpatient Behavioral Therapy, Policy 8C is applicable. If you provide dental services to Medicaid recipients, then Policy 4A is applicable. If you provide durable medical equipment (DME) to Medicaid providers, then Policy 5A is applicable. For a full list of the NC Medicaid policies, please click here.
The DMA Clinical Policies change significantly throughout the years. For example, DMA Clinical Policy 8A, revised January 1, 2009, allowed Community Support for adults and children. Yet Policy 8A, revised August 1, 2013, does not even allow Community Support (obviously Community Support was disallowed prior to August 2, 2013, but I am making a point). Also, now we have 16 unmanaged outpatient behavioral therapy visits for children, whereas a couple of years ago we had 26 unmanaged visits.
The point is that when PCG or HMS audits your particular service, the auditors are not always experts in your particular service, nor experts in your particular service’s Clinical Coverage Policy. See my blog on Dental Audits Gone Awry. In this blog I show the required (or lack thereof) education/experience to become a PCG auditor.
Therefore, it is imperative that you have access to the applicable Clinical Coverage Policy applicable for the DOS audited.
But, if you google 2009 clinical policy for NC Medicaid dental services, you can’t find it.
So how are you supposed to get access to these old policies that are being used (or mistakenly NOT being used) in Medicaid audits for the older DOS?
It is called: The Way Back Machine.
I know, cheesy! But I did not name it.
The “Way Back Machine” website looks like this:
The beauty of the “Way Back Machine” is that you can go to any current website. Copy the internet address. Paste that internet address into the “Way Back Machine” where you see “Way Back Machine” and a white box appears in which to type the website address. Type in the address, and hit the button “Take Me Back.” VOILA…time travel!!!!
Small Tip: I have found that if I use the internet address for the specific policy for which I am researching, I am less successful than if I use the general DMA Policy address found here. Once you get to the appropriate year on DMA’s general policy website, you can click on the specific policy in which you are interested.
Using the “Way Back Machine,” you can go to the DMA Clinical Policy (for whatever Medicaid service) applicable years ago.
You should never need to go more than 3 years back, as Recovery Audit Contractors (RACs) without permission by DHHS, cannot audit DOS more than three years ago.
But, you need to review the Clinical Policy for [fill-in-the-blank] Medicaid service 2 years ago? No problem! Use the “Way Back Machine” and travel back in time.
Wouldn’t it be great if we could travel back in time “for real?” Prior to RACS…prior to PCG…prior to HMS….? We need a “Way Back Machine” for Medicaid providers (and me) “for real!”
“To err is human…” Alexander Pope
Remember that show “TV”s Bloopers and Practical Jokes?” I think Dick Clark was in it (maybe not…it was a long time ago…I watched reruns). Anyway, I remember laughing so hard at some of the bloopers. I also like when, after a movie is over, the director highlights the casts’ bloopers. Something about watching someone else mess up that makes me realize everyone is human.
But accidentally erring is completely different (and a lot funnier) than a RAC auditor misapplying a clinical policy, be called out on it, and continue to audit the same erroneous way without regard or fortitude to change.
I have said over and over, no health care provider who accepts Medicaid is safe from the grasp of the over-zealous, under-trained Medicaid auditors. Welcome, dentists, to the “oh-so-ever-interesting-Medicaid-three-ring-circus.” Here are your Tentative Notice of OverPayments (TNO). And here are your bloopers.
I’ve seen a few common themes in the claim audit findings for a post-payment review of a dental practice, but want to discuss one re-occurring theme…one that has poked its rearing head more than most other issues I have seen, thus far.
RAC auditor recoups the Medicaid reimbursements because: The “attending provider” NPI number did not match the “provider rendering the services” NPI number.
The RAC auditor cites DMA Clinical Policy 4A as the source of the rule that the attending provider and rendering provider numbers must be the same.
DMA Clinical Policy 4A states, in pertinent part, “Enter the attending provider’s NPI for the individual dentist rendering service. (This number must correspond to the signature in field 53.)” (Field 53 is the field for the treating provider).
Yet,wait, young auditor, what year DMA Clinical Policy 4A are you using? 2013? Or the year that is applicable to the date of service (DOS) you are auditing?
Because prior to the 2013 Clinical Policy 4A, earlier 4A Policies read as such: “Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”
Should versus must….must versus should…
Look at these examples:
- People should protect the environment.
- People should be kind to others.
- You should go see “Man of Steel;” it is very good.
- Thou shall not murder. (Shall is an old form of must, and a bit more British).
- People must stop completely at a stop sign.
- You must stop talking!
See the difference? If someone tells me that I should go see an art exhibit, I will say, “Thank you. I will see if I can fit it in my schedule.” If someone tells me that I must abide by a rule, I will ask, “What will be the penalty if I do not?”
“Should” denotes a suggestion. “Must” denotes a command.
So going back to…
“Enter the attending provider’s NPI for the individual dentist rendering service. (This number should correspond to the signature in field 53.)”So…if the number “SHOULD” correspond, then, obviously, the number “MUST” not correspond. Right?
Bloopers are funny. Redundant errors are not.