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SB 257 – A New Death Sentence for NC Medicaid Providers!
Buried within the Senate Appropriations Act of 2017 (on pages 189-191 of 361 pages) is a new and improved method to terminate Medicaid providers. Remember prepayment review? Well, if SB 257 passes, then prepayment review just…
got…
bigger.
Prepayment review is allowed per N.C. Gen. Stat. 108C-7. See my past blogs on my opinion as to prepayment review. “NC Medicaid: CCME’s Comedy of Errors of Prepayment Review” “NC Medicaid and Constitutional Due Process.”
N.C. Gen. Stat. 108C-7 states, “a provider may be required to undergo prepayment claims review by the Department. Grounds for being placed on prepayment claims review shall include, but shall not be limited to, receipt by the Department of credible allegations of fraud, identification of aberrant billing practices as a result of investigations or data analysis performed by the Department or other grounds as defined by the Department in rule.” Getting placed on prepayment review is not appealable. Relief can be attainable. See blog. (With a lawyer and a lot of money).
Even without the proposals found within SB 257, being placed on prepayment review is being placed in a torture chamber for providers.
With or without SB 257, being placed on prepayment review results in the immediate withhold of all Medicaid reimbursements pending the Department of Health and Human Services’ (DHHS) contracted entity’s review of all submitted claims and its determination that the claims meet criteria for all rules and regulations. If the majority of your reimbursements come from Medicaid, then an immediate suspension of Medicaid funds can easily put you out of business.
With or without SB 257, in order to get off prepayment review, you must achieve 70% accuracy (or clean claims) for three consecutive months. Think about that statement – The mere placement of you on prepayment review means that, according to the standard for being removed from prepayment review, you will not receive your reimbursements for, at least, three months. How many of you could survive without getting paid for three months. But that’s not the worst of it, the timing and process of prepayment review – meaning the submission of claims, the review of the claims, the requests for more documentation, submission of more documents, and the final decision – dictates that you won’t even get an accuracy rating the first, maybe even the second month. If you go through the prepayment review process, you can count on no funding for four to five months, if you are over 70% accurate the first three months. How many of you can sustain your company without getting paid for five months? How about 24 months, which is how long prepayment review can last?
The prepayment review process: (legally, which does not mean in reality)
Despite your Medicaid funds getting cut off, you continue to provide Medicaid services to your recipients (You also continue to pay your staff and your overhead with gummy bears, rainbows, and smiles). – And, according to SB 257, if your claims submissions decrease to under 50% of the prior three months before prepayment review – you automatically lose. In other words, you are placed on prepayment review. Your funding is suspended (with or without SB 257). You must continue to provide services without any money (with or without SB 257) and you must continue to provide the same volume of services (if SB 257 passes).
So, you submit your claims.
The Department of Health and Human Services (DHHS) or its contracted vendor shall process all clean claims submitted for prepayment review within 20 calendar days of submission by the provider. “To be considered by the Department, the documentation submitted must be complete, legible, and clearly identify the provider to which the documentation applies. If the provider failed to provide any of the specifically requested supporting documentation necessary to process a claim pursuant to this section, the Department shall send to the provider written notification of the lacking or deficient documentation within 15 calendar days of receipt of such claim the due date of requested supporting documentation. The Department shall have an additional 20 days to process a claim upon receipt of the documentation.”
Let’s look at an example:
You file your claim on June 1, 2017.
DHHS (or contractor) determines that it needs additional documentation. On June 16, 2017, DHHS sends a request for documentation, due by July 6, 2017 (20 days later).
But you are on the ball. You do not need 20 days to submit the additional documents (most likely, because you already submitted the records being requested). You submit additional records on June 26, 2017 (within 10 days).
DHHS has until July 16, 2017, to determine whether the claim is clean. A month and a half after you submit your claim, you will be told whether or not you will be paid, and that’s if you are on the ball.
Now imagine that you submit 100 claims per week, every week. Imagine the circular, exponential effect of the continual, month-and-a-half review for all the claims and the amount of documents that you are required to submit – all the while maintaining the volume of claims of, at least over 50% of your average from the three prior months before prepayment review.
Maintaining at least 50% of the volume of claims that you submitted prior to being placed on prepayment review is a new addition to the prepayment review torture game and proposed in SB 257.
