Category Archives: NC Dental Society
Written by Robert Shaw, Partner at Gordon & Rees.
Readers of this blog know well what financial harm can come from documentation problems, particularly resulting from Medicare and Medicaid auditors. But just as significantly, these problems can affect your participation rights in federal programs, and could even affect your license to practice. A case in point is a recent decision from the North Carolina Court of Appeals about disciplinary action taken against a dentist.
In Walker v. North Carolina Board of Dental Examiners, the Court of Appeals, in an opinion filed today, addressed findings by auditors that the dentist had not properly documented “the reasons for prescribing narcotic pain medications for a number of patients in her treatment records.” Well, you might ask, What Does The Rule Say? There is in fact a rule on the records that dentists must keep, similar to the rules in most other health care specialties. It is the Record Content Rule in 21 N.C.A.C. 16T .101.
(By the way, now is a great time to review every rule that you must follow in order to keep proper records and to figure out what the legal requirements are. Many providers did this at one time but fail to keep up to speed on the latest rule changes, which gets them into trouble. Or, they keep records based on how someone taught them. But, that’s not a legal defense!)
The Court of Appeals found that Dr. Walker did NOT violate the Record Content Rule, which does not require documentation of the medical reasons for prescribing pain medication. So, the Board of Dental Examiners got it wrong by citing Dr. Walker for a violation of 21 N.C.A.C. 16T .101. That rule only requires that the dentist document “[n]ame and strength of any medications prescribed, dispensed or administered along with the quantity and date.”
But that was not the end of the matter. The Board also cited Dr. Walker for violating N.C. Gen. Stat. 90-41(a)(12), which provides that the Board of Dental Examiners “shall have the power and authority to . . . [i]nvoke . . . disciplinary measures . . . in any instance or instances in which the Board is satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry[.]” This is very broad power.
So, what is the standard to be applied under this general “negligent in the practice of dentistry” statute? At the disciplinary hearing, two expert witnesses (other North Carolina dentists) testified that “the applicable standard of care require[s] North Carolina dentists to not only record [the] prescription [of] controlled substances, but the reason for prescribing those medications.” This is, in effect, an unwritten standard of practice that dentists, at least according to these witnesses, should follow in North Carolina. Perhaps importantly, Petitioner acknowledged that she had participated in training programs that advised that dentists should record the reasons for medications that they prescribe. But nevertheless, this rule was not in the North Carolina Administrative Code, a clinical coverage policy, or other policy statement published by the Board (at least that was cited in the opinion).
The Court of Appeals affirmed that the Board had the authority to discipline the petitioner for failing to follow these general standards of care in North Carolina, based on testimony of two practicing North Carolina dentists!
What does this mean? It means that your licensing board could cite general record-keeping practices in your field as the basis for disciplinary action against you under a catch-all negligence standard. While each board is governed by its own set of rules and statutory authority, Walker v. North Carolina Board of Dental Examiners is a powerful reminder that record-keeping is serious business, and you could be legally obligated to follow standard practices in your field in addition to the legal maze of federal and state regulations and policies governing health care records.
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.”
Here is a repost from over a year ago. But, recently, I met a orthodontist that accepts Medicaid. He informed me that very, very few orthodontists accept Medicaid in North Carolina. I was reminded of this post and realized that, sadly, nothing has changed. In fact, if any change has occurred, I venture to say that less dentists accept Medicaid after the implementation of NCTracks.
I’ve blogged before about the shortage of dentists for Medicaid recipients. Just see my post “Medicaid Expansion: BAD for the Poor” to read about Deamonte Driver’s story and why he died due to not being able to find a dentist accepting Medicaid. But, today and yesterday, I decided to conduct my own personal investigation. (remember, this was almost a year ago).
(First, let me assure you that this blog is not condemning dentists for not accepting Medicaid recipients. I am informatively (I know, not a word) pointing out the facts. We cannot expect dentists to accept Medicaid when the Medicaid reimbursements dentists receive cannot even cover their costs.)
I googled “Raleigh dentist” and called, randomly, 20 dentists listed. I said the same thing to each receptionist, “Hi. I was wondering whether you accept Medicaid.” Every office had a receptionist answer (no recording asking whether I wanted to continue in English or Spanish). Every office receptionist was very sorry, but the dental practice did not accept Medicaid. 0. Zero out of a random 20.
