Category Archives: Local Management Entity

Eastpointe Sues DHHS, Former Sec. Brajer, Nash County, and Trillium Claiming Conspiracy! (What It Means for Providers)

In HBO’s Game of Thrones, nine, noble, family houses of Westeros fight for the Iron Throne – either vying to claim the throne or fighting for independence from the throne.

Similarly, when NC moved to the managed care organizations for Medicaid behavioral health care services, we began with 12 MCOs (We actually started with 23 (39 if you count area authorities) LME/MCOs, but they quickly whittled down to 11). “The General Assembly enacted House Bill 916 (S.L. 2011-264) (“H.B. 916) to be effective June 23, 2011, which required the statewide expansion of the 1915(b)/(c) Medicaid Waiver Program to be completed within the State by July 1, 2013.” Compl. at 25. Now the General Assembly is pushing for more consolidation.

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game of thrones

Now we have seven (7) MCOs remaining, and the future is uncertain. With a firehose of money at issue and the General Assembly’s push for consolidation, it has become a bloody battle to remain standing in the end, because, after all, only one may claim the Iron Throne. And we all know that “Winter is coming.”

Seemingly, as an attempt to remain financially viable, last week, on Thursday, June 8, 2017, Eastpointe, one of our current MCOs, sued the Department of Health and Human Services (DHHS), Nash County, Trillium Health Resources, another MCO, and former secretary Richard Brajer in his individual and former official capacity. Since the Complaint is a public record, you can find the Complaint filed in the Eastern District of NC, Western Division, Civil Action 5:17-CV-275. My citations within this blog correspond with the paragraphs in the Complaint, not page numbers.

Eastpointe’s Complaint wields a complex web of conspiracy, government interference, and questionable relationships that would even intrigue George R. R. Martin.

The core grievance in the lawsuit is Eastpointe alleges that DHHS, Trillium, Nash County, and Brajer unlawfully conspired and interfered with Eastpointe’s contract to manage behavioral health care services for its twelve (12) county catchment area, including Nash County.  In 2012, Nash County, as part of the The Beacon Center, signed a contract and became part of a merger with Eastpointe being the sole survivor (Beacon Center and Southeastern Regional Mental Health were swallowed by Eastpointe). At the heart of Eastpointe’s Complaint, Eastpointe is alleging that Nash County, Trillium, DHHS, and Brajer conspired to breach the contract between Eastpointe and Nash County and unlawfully allowed Nash County to join Trillium’s catchment area.

In June 2013, the General Assembly, pursuant to Senate Bill 208 (S.L. 2013-85 s. 4.(b)), appended N.C.G.S. § 122C-115 to include subparagraph (a3), permitting a county to disengage from one LME/MCO and align with another with the approval of the Secretary of the NCDHHS, who was required by law to promulgate “rules to establish a process for county disengagement.” N.C.G.S. § 122C-115(a3) (“Rules”) (10A N.C.A.C. 26C .0701-03).

Why does it matter whether Medicaid recipients receive behavioral health care services from providers within Trillium or Eastpointe’s catchment area?? As long as the medically necessary services are rendered – that should be what is important – right?

Wrong. First, I give my reason as a cynic (realist), then as a philanthropist (wishful thinker).

Cynical answer – The MCOs are prepaid. In general and giving a purposely abbreviated explanation, the way in which the amount is determined to pre-pay an MCO is based on how many Medicaid recipients reside within the catchment area who need behavioral health care services. The more people in need of Medicaid behavioral health care services in a catchment area, the more money the MCO receives to manage such services. With the removal of Nash County from Eastpointe’s catchment area, Eastpointe will lose approximately $4 million annually and Trillium will gain approximately $4 million annually, according to the Complaint. This lawsuit is a brawl over the capitated amount of money that Nash County represents, but it also is about the Iron Throne. If Eastpointe becomes less financially secure and Trillium becomes more financially secure, then it is more likely that Eastpointe would be chewed up and swallowed in any merger.

Philanthropic answer – Allowing Nash County to disengage from Eastpointe’s catchment area would inevitably disrupt behavioral health care services to our  most fragile and needy population. Medicaid recipients would be denied access to their chosen providers…providers that may have been treating them for years and created established trust. Allowing Nash County to disembark from Eastpointe would cause chaos for those least fortunate and in need of behavioral health care services.

Eastpointe also alleges that DHHS refused to approve a merger between Eastpointe and Cardinal purposefully and with the intent to sabotage Eastpointe’s financial viability.

Also in its Complaint, Eastpointe alleges a statewide, power-hungry, money-grubbing conspiracy in which Brajer and DHHS and Trillium are conspiring to pose Trillium as the final winner in the “MCO Scramble to Consolidate,” “Get Big or Die” MCO mentality arising out of the legislative push for MCO consolidation. Because, as with any consolidation, duplicate executives are cut.

Over the last couple years, Eastpointe has discussed merging with Cardinal, Trillium, and Sandhills – none of which occurred. Comparably, Joffrey Lannister and Sansa Stark discussed merging. As did Viserys and Illyrio wed Daenerys to Khal Drogo to form an alliance between the Targaryens.