If SB 257 does not pass, then when you are placed on prepayment review and your funding is immediately frozen, you can decrease the volume of claims you submit. It becomes necessary to decrease the volume of claims for many reasons. First, you have no money to pay staff and many staff will quit; thus decreasing the volume of claims you are able to provide. Second, your time will be consumed with submitting documents for prepayment review, receiving additional requests, and responding to the additional requests. I have had a client on prepayment review receive over 100 requests for additional documents per day, for months. Maintaining organization and a record of what you have or have not submitted for which Medicaid recipient for which date of service becomes a full-time job. With your new full-time job as document submitter, your volume of services decreases.
Let’s delve into the details of SB 257 – what’s proposed?
SB 257’s Proposed Torture Tactics
The first Catherine’s Wheel found in SB 257 is over 50% volume. Or you will be terminated.
As discussed, SB 257 requires to maintain at least 50% of the volume of services you had before being placed on prepayment review. Or you will be terminated.
Another heretics fork that SB 257 places in the prepayment review torture chamber is punishment for appeal.
SB 257 proposes that you are punished for appealing a termination. If you fail to meet the 70% accuracy for three consecutive months, then you will be terminated from the Medicaid program. However, with SB 257, if you appeal that termination decision, then “the provider shall remain on prepayment review until the final disposition of the Department’s termination or other sanction of the provider.” Normally when you appeal an adverse determination, the adverse determination is “stayed” until the litigation is over.
Another Iron Maiden that SB 257 proposes is exclusion.
SB 257 proposes that if you are terminated “the termination shall reflect the provider’s failure to successfully complete prepayment claims review and shall result in the exclusion of the provider from future participation in the Medicaid program.” Even if you voluntarily terminate. No mulligan. No education to improve yourself. You never get to provide Medicaid services again. The conical frame has closed.
Another Guillotine that SB 257 proposes is no withhold of claims.
SB 257 proposes that if you withhold claims while you are on prepayment review. “any claims for services provided during the period of prepayment review may still be subject to review prior to payment regardless of the date the claims are submitted and regardless of whether the provider has been taken off prepayment review.”
Another Judas Chair that SB 257 proposes is no new evidence.
SB 257 proposes that “[i]f a provider elects to appeal the Department’s decision to impose sanctions on the provider as a result of the prepayment review process to the Office of Administrative Hearings, then the provider shall have 45 days from the date that the appeal is filed to submit any documentation or records that address or challenge the findings of the prepayment review. The Department shall not review, and the administrative law judge shall not admit into evidence, any documentation or records submitted by the provider after the 45-day deadline. In order for a provider to meet its burden of proof under G.S. 108C-12(d) that a prior claim denial should be overturned, the provider must prove that (i) all required documentation was provided at the time the claim was submitted and was available for review by the prepayment review vendor and (ii) the claim should not have been denied at the time of the vendor’s initial review.”
The prepayment review section of SB 257, if passed, will take effect October 1, 2017. SB 257 has passed the Senate and now is in the House.
Another Win for the Good Guys! Gordon & Rees Succeeds in Overturning Yet Another Medicaid Contract Termination!
Getting placed on prepayment review is normally a death sentence for most health care providers. However, our health care team here at Gordon Rees has been successful at overturning the consequences of prepayment review. Special Counsel, Robert Shaw, and team recently won another case for a health care provider, we will call her Provider A. She had been placed on prepayment review for 17 months, informed that her accuracy ratings were all in the single digits, and had her Medicaid contract terminated.
We got her termination overturned!! Provider A is still in business!
(The first thing we did was request the judge to immediately remove her off prepayment review; thereby releasing some funds to her during litigation. The state is only allowed to maintain a provider on prepayment review for 12 months).
Prepayment review is allowed per N.C. Gen. Stat. 108C-7. See my past blogs on my opinion as to prepayment review. “NC Medicaid: CCME’s Comedy of Errors of Prepayment Review” “NC Medicaid and Constitutional Due Process.”
108C-7 states, “a provider may be required to undergo prepayment claims review by the Department. Grounds for being placed on prepayment claims review shall include, but shall not be limited to, receipt by the Department of credible allegations of fraud, identification of aberrant billing practices as a result of investigations or data analysis performed by the Department or other grounds as defined by the Department in rule.”
Being placed on prepayment review results in the immediate withhold of all Medicaid reimbursements pending the Department of Health and Human Services’ (DHHS) contracted entity’s review of all submitted claims and its determination that the claims meet criteria for all rules and regulations.
In Provider A’s situation, the Carolinas Center for Medical Excellence (CCME) conducted her prepayment review. Throughout the prepayment process, CCME found Provider A almost wholly noncompliant. Her monthly accuracy ratings were 1.5%, 7%, and 3%. In order to get off prepayment review, a provider must demonstrate 70% accuracy ratings for 3 consecutive months. Obviously, according to CCME, Provider A was not even close.