So I went on North Carolina Department Health and Human Services’ (DHHS) website for dental providers. I pulled up the dental providers, and, lo, and behold, 44 pages were full of dental providers for Medicaid recipients. Literally, 1,760 dental providers are listed (44 pages times 40 lines per page). (However, some practices are listed more than once, so this number is an approximation).
I thought, Wow. Tons of dentists in North Carolina accept Medicaid. Then I looked again. On the far right side of the chart, there is a space for whether the dental practice is accepting new clients. Roughly 1/2 of the listed dental providers are NOT accepting new Medicaid clients.
I called a few of the dentists in Wake County accepting Medicaid. Again, I asked whether they accepted Medicaid. One stated, “Yes, but not at the moment.” Another said, “Yes, but only for children 21 and under.” Another gave a blanket, “Yes.
So that’s Wake County…what about more rural counties?
I called a few dentists in Union County. Two practices did not answer. One dental practice answered and gave me a “Yes.” According to the DHHS chart of Medicaid-accepting dental providers, 20 dentists in Union County accept Medicaid. 4 of which are not accepting new clients and one dental practice is listed as the health department. There are no orthodontists in Union County accepting Medicaid.
The phone numbers for two dental providers in Swain County were changed or disconnected. There are only 3 dental providers in Swain County. There are no orthodontists in Swain County.
There is only 1 dental provider accepting Medicaid in Pamlico County. According to the DHHS chart, the one dental provider is not accepting new patients. There are no orthodontists in Pamlico County.
Polk County lists 3 dentists accepting Medicaid, but not one of the dentists are accepting new clients. There are no orthodontists in Polk County.
Mitchell County has 4 dental providers acccepting Medicaid. But 3 of those dental practices are not accepting new clients. There are no orthodontists in Mitchell County
In Clay County, the only dental practice accepting Medicaid recipients is the health department.
In Ashe County, there are 3 dentists listed that will accept Medicaid. Only 2 are accepting new clients, one of which is the health department. There are no orthodontists in Ashe County.
In Alamance County, there are 4 dentists listed by DHHS who will accept Medicaid patients. The first one I called (a orthodontist) told me that they accepted Medicaid patients only from certain general dentists. The second one was not accepting new patients. The third one (also an orthodontist) informed me that Medicaid does not cover orthodontia services for Medicaid recipients over 21 (I must sound old!!!) The fourth dental practice’s voicemail informed me that the office is only open Wednesdays and Thursdays for limited times. Of the 4 dental practices accepting Medicaid, 3 were orthodontists, one did not accept new clients. The only general dentist (pediatric) only practiced in the local office two days a week.
Shortage of dentists accepting Medicaid? You decide.
Imagine two health care providers.
Provider “Anthony Loves” is a home health agency with approximately 15-20 staff and Medicaid accounts for 100% of its business. Provider “Huma Health” is a large corporation at which 10 medical professionals provide primary care to pediatric patients. Medicaid constitutes 20% of Huma’s payments; private insurance companies make-up 80% of the income. Which provider, Anthony Loves or Huma Health, will be most adversely affected if NCTracks suffers a “glitch” and Medicaid reimbursements are not paid timely? Answer? Anthony Loves. In fact, most providers similar to Anthony Loves have approximately 2 pay periods, or, maybe even 1, that can pass without Medicaid reimbursements before the providers are forced to close their doors.
Discrimination against small providers? Probably not. Disparate impact? Maybe. Just plain, old unfair? Absolutely.
Since July 1, 2013, when NCTracks went live, the Department of Health and Human Services (DHHS) has touted the beauty, the efficiency, and the overall success of NCTracks in the media. DHHS is sugar-coating a state-wide, disastrous pill for small providers to swallow.
Is NCTracks successful in a discriminatory manner?…As in, are small providers suffering the errors of NCTracks disproportionately than large providers, i.e., hospitals, large institutions. Will NCTracks force small providers to close?
Is the NCTracks’ Medicaid reimbursement system resulting in a “disparate impact” on small providers?
I know, I know, I know…”disparate impact” is used in constitution law when describing a discriminatory situation in which a minority group or protected class is adversely affected. And…I understand that a legal “disparate impact” argument does not apply to small providers, as, unlike women or minorities, “small providers” do not constitute a “suspect class.” And I understand that NCTracks is not a “law” per se (normally in a case for “disparate impact,” you have to show that a statute or law is causing the “disparate impact”). So, folks, please understand that I am using “disparate impact” loosely for the purposes of this blog and not according to the legal definition of “disparate impact.” (Professor Kobach would be disappointed).
