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!!!
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!!
Medicaid recipients in North Carolina are not getting the same, quality health care that citizens with private insurance receive.
Health care providers refuse to accept Medicaid due to low, Medicaid reimbursement rates. There are not enough Medicaid providers for all the Medicaid recipients. Medicaid recipients have difficulty finding health care providers, especially dentists and other specialists. Many Medicaid recipients are forced to go to the emergency departments (EDs) for medical issues that could have been conducted in a primary care doctor’s office, thereby creating excessively long, waiting periods at EDs. Medicaid recipients, who understand they need mental health services, are left to the whim of an employee at a managed care organization (MCO) as to whether the recipient meets medical necessity for a behavioral health care service.
I’ve blogged before that the disparity between the health care a Medicaid recipient receives and the health care a citizen with private insurance receives reminds me of the “separate, but equal” doctrine during the Civil Rights Movement.
Medicaid recipients in North Carolina are not getting the same, quality health care that citizens with private insurance receive.
Separate is not equal!
As a nod to the great author, Jonathan Swift, I have “A Modest Proposal for Medicaid Reform.” Jonathan Swift is probably more well-known for “Gulliver’s Travels,” but, by far, my favorite Swift work is “A Modest Proposal.” With “A Modest Proposal,” Swift defined satirical writing, but about 300 hundred years ago.
“It is a melancholy object to those who walk through this great town or travel in the country, when they see the streets, the roads, and cabin doors, crowded with beggars of the female sex, followed by three, four, or six children, all in rags and importuning every passenger for an alms. These mothers, instead of being able to work for their honest livelihood, are forced to employ all their time in strolling to beg sustenance for their helpless infants: who as they grow up either turn thieves for want of work, or leave their dear native country to fight for the Pretender in Spain, or sell themselves to the Barbadoes.”
Interestingly, Swift published “A Modest Proposal” anonymously in a newspaper. At the time Swift wrote it, Ireland was in an impoverished state with an over-population problem. Some lawmakers had suggested a number of population-control methods that, apparently, insulted Swift to his core. One person suggested running the poor through a joint-stock company, presumably for the “rich, educated” people to control the “poor.” Others suggested population-control, such as preventing childbirth for certain demographics.
Similarly, today I was listening to CNN when the newscaster explained that a mother of an autistic child received a hateful letter from a neighbor about her autistic child.
Here are some statements found in the letter: (Please understand that these words are not mine. In fact, when I heard this story, I was torn between crying for this mother and child or becoming infuriated at the ignorance and narcissistic hubris of the author).
The letter goes on to criticize Begley for allowing Max to play outside and says: “That noise he makes when he is outside is DREADFUL!!!!!!!!!! It scares the hell out of my normal children!!!!!!!”
The letter also tells Karla that she has a “retarded kid” and “should deal with it properly”.
“What right do you have to do this to hard working people!!!!!!!! I HATE people like you who believe, just because you have a special needs kid, you are entitled to special treatment!!! GOD!!!!!!”
The writer finishes by demanding the family “go live in a trailer in the woods or something with your wild animal kid!!!” and asks the family to do the right thing and move or “euthanize him. Either way, we are ALL better off!!!”
I hope that the above words impacted you as they did me. I simply cannot believe that a person…any person….would THINK those words, much less write those words. Has our society become so callous to people with special needs that the people with special needs have become (in the author’s view) burdensome or annoying? To the author of that hateful letter, I say, “Shame on you!”
I also say, “If there were laws against being heartless, you would be sentenced for life!”
In “A Modest Proposal,” Swift suggests (satirically) that the impoverished Irish might ease their troubles by selling their children as food for rich gentlemen and ladies. “This satirical hyperbole mocks heartless attitudes towards the poor, as well as Irish policy in general.” See Wikipedia . (It amazes me that the authors of Wikipedia draft better English essays than I did in college).
According to DMA, in 1999-2000 more than 1.22 million individuals were covered under North Carolina’s Medicaid program. By 2009, that number had grown to more than 1.81 million individuals, an increase of approximately 50%. That means that 1.81 million people in North Carolina depend on Medicaid. These are our neighbors; these are our children; this may even be us.
I have my own “A Modest Proposal.” My “A Modest Proposal” is:
“A Modest Proposal for Medicaid Reform.”
Our Medicaid budget is approximately $14 billion. According to Kaiser, our Medicaid expenditures were $10,546,984,914 in fiscal year (FY) 2011. However, Kaiser also notes that “expenditures do not include administrative costs, accounting adjustments, or the U.S. Territories. Total Medicaid [federal and state…as in, nationwide] spending including these additional items was $427.4 billion in FFY 2011.”