Some of the most noteworthy and scandalous accusations:

Against Trillium:

Leza Wainwright, CEO of Trillium and director of the NC Council of Community MH/DD/SA Programs (“NCCCP”) (now I know why I’ve never been invited to speak at NCCCP). Wainwright “brazenly took actions adverse to the interest of Eastpointe in violation of the NCCCP mission, conflicts of interest policy of the organization, and her fiduciary duty to the NCCCP and its members.” Compl. at 44.

Robinson, Governing Board Chair of Trillium, “further informed Brajer that he intended for Trillium to be the surviving entity in any merger with Eastpointe and that “any plan predicated on Trillium and Eastpointe being coequal is fundamentally flawed.”” Compl. at 61.

“On or about May 11, 2016, Denauvo Robinson (“Robinson”), Governing Board Chair of Trillium wrote Brajer, without copying Eastpointe, defaming Eastpointe’s reputation in such a way that undermined the potential merger of Eastpointe and Trillium.” Compl. at 59.

“Robinson, among other false statements, alleged the failure to consummate a merger between Eastpointe, CoastalCare, and East Carolina Behavioral Health LMEs was the result of Eastpointe’s steadfast desire to maintain control, and Eastpointe’s actions led those entities to break discussions with Eastpointe and instead merge to form Trillium.” Compl. at 60.

“Trillium, not Nash County, wrote Brajer on November 28, 2016 requesting approval to disengage from Eastpointe and to align with Trillium.” Compl. at 69.

Against DHHS:

Dave Richards, Deputy Secretary for Medical Assistance, maintains a “strong relationship with Wainwright” and “displayed unusual personal animus toward Kenneth Jones, Eastpointe’s former CEO.” Compl. at 47.

Brajer made numerous statements to Eastpointe staff regarding his animus toward Jones and Eastpointe. “Brajer continued to push for a merger between Eastpointe and Trillium.” Compl. at 53.

“On December 5, 2016, the same day that former Governor McCrory conceded the election to Governor Cooper, Brajer wrote a letter to Trillium indicating that he approved the disengagement and realignment of Nash County.” Compl. at 72.

“On March 17, 2016, however, Brajer released a memorandum containing a plan for consolidation of the LME/MCOs, in which NCDHHS proposed Eastpointe being merged with Trillium.” Compl. at 55.

Brajer’s actions were “deliberately premature, arbitrary, and capricious and not in compliance with statute and Rule, and with the intent to destabilize Eastpointe as an LME/MCO).” Compl. at 73.

“Brajer conspired with Nash County to cause Nash County to breach the Merger Agreement.” Compl. at 86.

Brajer “deliberately sought to block any merger between Eastpointe and other LME/MCOs except Trillium.” Compl. at 96.

“Brajer and NCDHHS’s ultra vires and unilateral approval of the Nash County disengagement request effective April 1, 2017 materially breached the contract between Eastpointe and NCDHHS. Equally brazen was Brajer’s calculated failure to give Eastpointe proper notice of the agency action taken or provide Eastpointe with any rights of appeal.” Compl. at 101.

Against Nash County

“To date, Nash County is Six Hundred Fifty Three Thousand Nine Hundred Fifty Nine Thousand and 16/100 ($653,959.16) in arrears on its Maintenance of Efforts to Eastpointe.” Compl. at 84.

“While serving on Eastpointe’s area board, Nash County Commissioner Lisa Barnes, in her capacity as a member of the Nash County Board of Commissioners, voted to adopt a resolution requesting permission for Nash County to disengage from Eastpointe and realign with Trillium. In so doing, Barnes violated her sworn oath to the determent of Eastpointe.” Compl. at 85.

What Eastpointe’s lawsuit could potentially mean to providers:

Eastpointe is asking the Judge in the federal court of our eastern district for a Temporary Restraining Order and Preliminary Injunction prohibiting Nash County from withdrawing from Eastpointe’s catchment area and joining Trillium’s catchment area.  It is important to note that the behavioral health care providers in Eastpointe’s catchment area may not be the same behavioral health care providers in Trillium’s catchment area. There may be some overlap, but without question there are behavioral health care providers in Trillium’s catchment area that are not in Eastpointe’s catchment area and vice versa.

If Eastpointe is not successful in stopping Nash County from switching to Trillium’s catchment area, those providers who provide services in Nash County need to inquire – if you do not currently have a contract with Trillium, will Trillium accept you into its catchment area, because Trillium runs a closed network?!?! If Trillium refuses to include Nash County’s behavioral health care providers in its catchment area, those Nash County providers risk no longer being able to provide services to their consumers. If this is the case, these Nash County, non-Trillium providers may want to consider joining Eastpointe’s lawsuit as a third-party intervenor, as an interested, aggrieved person. Obviously, you would, legally, be on Eastpointe’s side, hoping to stay Nash County’s jump from Eastpointe to Trillium.