We reviewed the same records that CCME reviewed and came to a much different conclusion. Not only did we believe that Provider A met the 70% accuracy ratings for 3 consecutive months, we opined that the records were well over 70% accurate.
Provider A is an in-home care provider agency for adults. Her aides provide personal care services (PCS). Here are a few examples of what CCME claimed were inaccurate:
1. Provider A serves two double amputees. The independent assessments state that the pateint needs help in putting on and taking off shoes. CCME found that there was no indication on the service note that the in-home aide put on or took off the patients’ shoes, so CCME found the dates of service (DOS) noncompliant. But the consumers were double amputees! They did not require shoes!
2. Provider A has a number of consumers who require 6 days of services per week based on the independent assessments. However, many of the consumers do not wish for an in-home aide to come to their homes on days on which their families are visiting. Many patients inform the aides that “if you come on Tuesday, I will not let you in the house.” Therefore, there no service note would be present for Tuesday. CCME found claims inaccurate because the assessment stated services were needed 6 days a week, but the aide only provided services on 5 days. CCME never inquired as to the reason for the discrepancy.
3. CCME found every claim noncompliant because the files did not contain the service authorizations. Provider A had service authorizations for every client and could view the service authorizations on her computer queue. But, because the service authorization was not physically in the file, CCME found noncompliance.
Oh, and here is the best part about #3…CCME was the entity that was authorizing the PCS (providing the service authorizations) and, then, subsequently, finding the claim noncompliant based on no service authorization.
Judge Craig Croom at the Office of Administrative Hearings (OAH) found in our favor that DHHS via CCME terminated Provider A’s Medicaid contract arbitrarily, capriciously, erroneously, exceeded its authority or jurisdiction, and failed to act as accordingly to the law. He ruled that DHHS’ placement of Provider A on prepayment review was random
Because of Judge Croom’s Order, Provider A remains in business. Plus, she can retroactively bill all the unpaid claims over the course of the last year.
Great job, Robert!!! Congratulations, Provider A!!!
CCME’s Prepayment Reviews Violate NCGS 108C-7!! Seriously!!
A few months ago I sent a public records request to the Division of Medical Assistance (DMA). I eventually received the information…today.
I wanted to know how many providers had been put on prepayment review. A provider can be placed on prepayment review pursuant to N.C. Gen. Stat. 108C-7. I have blogged about 108C-7 before. It is a Draconian law. See my blog: “You Have Been Placed on Prepayment Review, Now What?”
108C-7 states that a provider cannot appeal being placed on prepayment review. Yet while on prepayment review, the Carolinas Center for Medical Excellence (CCME) determines which claims submitted by you are “clean.” For the period that you are on prepayment review, you will not be paid for claims that are not “clean.” Oh, and CCME can subjectively determine whether you should be paid and you have zero recourse for which to challenge CCME’s subjective determination. See my blog: “NC Medicaid:CCME’s Comedy of Errors of Prepayment Review.”
The only relief for providers in 108C-7 is that “In no instance shall prepayment claims review continue longer than 12 months.”
The law specifically states that you cannot be forced to endure prepayment review for over 12 months.
One of the documents that DMA sent me is a chart with every single provider that had been placed on prepayment review. The chart includes the number of months that the provider was on prepayment review. But, remember, 12 months is the max per law.
See the highlighted numbers? 16. 11. 34. 34. 7. Three of the numbers are above 12….which means, three of the 6 on the first page violate state statute.
How many prepayment reviews were unlawfully conducted? (As in, DMA/CCME kept the provider on prepayment review beyond 12 months)?
75. Seventy-five prepayment reviews violated 108C-7. 75 out of approximately 125. (I started counting each one, but my eyes kept going cross-eyed…Look how small the print is!)
Reagrdless…well over half the prepayment reviews violates 108C-7!!! That same Draconian law that DHHS holds each provider to…DHHS (via CCME) is ignoring the plain language of the statute.
One poor provider was on prepayment review 46 months!!!! Another 45! A bunch of the providers were in the 30s!
Why didn’t these providers protest at being on prepayment review for so long? I have a couple of theories: (1) They are out of business; (2) They had no lawyer and had no idea that there was a 12 month limit.
Well, readers, now you know…There is a 12 month limit to prepayment review!! But DHHS/DMA/CCME is not following it. Seriously!!