We spent $10.5 billion (estimated) on Medicaid services for Medicaid recipients in FY 2011. According to the January 2013 State Audit of DHHS, in fiscal year 2011, North Carolina Medicaid incurred administrative expenses of approximately $648.8 million. Now, here in 2013, with the MCOs in place statewide, I wager that the administrative costs for Medicaid for fiscal year 2013 will, at least, double due to the salaries and benefits awarded to MCO employees.
67.4% of our $10.5 expenditure went to acute care (hospitals). No shock there. Medicaid recipients generally do not receive continuity of care through a primary physician. Therefore, many Medicaid recipients end up in the ED for an ear ache (ever wonder why the waiting period at the ED is so long?).
Plus, North Carolina is, sadly, floundering as to providing mental health services, so it is no wonder that “almost one-third of ED visits by those with underlying mental health disorders resulted in hospital admission, more than twice as many as those without underlying mental health disorders,” according to a new study released by North Carolina School of Medicine researchers. For the study, click here.
28.8% of our Medicaid expenditure went to long-term care. Again, not surprising with the rise of more aged, NC citizens. Kaiser Family Foundation data for FY 2009 show that approximately 27% of those enrolled in the North Carolina Medicaid program were categorized as aged or disabled, and that the cost of services for those 2 categories of recipients made up approximately 63% of the program’s total costs that year.
3.9% of our Medicaid expenditures for 2011 went to DSH payments. Disproportionate Share Hospital (DSH) adjustment payments provide additional money to hospitals that serve a significantly disproportionate number of Medicaid recipients.
3.9 + 28.8 + 67.4 = 100%
North Carolina’s total Medicaid spending including these additional items was approximately $11.149 million in FY 2011. ($10.5 billion + $648.8 million administrative costs). According to Beth Wood’s January 2013 Performance Audit, private contractor payments represent about $120 million (46.7%) of DMA’s $257 million in administration expenditures for FY 2012. Almost half of the administrative costs for Medicaid, in 2012, went to contracted companies, such as Piedmont, Carolinas Center for Medical Excellence (CCME), Public Consulting Group (PCG), etc…
So…here is my “A Modest Proposal:”
If you take the total Medicaid budget (currently, over $14 billion) for the fiscal year ended June 30, 2012, and divide the budgeted amount by 1.8 million (the approximate number of North Carolinians on Medicaid), you get: $7,777.78.
$7,777.78/year for each Medicaid recipient.
My health care premiums for a “Cadillac health care” with my husband costs $9000/year. And it is great health care. All copays are $10 for generics, $15 for non-generic. Doctor visits are $10, a specialist is $25. The beauty of my health care, though, is the deductible is only $500. I hit $500, and everything is covered.
Now, mind you, the $9000 ($750/month) includes my husband. If I wanted individual insurance it would only have cost $228/month or $2,736/year. Why the addition of my husband increases the premium from $228 to $750, I have no idea, but it does. (He does not even have pre-existing conditions!!! In fact, he flatly refuses to visit a doctor unless pending death. In my mind, he should have been cheaper than I).
As an individual, in order to pay for this “Cadillac” policy, you would have to pay $2,736/year. Add in the $500 deductible and the total cost (barring unexpected and individual costs) would be $3236.
Our Medicaid budget allows each Medicaid recipient approximately $7,777.78/year.
First, I propose North Carolina downsize 80-90% of the Division of Medical Assistance (DMA) and keep running a much smaller DMA for the sole purpose of determining yearly Medicaid eligibility, thereby cutting almost all administrative costs. I also propose hiring ZERO contracted companies for Medicaid. There is no reason for any contracted companies under my “A Modest Proposal for Medicaid Reform.”
17,000+ people are currently employed by Health and Human Services. But employment of citizens is not a reason to maintain an agency. Therefore, if we can manage Medicaid without 16,500 employees (which my “A Modest Proposal for Medicaid Reform” purports to do), then we are paying unnecessary administrative costs.
Secondly, taking the Medicaid funds, and, instead of paying administrative costs to DHHS, DMA, PCG, CCME, all the MCOs, we purchase excellent, quality private insurance for each Medicaid recipient. We pre-pay the deductible for all Medicaid recipients. We hand the Medicaid recipients a private insurance card that is “pre-paid” with no deductible.
A pre-paid, private insurance card! With no deductible! (Because the deductible is paid).