Even if Eastpointe is successful in stopping Nash County’s Benedict Arnold, then, as a provider in Eastpointe’s catchment area, you need to think ahead. How viable is Eastpointe? Eastpointe’s lawsuit is a powerful indication that Eastpointe itself is concerned about the future, although this lawsuit could be its saving grace. How fair (yet realistic) is it that whichever providers happen to have a contract with the biggest, most powerful MCO in the end get to continue to provide services and those providers with contracts with smaller, less viable MCOs are put out of business based on closed networks?

If Nash County is allowed to defect from Eastpointe and unite with Trillium, all providers need to stress. Allowing a county to abscond from its MCO on the whim of county leadership could create absolute havoc. Switching MCOs effects health care providers and Medicaid recipients. Each time a county decides to choose a new MCO the provider network is upended. Recipients are wrenched from the provider of their choice and forced to re-invent the psychological wheel to their detriment. Imagine Cherokee County being managed by Eastpointe…Brunswick County being managed by Vaya Health…or Randolph County being managed by Partners. Location-wise, it would be an administrative mess. Every election of a county leadership could determine the fate of a county’s Medicaid recipients.

Here is a map of the current 7 MCOs:

new mco map

All behavioral health care providers should be keeping a close watch on the MCO consolidations and this lawsuit. There is nothing that requires the merged entity to maintain or retain the swallowed up entities provider network. Make your alliances because…

“Winter is coming.”

The Merger of the MCOs!

Breaking News: From DHHS

Raleigh, NC

State health officials announced today that the state- and Medicaid-funded Local Management Entities/Managed Care Organizations providing mental health, intellectual and developmental disability and substance use services to North Carolina citizens will be consolidating into four service regions across the state.

Further consolidation will improve quality of services, accessibility, accountability and long-term sustainability.

“I’m a strong believer in LME/MCOs,” said Rick Brajer, Secretary of the Department of Health and Human Services. “These populations deserve dedicated management.”

The newly consolidated service areas are:

  • North Central Region: CenterPoint Human Services and Cardinal Innovations Healthcare Solutions will be merging
  • South Central Region: Sandhills Center and Alliance Behavioral Healthcare will be merging
  • Eastern Region: Eastpointe and Trillium Health Resources will be merging
  • Western Region: Partners Behavioral Health Management and Smoky Mountain LME/MCO will be merging

newmco

North Carolina Medicaid Reform Update – Round and Round She Goes

Given how long the Medicaid reform discussions have been going on at the legislature, you may be glazed over by now. Give me the memo when they pass something, right? Fair enough, let’s keep it brief. Where do things stand right now?

Last Wednesday, the Senate staked out its position in the ongoing debate between the House and the McCrory administration.

The Senate’s newest proposal is an unusual mix of different systems and new ideas. Not willing to commit to one model for the whole Medicaid program, the latest version of the bill includes something new called Provider Led Entities, or “PLEs.” PLEs are yet the latest in the alphabet soup of different alternatives to straight fee-for-service billing for Medicare/Medicaid. You’ve all heard of HMOs, PPOs, MCOs, and ACOs. PLEs appear to be similar to ACOs, but perhaps for political reasons the Senate bill sponsors saw the need to call the idea something different.  See Knicole Emanuel’s blog.

In any event, as the name suggests, such organizations would be provider-led and would be operated through a capitated system for managing the costs of the Medicaid program. The Senate bill would result in up to twelve PLEs being awarded contracts on a regional basis.

PLEs are not the only addition to the Medicaid alphabet soup that the Senate is proposing in its version of HB 372. The Senate has also renewed its interest in taking Medicaid out of the hands of the N.C. Department of Health and Human Services entirely and creating a new state agency, the Department of Medicaid (“DOM”).

(One wonders whether the continual interest in creating a new Department of Medicaid independent of the N.C. Department of Health and Human Services had anything to do with embattled DHHS Secretary Wos stepping down recently.)

The Senate also proposes creating a Joint Legislative Oversight Committee on Medicaid (“LOC on Medicaid”).

But creating the DOM and using new PLEs to handle the provision of Medicaid services is not the whole story. Perhaps unwilling to jump entirely into a new delivery system managed by a wholly new state agency, the Senate bill would keep LME/MCOs for mental health services in place for at least another five years. Private contractor MCOs would also operate alongside the PLEs. The North Carolina Medicaid Choice coalition, a group which represents commercial MCOs in connection with the Medicaid reform process, is pleased.

One very interesting item that the Senate has included in its proposed legislation is the following requirement: “Small providers shall have an equal opportunity to participate in the provider networks established by commercial insurers and PLEs, and commercial insurers and PLEs shall apply economic and quality standards equally regardless of provider size or ownership.” You can thank Senator Joel Ford of Mecklenburg County for having sponsored this amendment to the Senate version of House Bill 372.

By pulling the Medicaid reform proposal out of the budget bill, the matter appears headed for further negotiation between the House and the Senate to see if the two can agree this year, unlike last year.

By legislative standards, that counts as forward progress… Here come the legislative discussion committees to hash it out more between the two chambers. We will keep a close eye on the proposals as they continue to evolve.

By Robert Shaw

Lawyer photo

 

CMS Declares the Payment Structure for the MCOs Violates A-87…”So What Happens Now?”