Example of REAL “disparate impact”:
Back in 1974, New Bedford had a law that stated that a person applying to become a police officer must be 5 feet 6 inches or taller. Obviously, the 5’6″ requirement disproportionately adversely affected women because, generally, women tend to be shorter than men. Obviously, I would never have been able to be a police officer in New Bedford in 1974, as I am 5’4″.
In a landmark decision, Costa v. Markey, the Supreme Court stated that the law (requiring police officers to be 5’6″ or taller) was not discriminatory “on its face,” but, rather, the impact of the law adversely affected a suspect class (women), thereby rendering the law unconstitutional due to the “disparate impact.”
Similarly (and not so similarly), NCTracks, “on its face” appears to be non-discriminatory. All Medicaid providers who render Medicaid services submit claims for reimbursements through NCTracks and will get paid. Period. No discrimination. But, what if, the reimbursements paid out from NCTracks are paid-out to large providers in a disproportionate amount as compared to small providers? What if small providers are suffering a “disparate impact?”
So far, when asked about any potential glitches with NCTracks (and by glitches, I mean, providers are not receiving Medicaid reimbursements), DHHS says, “Sure, there are glitches; sure there are bumps; we expected bumps. But, overall, NCTracks is the bomb-diggity.” (DHHS does not use the term “bomb-diggity,” but you get the point). Again, sugar-coating.
According to DHHS, NCTracks has processed nearly 9.3 million claims in the last checkwrite, and as of the last checkwrite, the system has been on or ahead of schedule with checkwrite payments, paying out more than $350 million to health care professionals. That’s a lot of payouts. If DHHS is correct and NCTracks has paid out over $350 million in Medicaid reimbursements, then why have I been receiving so many phone calls and emails from Medicaid providers who have received ZERO Medicaid reimbursements since June 20, 2013? Which leads me to question…of those 9.5 million claims, were those just the successful claims? How many total claims have been attempted in all?
When asked for the breakdown of Medicaid reimbursements actually paid, DHHS sent:
The pharmacies are getting paid. But what services are included in “Medical?” Everything else? What is the breakdown of “medical” payments? Does “medical” include hospitals, dentists, primary care physicians and every single medical services?
I do not know what medical services are bunched together to constitute the $351,367,812.52 medical payout. But from comments I have received regarding lack of Medicaid reimbursements due to NCTracks, it appears that small providers are suffering. It appears that small providers are suffering a disparate impact.
Below are some comments by NC providers who accept Medicaid and have not been paid by NCTracks:
“Our peds practice is a month with no pay, and we are 85% Medicaid. Noone at NC tracks seems to be able to tell us (despite multiple 60 to 80 hours phone waits) why we haven’t gotten paid and when we will get paid….Because we care for very complex kids (we are a NCQA Level III certified medical home & get frequent referrals from Brenners Childrens Hospital) and have such a high Medicaid population, I haven’t payed myself a salary in 6 years, and my husband and I have put our savings into the practice, but now I can’t pay my employees either.”
“I have not been paid yet either and it is shameful. If this is some nefarious plot to thin out the number of providers I think it is working. We have been on the phone for HOURS and still no resolution. They blame our third party processor and our third party processor blames them. We are stuck in the middle.”
“Small therapy and Infant Toddler(SLP, OT PT, CBRS) providers are being hit hard. Another long work week has come to an end with no hope of reimbursement in sight. We have to continue to serve our families indefinitely or run the risk of losing our entire caseloads, which would cause us to have no choice but to shut the doors. We have been a small, but successful CBRS provider agency for 9 years (ironically, July 1 was our 9 year anniversary), but NC Tracks may just do us in. We are being told it is our EFT info that is keeping us from getting reimbursement. We submitted our EFT info on 5/17 but it did not show up in the NCT system until 7/10. We could not fix or check on anything ourselves because the Status and Management Change option in the Provider Portal was not functioning for us from 7/1 until 7/16! On 7/10, a rep verified and re-submitted the EFT info. It’s 9 days later and still nothing has shown up at our bank. The supervisor I talked to today sounded so proud when he announced, ” I have found out what your problem is! You are still in pre-note because your bank has not responded. I had to explain again that it is a system error on their part. It looks like it has been sent out, but it never shows up at our bank. This is apparently a common problem and there has to be a fix for my agency and quite a few of my colleagues before we all just go under.”