NC Medicaid Providers, Are You Required to Seek an Informal Appeal Prior to Filing a Contested Case at OAH?
Recently, numerous clients have come to me asking whether they have the right to appeal straight to the Office of Administrative Appeals or whether they have to attend informal appeals first, whether the informal appeal is within a managed care organization (MCO), the Division of Medical Assistance (DMA) or any other entity contracted by DMA.
The answer is: No, you are not required to go through the informal review prior to filing a contested case at OAH, but, in some cases, the informal review is beneficial.
Let me explain.
N.C. Gen. Stat. 150B-22-37 (Article 3) applies to:
“[A]ny dispute between an agency and another person that involves the person’s rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined. If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person’s rights, duties, or privileges, at which time the dispute becomes a “contested case.”
N.C. Gen. Stat. 150B-22.
“Any dispute between an agency and another person”…Obviously DMA is a state agency, but is Public Consulting Group (PCG)? Is the Carolinas Center for Medical Excellence (CCME)? East Carolina Behavioral Health? HMS?
What if you disagree with a prepayment review result that CCME conducted? DMA had nothing to do with the actual prepayment review. Can you bring a contested case at OAH against CCME?
Yes. But include DHHS, DMA as a named Respondent. If you include the state agency that contracted with the entity, then jurisdiction is proper at OAH. The argument being that the actions of a contracted entity is imputed to the principle (DMA).
“Should be settled through informal procedures…” Notice it states “should,” not “must.” Time and time again when a provider skips the informal review within the entity (for example, let’s say that MeckLINK terminates Provider Jane’s Medicaid contract and files a grievance with OAH instead of through MeckLINK first) the counsel for the entity (MeckLINK in this example) argues that OAH does not have jurisdiction because Jane failed to exhaust her administrative remedies. As in, Jane should have appealed through MeckLINK first.
In my opinion, appealing to the very entity that is causing the grievance is futile. The decision was made. The entity is not going to rule against itself.
Plus, there is no requirement for any petitioner to exhaust informal appeals prior to appealing to OAH. When you receive a Tentative Notice of Overpayment from PCG, you can go to an informal review or you can appeal in OAH.
The “failing to exhaust administrative remedies” argument is being misapplied by the entities. In order to file judicial review in Superior Court or a declaratory judgment action in Superior Court, you must exhaust all administrative remedies prior to seeking relief in Superior Court. But the requirement to exhaust administrative remedies is not applicable to filing at OAH.
The upshot is that any person aggrieved may bring a contested case in OAH without attending an informal appeal first.
However, there are some occasions that, in my opinion, the informal appeal is useful. Such as an overpayment found by PCG. If you receive a Tentative Notice of Overpayment by PCG, the informal reconsideration review at DMA can be helpful for a number of reasons.
1. It forces you to review the audited documents with a fine tooth comb prior to getting in front of a judge.
2. It allows you to find all PCG’s mistakes, and there will be mistakes, and bring those mistakes to the attention of the auditor.
3. It gives you a chance to decrease the alleged amount owed before a contested case.
Keeping those positive aspects in mind, most likely, the reconsideration review will NOT resolve the case. Although it has happened occasionally, more times than not, you will not agree with the reduced amount the DHHS hearing officer decides. The alleged overpayment will still be extrapolated. The alleged overpayment will still be ridiculous.
Other than an overpayment, I have found very little use for the informal appeals.
NC Medicaid: CCME’s Comedy of Errors of Prepayment Review
For those of you who have been on prepayment review or know someone else who has undergone prepayment review, this is for you.
Remember “A MidSummer’s Night Dream,” by William Shakespeare? The comedy of errors? Undergoing a Medicaid audit performed by the Carolinas Center of Medical Excellence (CCME) is much like the comedy of errors in “The MidSummer’s Night Dream.” (MSND) And much like the events in MSND, everyone involved wants to believe that the audit was just a dream/nightmare, but, sadly, this is real life.
For those of you that were not forced to read MSND in school or did not study Shakespeare in college, MSND portrays the events surrounding the marriage of the Duke of Athens, Theseus, and Hippolyta. These include the adventures of four young Athenian lovers and a group of six amateur actors, who are controlled and manipulated by the fairies who inhabit the forest in which most of the play is set. In my humble opinion, the best characters in MSND is Titania and Puck. Titania is the Queen of the fairies, who is estranged from her husband Oberon because Titania will not give her “changeling” to her husband. Oberon wants the “changeling” to use in battle, but Titania will not have it. Puck is the court jester, who creates a magic flower that, if struck on a person with Cupid’s arrow, will make the struck-person fall in love with whomever or whatever is first seen upon awakening.