Hey, everybody!! Anyone miss me?  I feel like I haven’t blogged in forever.  And, the thing is, I am so excited about this blog!! I actually found out about the CMS letter last week, but have had zero time to blog (had a very intense, two-day hearing).  So I apologize if you have already seen the CMS letter…but, for others, read on…

I have to say…I love it when I am right!

In North Carolina, we set up managed care organizations (MCOs) to manage behavioral health care for Medicaid.  For the past year, I have been blogging that the MCOs’ payment arrangement with the Department of Health and Human Services (DHHS) is fishy.  These MCOs are pre-paid.  Their profit hinges on spending less.  In order to spend less, the MCOs deny medically necessary services (usually the most expensive) and terminate quality health care providers’ Medicaid contracts.  I mean, come on, why authorize more services and contract with more providers if doing so would directly decrease your profit?

See my blogs: “NC MCOs: The Judge, Jury and Executioner.” Or “How Managed Care Organizations Will be the Downfall of Mental Health in NC.” 

Apparently, I am not the only person concerned with how the MCOs are compensated.

On October 24, 2013, the Centers for Medicare and Medicaid Services (CMS), which is the federal agency charged with overseeing Medicare and Medicaid (as in, if CMS says jump and you accept federal money for Medicaid, you jump) sent correspondence to our Acting Medicaid Director Sandy Terrell. (Remember Carol Steckel abruptly left our Director position, leaving Terrell holding the conch…I bet that conch is getting mighty heavy!).

CMS’ correspondence states that, during its review of NC’s contracts between DHHS and the LME/MCOs, CMS determined an issue.  Specifically, CMS determined that the arrangement between DHHS and the MCOs may be classified as “subgrants or intergovernmental agreements that are subject to the cost principles set forth in the Office of Management and Budget (OMB) Circular A-87 (A-87).”

So what? Who cares if the arrangement between the MCOs and DHHS is classified as a subgrant subject to A-87? Blah…blah….blah….right?

Wrong!

If the MCOs are subject to A-87, then the use of Medicaid funds is limited to “allowable costs.”  Why is that important?  Allowable costs do NOT include….

…..drum roll….

PROFIT!!!!! and other increments above cost.

BOOO…freakin’ YA!

For a rant and rave about the MCOs’ profit, high salaries and expensive health care benefits, see my blog: “NC Taxpayers Demand Accountability as to Behavioral Health Care Medicaid Funds (And That Medicaid Recipients  Reap the Benefit of Such Funds).

If you take away the ability for the MCOs to profit off of our taxpayers’ Medicaid money, then you take away the monetary incentive for the MCOs to deny medically necessary services and to terminate provider contracts.

Know what else you take away? The desire to be an MCO.

So what happens now? Just because CMS wrote a letter to NC saying it does not agree with our payment arrangement with the MCOs, does that mean that we have to immediately stop and desist from paying the MCOs?  No. 

In fact, CMS also states that it “recognize[s] that changing a long-standing delivery system will take time and potentially state legislation.  We know the process begins with a frank discussion of these issues…”

CMS did, however, provide a couple of choices for us (if, in fact, A-87 does apply):

1. Openly procuring behavioral health services and making the counties compete on the same basis as with any other commercial entity; or

2. Comply with A-87 by changing the payment methodology and reimburse only for the cost of services actually rendered  plus administration costs.

I am actually doing the Snoopy dance as you read this.

Herein lies the problem…How many times in the last 10 years, has NC changed the mental health care system?  How many mess-ups?  How many Medicaid recipients have not received medically necessary mental health care service because of NC changing the mental health system over and over?

So what happens now?

On a sidenote, I love North Carolina’s response to CMS.  Over a month after receipt of the CMS letter, on November 27, 2013, DHHS finally responds with a short, 2 paragraph letter signed by Sandy Terrell.  “As you might expect, North Carolina was surprised to receive the letter outlining [CMS’] concerns regarding the cost principles set forth in the Office of Management and Budget (OMB) Circular A-87…”

NC was surprised???

Not I.

I am reminded of Andrew Lloyd Webber’s “Evita,” when Eva Peron follows her lover to Buenos Aires only to discover he is married with children.  She has all her belongings in a suitcase, turns from her ex-lover’s home and sings, “Another Suitcase in Another Hall.”

So what happens now
(Another suitcase in another hall)
So what happens now
(Take your picture off another wall)
Where am I going to
(You’ll get by you always have before)
Where am I going to

Just like Eva Peron, NC had full faith the MCOs, enacted them statewide, and, then, not even a year into the statewide MCO progam…BOOM! The MCOs are married with kids.

So what DOES happen now?

In the short-term, probably nothing.  And, there is a chance that nothing happens in the long-term.  In NC’s response, Ms. Terrell wrote that “[w]e believe we have information to share with CMS that should alleviate those concerns…”

Most likely, Ms. Terrell will explain to CMS how the wonderful MCOs are completely objective and how they save NC millions in Medicaid money…We will see whether CMS drinks DHHS’ Kool-Aid…

If, on the other hand, CMS demands change, in the long-term, there will be great change.

If we go with Door #1…”Openly procuring behavioral health services and making the counties compete on the same basis as with any other commercial entity,” what will that look like?