“This is absolutely accurate and correct. This is happening to our 2 practices, one in Charlotte and our new office in Huntersville. This is the deception that Doctor and I as the Office Manager are experiencing. Very sadly to say we have had the run around for the past 3 weeks as of when we will get payments in so we can continue operations and make payroll. Today the owner was faced with withdrawing monies from his 401K to make the payroll for the staff since our practices are 65% Medicaid based. We love our job and servicing the community; however we won’t be able to survive if we don’t receive payment for our services. At this point we have contacted the senators and we areliving our way up to see if we are heard. I am appalled at how we are still awaiting on payments from claims of 06-20-2013, when NCTRACKS was supposed to take over on July 1st. I would like to get Action 9 involved and see what else can be done to expedite these payments to all the providers. If so, why did they even switch the system. What a disappointment.”
“We’re a mental health agency. We should have been paid today for the first time since the 20th but of course we weren’t. No RA posted either, even though we received an RA for last week’s claims. Sad to say but I wasn’t expecting to get paid because I have no faith in DHHS’ ability to implement any program. They are the epitome of governmental incompetence.”
“I am responding to this information from a pediatric dental practice, Coastal Pediatric Dentistry, in New Bern, NC. We are dealing with a nightmare situation with NCTracks so far. Our taxonomy number has defaulted to another number which is not dental so I have been told that the reason all of our claims have denied is because of the wrong taxonomy number. The person that I spoke with at NCTracks said she couldn’t access our provider profile to tell me how to fix the problem. So here we sit with hundreds of Medicaid claims denied. How long can a practice continue like this?”
“I am a dentist in Sanford NC and I have not been paid by Medicaid since June 27. They stopped accepting our claims June 20th.”
“This is an absolute horror story. I cannot find anyone who has any idea how to bill for the dually eligible that require a Medicare override. How to match the list of taxonomy codes which I have never seen before to my one NPI and bill properly for regular Medicaid recipients and CAP waiver supplies. We have not been able to bill anything successfully.”
“Well..I stayed on the phone 57 mins this morning to only be told the complete error description for my denied claim. I asked the help desk rep, can you please step through the process of filing the claim for PCS. I was then given information to the NC DMA site (outdated info – they still have the old HP site info up), upcoming webinars (live so to speak) and so forth. But, I’ve have yet to see any “concrete” examples of claim processes for various group settings. They’ve all been so generic, it’s not helpful at all. I went to a class in Greensboro, NC 2-months ago. The trainer didn’t have specifics, just generalities. I’ve been in IT over 18 yrs, specifically in Application/Development and I knew this rollout was gonna be bad. I’ve called Vendors and they hadn’t figured it out yet. I gave the help desk person this AM some ideas…She actually took notes! That was my highlight of claim processing with NC Tracks today. By the way, 2 days of trying to submit a claim. Unsuccessful! Trial & Error right now!”
Why have these providers been wholly UN-successful when NCTracks has supposedly paid out $350 million since July 1, 2013? Why has DHHS neglected to bring this issue to light?
My guess? Small providers are not receiving Medicaid reimbursements, whereas the big providers are being paid.
If Duke University Medical Center were not receiving Medicaid reimbursements, we would have heard some very loud complaints. Same for Rex and UNC. Since we have NOT heard from hospitals regarding nonpayment of Medicaid reimbursements, I am inclined to believe the hospitals ARE getting reimbursements. Maybe even $350 million worth.
The providers quoted above are not large institutions. They are small/medium-sized Medicaid providers. Not being paid for 5-7 weeks is devastating for the smaller providers.
Which leads me back to my original question….Is NCTracks creating a “disparate impact” on small providers?
I believe yes.
So what is the solution? A lawsuit?
In the last few days, I have been contacted by numerous dentists, home health care providers, and behavioral health care providers, who have not been reimbursed for services rendered and who would like to sue Computer Sciences Corp. (CSC), the company that created NCTracks. CSC is being paid $484 million for developing the system and running it through 2020. The problem with all lawsuits against large entities, such as CSC, is the price tag. A lawsuit is so expensive that it impedes providers from being able to bring a lawsuit.
Maybe the NC Dental Society should think about pitching in and helping its members…
Or a behavioral health care society….
Or a medical society….
Regardless, providers need to know that other providers are also suffering. And if any provider IS receiving Medicaid reimbursements, please share what, if anything, you did to get NCTracks to work.