So Oberon devises a plan to use the magic flower on Titania and, while she is awe-struck with whatever or whomever she loves, Oberon will take the “changeling.” Puck strikes Titania with the flower, using Cupid’s arrow, and she is fast asleep.
Meanwhile a group of people are creating a play. Nick Bottom, whose name Puck decides is another word for “jackass,” is one of the actors. While Bottom is rehearsing, Puck transforms Bottom’s head into a jackass’ head. Bottom has no idea and goes about his rehearsal with an ass head.
Titania wakes up, sees the ass-headed Bottom, and falls in love. While she is in love with the ass-headed Bottom, Oberon takes the changeling.
In CCME’s very own comedy of errors, CCME conducts prepayment reviews for the Division of Medical Assistance (DMA). But in this comedy of errors, the provider (Titania) has its Medicaid contract (changeling) that DMA (Oberon) wants. DMA (Oberon) sends CCME (Puck) to conduct a prepayment review (the magic flower) to get the Medicaid contract. The provider (Titania) becomes so confused and so frustrated with the process that, when she wakes up from the nightmare of prepayment review, she feels like an ass and has no Medicaid contract (changeling).
Here is CCME’s Comedy of Errors:
On August 6, 2012, Jane Doe receives her notice of prepayment review from CCME. Jane also receives CCME’s first requests for documents for Medicaid recipients for certain dates of services (DOS). In actuality, CCME requests hundreds of documents for multiple Medicaid recipients and multiple DOS, and, of course, Jane is given 15 days in which to comply. But, for the sake of this blog and simplicity, we are going to concentrate on one Medicaid recipient and 3 DOS.
On October 10, 2012, Jane receives a request for documents for Medicaid recipient X for DOS 9/20/12, 9/24/12, and 9/27/12.
Jane complies. She sends all the documents required to CCME. Remember, since August, Jane has not received any reimbursements for Medicaid, but Jane is expected to continue to service her clients, pay her staff, pay herself, and pay all overhead for her office without getting paid. I wonder how many other professions would put up with continuing to work without payment. I expect that if I went to the grocery store, put a bunch of food in my cart, and tell the cashier that I am not paying until the state government performed an audit of the quality of its food, that I would be arrested for shoplifting.
In November, Jane receives a “Final Document Request” for Medicaid recipient X and DOS 9/20, 9/24, and 9/27.
The only item CCME requests in the signature log of Jane’s staff for all 3 DOS. So, she sends in the signature log. Implicit in the Final Document Request is that, since CCME only requested a signature log, that CCME had all other necessary and required documents for these DOS.
In December (remember Jane still had not received any Medicaid payments since August), Jane receives a denial for DOS 9/20, 9/24, and 9/27. A denial means Jane does not get paid. According to the denial, DOS 9/20, 9/24, and 9/27 were denied because CCME did not have a treatment plan, signed authorization by the Medicaid recipient, or the service note. What????
1. Jane sent the treatment plan, the signed consent, and the service note back in October.
2. The Final Document Request only asked for the signature log. Why didn’t the Final Request request the treatment plan, signed consent, and service note?
The comedy of errors continue.
In January 2013, CCME sends another Request for Documents. Included in the list of required documents to be sent to CCME are documents for Medicaid recipient X for DOS 9/20, 9/24, and 9/27.
Jane thinks this is odd, but who is she to question the Medicaid auditor? Plus, if she calls CCME to point out the repetitive nature of the audit, she is just told to comply with the audit.
So she does. She re-sends all the required documents again.
A week later, she receives another request for DOS 9/27 for the same Medicaid recipient. She re-re-sends the documents.
In February, she receives denials for DOS 9/20, 9/24, and 9/27. A week later she receives the third denial for DOS 9/27.
A few days later, after calling CCME, getting transferred to 40 different people, and her repeated request for a copy of her compliance accuracy rate, CCME sends her accuracy rate to her. CCME determined that Jane’s accuracy rate is 1.25% (you have to get over 70% for 3 consecutive months to pass prepayment review). DMA terminates her Medicaid contract.
Due to the sequence of events, which I have called the comedy of errors, DMA (Oberon) successfully usurps Jane’s Medicaid contract (the changeling).
I doubt Shakespeare contemplated his “comedy of errors” template would be used in the Medicaid system. And Shakespeare’s version was much funnier.