I believe CMS is envisioning not allowing the MCOs to monopolize their catchment areas.

Here are the MCOs “jurisdictions” today:

MCOs as of October 2013

And more mergers are currently being contemplated.  But, for now, if you live in Mecklenburg county and need behavioral health care services you must go through MeckLINK.  Raleigh?  Alliance is your MCO.  You have no choice of MCOs and must use a provider within the MCO’s catchment area.

The way I understand CMS’ proposal, if you live in Mecklenburg county, you would not have to receive services from or (if you are a provider) have a contract with MeckLINK.  You could, but there would other options as well.  Door #1 is what I call, “Busting up the Baby Bells!”

What about Door #2? “Comply with A-87 by changing the payment methodology and reimburse only for the cost of services actually rendered  plus administration costs.”

For this option, I believe, that the MCOs could remain where they are, but contract to be paid some, sort of, “cost-plus.”  No more…if you do not spend it, it is your profit. Theoretically if the money were not spent, it would be returned to DHHS, or, somehow, kept for additional services.  Bye, bye, monetary incentive to deny services and terminate providers!

Door #2 is what I call, “Busting up the Ponzi scheme!”

No matter which door NC chooses, it has to be better than our current situation with the MCOs.

Ok, I stopped doing the Snoopy dance.

Because, in reality, there will be change.  We do not know what the changes will be.  And, dag on it, change is scary, especially we are talking about changes to mental health services for Medicaid recipients.

As Eva Peron says, “Where [are we] going to?”

Then, if you have seen the motion picture “Evita,” Antonio Banderes sings, “Don’t ask anymore…”

DHHS’ Robotic Certification of MCOs…So Stepford-ish!

Senate Bill 208, Session Law 2013-85, requires the Secretary of the Department of Health and Human Services (DHHS) to conduct certifications to ensure the effectiveness of the managed care organizations (MCOs), and the first certification was to be before August 1, 2013.  N.C. Gen. Stat. 122C-124.2 was added as a new section by Session Law 2013-85 and states:

“In order to ensure accurate evaluation of administrative, operational, actuarial and financial components, and overall performance of the LME/MCO, the Secretary’s certification shall be based upon an internal and external assessment made by an independent external review agency in accordance with applicable federal and State laws and regulations.”

In order to comply with the statute, Secretary Wos conducted the first certification and published the findings July 31, 2013.  Well, actually Carol Steckel signed the certification and sent it to Sec. Wos (technically Wos did not conduct the certification, but she certified the content).

Steckel’s certification states that “DMA is attesting that all ten [MCOs] are appropriate for certification.”

Strong language!

Attest means to provide or service as clear evidence of.  See Google.  Clear evidence?  That the MCOs are compliant?

One of the areas that was certified was that the MCOs are timely paying providers, that the MCOs are accurately processing claims, and that the MCOs are financially accurate (whatever that means).

Here is the chart depicting those results:

Compliance chart2

Wow.  Who would have guessed that East Carolina Behavioral Healthcare (ECBH) is 100% compliant as to timely payments to providers, 100% compliant as to accuracy of claim processing, and 100% compliant as to financial accuracy.  ONE HUNDRED PERCENT!! As in, zero noncompliance!!

I mean…Wow! Wow! Wow! Wow! Wow!

Have you ever read “The Stepford Wives?” The book was published in 1972 by Ira Levine. 

Basically, the main character, Joanna Eberhart and her husband move to Stepford, Connecticut (a fictional place).  Upon arrival, Joanna and spouse (I can’t remember his name, so we will call him Ed) notice that all the woman are gorgeous, the homes are immaculate, and the woman are all perfectly submissive to their husbands (how boring would that be??). As time passes, Joanna becomes suspicious of the zombie-like actions of all the wives.

She and her friend Bobbie (until Bobbie turns zombie-like) research the past of the Stepford citizens and discover that most of the wives were past, successful business women and feminists, yet become zombie-like.  At one point, they even write to the EPA inquiring as to possible contamination in Stepford.

After Bobbie turns zombie-like, Joanna fears that the women are changed into robots.  She decides to flee Stepford, but is caught and is changed into a robot.  The books concludes with Joanna happily and submissively walking the grocery store with a large smile and robotic movements, and another wife moving into Stepford.

That book coined the word “Stepford” to mean someone acting as a robot, submissive, or blissfully following orders.

I am not saying that the DMA certification was conducted as a Stepword wife…I am merely explaining that I was reminded of “The Stepford Wives” when I read the certification.  Maybe there is no analogy to be made…you decide.

Upon quick review of the certification, a number of questions arise in my mind.  Such as…didn’t anyone proofread this??? Under each graph, it states “Data is based on a statistical sample of Medicaid claims processed between February and May of 2013 for each LME-MCO.”  Data is???

Hello!…It is data ARE, not data is!!  Data are; datum is.

Besides the obvious grammar issue, I am concerned with the actual substance of the certification. 

Nothing is defined. (Not surprising for an entity that doesn’t know data are plural).  Except “compliant” is defined on the last page as “A finding of  “compliant” means that HMS found that the LME-MCO was compliant with the requirements set forth in SB 208.”  That is like saying, “Beautiful is hereby defined as whatever I say is beautiful.”  That is not a definition.

And HMS? HMS, as in, the company North Carolina hired as a Medicaid recovery audit contractor (RAC)?  I do not know if HMS the RAC and HMS the credentialing company is the same company…but the names sure are similar.

Speaking of RACs, going back to the basis of the data…”a statistical sample?” (Which is not defined?)  What is a statistical sample?  Is this a statistical sample like Public Consulting Group’s (PCG) in extrapolation audits?  From where does the sample come?

Looking at the timeliness of provider payments, the lowest percentage is CoastalCare.  At 93.06%.  But what does that mean?  That CoastalCare takes longer than 30 days to pay providers in 6.94% of cases?  And what is noncompliance?  80%? 20%?  Because where I went to school, a 93% is a ‘B.’ Yet 93%, here, is “compliant.”  Does “compliant” mean not failing?

What is “claims processing accuracy?”  Does that mean that ECBH was 100% correct in processing (or not processing) claims based on medical necessity (or failure to meet medical necessity)?  or, merely, that the process by which ECBH processes claims (regardless of whether the process abides by clinical policy), does not deviate; therefore ECBH is 100% compliant?

How does one determine 100% compliance?  Does this certification mean that between February and May 2013, Sandhills paid 100% providers timely.  That for 4 months, Sandhills was not late for even one provider?  Because Sandhills had 100% in relation to timely provider payments.  (Personally, I would be extremely hesitant to attest for any entity achieving 100% compliance.  How easy would that be to disprove?? A journalist finds one mistake and the certification loses all credibility).

The next chart demonstrates the MCO’s solvency.

Solvency

I have to admit…this chart makes very little sense to me.  The only information we get is that greater than 1.0 equals compliance.  If you ask me, being greater than 1 seems like a very low bar.

But, if greater than 1 equals compliance, then, applying Logic 101, the higher the number the more solvent.  I could be wrong, but this makes sense to me.

Using that logic, in February MeckLINK was N/A (not “live” yet).  March: 1.32.  April: 1.54. May: 1.80.  Tell if I’m wrong, folks, but it appears to me that MeckLINK, according to HMS and unknown data, that MeckLINK is becoming more solvent as the months pass.

And this is the same MCO that WFAE cited was using accounting tricks to remain in the black????

And the same MCO that, come March 1, 2014, must be acquired by another MCO?  And then there were 9

Under the chart demonstrating the “Solvency Review,” it states, “Data is (sic) base don financial information…”  Duh!! I thought we’d review employee personnel records to determine solvency!! (Although…that could be helpful because we could see employee salaries…I’m just saying…).

What the certification does not say is financial information from whom?  The MCOs? 

Secretary Wos: “Hey, Alliance, are you solvent?”
Alliance: “Yes, Secretary.”
Secretary Wos:  “Oh, thank goodness! I wouldn’t know what to do if you were not!!”

Going back to the finding of compliance means HMS determined compliance…Does that mean that HMS compiled all the data?  What about the intradepartmental monitoring team?  Does the intradepartmental monitoring team just authorize whatever HMS says it finds?  Almost…Stepford-like.

The letter from Steckel showing DMA’s attestation of all 10 MCOs being appropriate for certification says just that…DMA is attesting that all 10 MCOs are appropriate for certification.  No analysis.  No individual thinking.  Almost…Stepford-like.

Then the letter from Sec. Wos to Louis Pate, Nelson Dollar, and Justin Burr (legislatures) regurgitates Steckel’s letter.  Except Wos’ letter says “I hereby certify that the following LME-MCOs are in compliance with the requirements of NC Gen. Stat 122C-124.2(b).”

Again, no analysis.  No independent thinking.  Steckel’s letter is dated July 31, 2013; Sec. Wos’ letter is dated July 31, 2013.  Wos did not even take ONE DAY to verify Steckel’s letter.

Zombie-like.

Stepford-like.

What good is a statute requiring DHHS to certify the MCOs every 6 months if each certification is attested to by a Stepford??

The “Single State Agency” Medicaid Requirement: The Buck Stops With Whom?????

What is THE most important law? I’m sure most people would have a differing opinion.  Maybe you think the most important law is that it is against the law to murder a person. Or to not drive drunk.

Personally, I think the most important law of the United States begins, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  The Constitution of the United States.

Well, in the Medicaid arena, in my opinion, the most important law is the “single state entity” requirement.

Why is the “single state entity” requirement so important? 

Have any of you tried to read Title XIX of the Social Security Act? Or the 1915(b)(c) Innovations Waiver? The State Plan?

If you have, then you know how difficult Medicaid laws, rules and regulations are to read, much less understand.  It’s a bit like reading Chaucer in its original language, Middle English, in kindergarten…not impossible, you can sound out all the words…but, in the end, you have no idea what it was you just read.  Wife of whom?

What if we allowed 10 different companies, each with different employees, to implement/interpret Medicaid laws, rules, and regulations?

Each of the 10 companies would read the Medicaid laws, rules and regulations differently.

We would not have a statewide consistent Medicaid system.

Medicaid is tough enough, we, at least, need one agency to implement and interpret all of Medicaid.

Another example is if, suddenly, we had no president or federal government.  And all 50 states’ governors tried to run the country, as a country and not 50 independent states.  We would, obviously, have 50 different “leaders” trying to run one country with 50 different ideas as to how the country should be run.  There would be no nationwide uniformity.

Hence, the “single state agency” requirement.  DHHS must implement/administer/interpret all Medicaid decision for the sake of uniformity.

Not only is the “single state agency” requirement logical, it is federal law.

42 U.S.C. 1396 a(a)(5) requires states participating in the Medicaid program to designate a “single state entity” to operate the Medicaid program.  

In North Carolina, that “single state entity” is the Department of Health and Human Services (DHHS).

Remember the sign on Harry Truman’s desk? “The Buck Stops Here!” Meaning, as a president, President Truman understood that anything that went wrong in any federal department was on his shoulders.  He was the captain of the ship.  He was the big cheese. The buck stopped with Truman.

In NC Medicaid, the buck stops with DHHS.

According to federal law, the “single state entity” may contract with entities, such as Managed Care Organizations (MCOs), Recovery Audit Contractors (RACs), etc. to assist with certain functions of the Medicaid program.  But…that “single state entity” CANNOT delegate its authority to “issue policies, rules, and regulations on program matters.”  42 C.F.R. 431.10.

Moreover, the “single state entity” MUST NOT allow a contracted company to have authority to change or disapprove an administrative decision of the “single state entity.”  42 U.S.C. 1396a(a)(5) states that “either provide for the establishment or designation of a single State agency to administer or to supervise the administration of the plan.”

Similarly, in K.C. v. Shipman, the 4th Circuit Court of Appeals states that:

“If other State or local agencies or offices perform services for the Medicaid agency, they must not have the authority to change or disapprove any administrative decision of that agency, or otherwise substitute their judgment for that of the Medicaid agency with respect to the application of policies, rules, and regulations issued by the Medicaid agency.  42 C.F.R. § 431.10(e)(3).” (emphasis added).

Ok, pretty clear, right?

Then how can an MCO determine that a provider’s Medicaid contract should be terminated without DHHS’ authorization (which, I believe, is a substitute of judgment in applying policies)? How can an MCO determine that a Medicaid recipient’s services should be reduced (another substitution of judgment in applying policies) without DHHS’ authorization?

If you ask me, the MCOs cannot terminate a provider’s Medicaid contract or reduce services without DHHS’ authorization.  Substituting an MCO’s judgment in applying Medicaid policies is a violation of the “single state entity” requirement.

Yet….the MCOs are doing just that.

Even more scary is the recent MCO Communication Bulletin #55, dated August 2, 2013, which states:

MCO Communication Bulletin #55

Date:                August 2, 2013                                                            

To:                   LME-MCO CEOs

From:               Courtney Cantrell, Assistant Director, Behavioral Health Section

Subject:         Provider Appeals

Currently DMA is reviewing LME-MCO contract terminations and service denials when appealed due to LME-MCO manuals stating that appeals of denials should come to DMA prior to Office of Administrative Hearings (OAH).  DMA should not be a part of the LME-MCO appeals process.  We ask that you please correct your manuals by August 7, 2013, and share with your contract managers so that these appeals can be appropriately routed.

Yes, I agree, the author could have written this Communication Bulletin is a way that would have been easier to read. But, maybe that is the point.

I interpret this bulletin to say:

Right now, the MCO manuals instruct MCOs to send DMA all contract terminations and service denials prior to going to the OAH (litigation).  But, DMA does not want to be a part of the appeal process anymore.  Therefore, revise all MCO manuals to reflect that MCOs no longer need to send DMA contract terminations and service denials, even if those denials and terminations are appealed.

I also infer from this language that, since the inception of MCOs, DMA has not reviewed any contract terminations or service denials unless these denials and terminations are appealed.

 DMA does not review prior to the MCO terminating or denying services???? Where is the supervision? Where is the “single state agency?”

And then, even scarier, Bulletin #55 seems to say that DMA wants to be involved even LESS.

In essence, we have 10 MCOs, 10 jurisdictions, 10 interpretations of Medicaid laws, rules and regulations.  And no statewide uniformity.

I guess the buck stops with East Carolina Behavioral Health (ECBH)…and MeckLINK…and Alliance…and Smoky Mountain Center…and Cardinal Innovations…and Centerpoint Human Services…and CoastalCare…and EastPointe…and Partners Behavioral Health Management…and Sandhills…and (at least for a short time) Western Highlands…

That is a lot of bucks.

Tip #6: Avoiding Medicaid Recoupments

This tip, Tip #6, is devoted to Outpatient Behavioral Health providers.

Outpatient Behavioral Health providers are licensed psychologists or psychologists who provide mental health counseling to Medicaid recipients.In light of the recent mass murder in Connecticut, I believe that most people would agree that the ability for anyone to receive mental health services is of utmost importance. In my opinion, mental health services are the most needed and most under-used health care service.  In the debate between guns and violent video games, I say that mental health issues and mental health care services trump both.  Create a society in which mental illnesses are (not necessarily accepted) but not stigmatized, people are comfortable asking for help regarding mental illnesses, people can identify others who are in need of counseling, and all people, no matter their insurance coverage,  have access to mental health care services.  Create this society and this society equals violent crimes under control.  A society in which a gun is merely a gun. For hunting, protection of family, or sport…not a weapon of mass destruction.  Mental health awareness is the key.

Ok, enough of my soap box.

In North Carolina, Outpatient Behavioral Health providers are bound by NC DMA Clinical Coverage Policy No. 8C.  Policy No. 8C is much shorter in length than most clinical policies. It’s terseness is a thing of beauty for the Outpatient Behavioral Health providers.

Herein lies tip #6:

Because 8C is so short, so terse, all Outpatient Behavioral Health providers should print off Policy No. 8C and fasten it onto the walls of the office (at least the meaty portions…not the beginning and ending fluff).

Outpatient Behavioral Health providers should have Policy 8C memorized.  Outpatient Behavioral Health providers should dream about Policy 8C.  Outpatient Behavioral Health providers should be able to regurgitate the meat of Policy 8C   …..I mean, come on, people, Policy 8C is 31 pages.  Without the fluff (just the meat) Policy 8C is only, in my opinion, 10 pages of meat…10 pages (pages 7-17)!!!! If the Outpatient Behavioral Health providers memorize a mere 10 pages, the Outpatient Behavioral Health providers will be able to thwart potential reconsideration reviews. Even if the State threatens or begins a reconsideration review, if the Outpatient Behavioral Health providers have memorized these 10 meaty pages, the Outpatient Behavioral Health providers will easily be able to defend the reconsideration review based on documentation and, thus, avoid any alleged overpayments. (After page 17 is important to follow in practice: it consists of billing codes and revisions to past policies, but 17-31 is not the “meat” regulating Outpatient Behavioral Health providers).

For this blog, I am concentrating on Section 7.3.3.  Section 7.3.3 is, by far, the biggest reason Outpatient Behavioral Health providers get dinged in Medicaid audits….BY FAR.  Service notes….really? YES.

Service notes are detail-oriented. Tedious. And one mistake on a service note…I mean a SMALL mistake…will cause the State to attempt to recoup the Medicaid payment bestowed for the entire service rendered. For example, an Outpatient Behavioral Health provider gets prior authorization from the correct state-contracted entity , a valid referral by a Carolina ACCESS primary care physician, a signed consent by the Medicaid recipient, a regulatory-correct Comprehension Clinical Assessment, a valid Treatment Plan and Service Plan… BUT….on the service note for one day…one couseling session….forgets to describe the Medicaid recipient’s reaction to the counseling. Or forgets to put the duration of the session (writes 6pm, but forgets to write that the session ended at 7pm). Or forgets to describe the nonverbal journal-writing session and bills for the play treatment (a higher-reimbursable code). What happens? A Medicaid audit.

According to Policy 8C, there must be a progress note for each treatment encounter that includes the following information (And, people, this is NOT difficult. This is the minimum and easy to meet):

  1. Date of service;
  2. Name of the service provided (e.g., Outpatient Therapy – Individual/Family Tx);
  3. Type of contact (face-to-face, phone call, collateral); non-face-to-face services are not covered and not reimbursable;
  4. Purpose of the contact (tied to the specific goals in the  Tx plan);
  5. Description of the treatment or interventions performed. Treatment and interventions must include active engagement of the individual and relate to the goals and strategies outlined on the individual’s plan;
  6. Effectiveness of the intervention(s) and the beneficiary’s response or progress toward goal(s);
  7. The duration of the service (e.g., length of the assessment or treatment in minutes; Pharmacological Management does not require documentation of the duration of service); and
  8. Signature, with credentials, degree, and licensure of clinician who provided the service. Electronic signatures must adhere to DMA guidelines. A handwritten note requires a handwritten signature; however, the credentials, degree, and licensure may be typed, printed, or stamped.
  9. Service notes must be written in such a way that there is substance, efficacy, and value. Interventions, treatment, and supports must all address the goal(s) listed in the plan. They must be written in a meaningful way so that the notes collectively outline the beneficiary’s response to treatment, interventions, and supports in a sequential, logical, and easy-to-follow manner over the course of service.

Is this difficult? No. Not rocket science.  I suggest creating a template. The template should have a space for every required component of the service note. Print off hundreds…no thousands.  Keep the print-offs in a location that all employees, if present, know of and make them understand that every service note must adhere to the template. Completely. No short-cuts.  No…”I forgot.”  Follow the template.

The result?  The Department of Health and Human Services (DHHS) or any of its entities or contracted companies will be able to audit any service note, written by any employee or you, and say, “This Outpatient Behavioral Health provider has met the minimum requirements of Policy 8C; therefore, there is no reason to try to recoup Medicaid funds from this provider. This provider has followed the rules.”

Wow. Shock and awe. Could that happen? Yes: MEMORIZE THE MEATY 10 PAGES OF POLICY 8C!!!!! And you too could avoid Medicaid recoupments.