No more doctors refusing Medicaid! Think about it….all doctors would take the new “Medicaid,” because the recipients would have private insurors paying the full price for medical services.
No more placing the burden of whether a recipient meets medical necessity for a medical service in the hands of DMA or a contracted company. The private insuror would take on that burden and use the same standard of medical necessity as it does for all its consumers. And why not? The insurance company is getting paid the same…
Medicaid recipients would get quality care just as if they were not Medicaid-eligible. And isn’t that our goal? For the Medicaid recipients to be cared for just as well as if they were not Medicaid-eligible?
No more difficulty finding health care providers that accept Medicaid. Medicaid recipients would have the “Cadillac” Blue Cross Blue Shield just like I do.
No more excessively long, waiting periods at the ED! Medicaid recipients would benefit from continuity of care just like I do. No need to go to the ED for an ear ache. The primary care physician can tend to the ear ache.
No one would worry about Medicaid fraud anymore because, as to health care, everyone would be the same. (So, we could also eliminate the need for Program Integrity).
No more Medicaid provider contracts, as all health care providers would accept the new “Medicaid.”
No more Medicaid recoupments.
I profess, in the sincerity of my heart, that I have not the least personal interest in endeavoring to promote this [Medicaid reform], having no other motive than the public good of my [state], by advancing our trade, providing for [Medicaid recipients], and giving some pleasure to the rich.
Think what an impact North Carolina would have on the nation if we were to implement my “A Modest Proposal for Medicaid Reform!!”
On one of my many trips to the Division of Medical Assistance (DMA), I noticed two interesting items: (1) The flower vases at DMA are filled with paperclips, which securely anchor artificial flowers; and (2) A flyer reads, “Thinking Medicaid fraud and abuse “don’t hurt anyone” is just wrong! Every dollar wasted or stolen is a dollar that could have been used on provide health care for someone who needs it and follows the rules.”
The first item, the flower vases filled with paperclips and artificial flowers, I chalked up to resourcefulness. Someone at DMA wanted a little bit of decor…a bit of color…but, definitely did not want to spend our taxpayers’ money on a bouquet of flowers, which would just die and need to be replaced, or a piece of art, which could be construed as a poor use of taxpayers’ money. Instead, this resourceful person used office supplies and a cheap silk flower to decorate DMA.
The second item, the flyer,I chalked up to good propaganda. I mean, everyone wants to discourage Medicaid fraud, right? Obviously, Medicaid fraud costs taxpayers lots of money. Obviously, when a provider commits Medicaid fraud, we, as taxpayers, think….”How dare they! That fraudulent provider took money that could have been used on a Medicaid recipient!”
But…what about the Medicaid dollars being wasted on paying inept, third-party contractors erroneously conducting post-payment reviews and putting many Medicaid providers out-of-business by billing them for crazy, large, extrapolated amounts of money that they supposedly owe back to the government? Or erroneously conducting prepayment reviews? Or mis-managing behavioral health? What about THOSE Medicaid dollars that could have gone to services for Medicaid recipients????
Think about it. We are paying these third-party contractors with Medicaid dollars…Tax dollars.
We spend approximately 36 million, tax dollars a day on Medicaid.
When I first heard that statistic, I thought, “Wow! There are a lot of people on Medicaid.” Which is not completely incorrect. There are a lot of people on Medicaid. Approximately 1.5 million North Carolinians. But, the problem is that the $36 million a day does not go to treatment and/or medical services for Medicaid recipients. Much of that $36 million a day goes to third-party contractors who may or may not be conducting their jobs appropriately, efficiently, or, even, correctly.
Say I apply for and get a job at the Carolinas Center for Medical Excellence (CCME). My salary would be (I don’t know whether CCME makes any of its own money from private money, but), at least, partially, funded by federal and state taxes. Which means, if I were hired by CCME as a Medicaid auditor, theoretically, my audit results would be or should be available to the public. As one who receives taxpayer money, my findings should be available to the taxpayers…right? So if I were doing a crappy job as a Medicaid auditor, I should be accountable (for my crappiness) to all taxpayers. Just like the resourceful DMA employee would have been accountable if he or she had bought an expensive piece of art instead of filling flower vases with paper clips and cheap silk flowers.
Going back to the “accountability to taxpayers” theme, shouldn’t the third-party contractors receiving federal and state Medicaid taxpayer money be accountable to any interested taxpayer?
And shouldn’t the taxpayers in NC be concerned if these third-party contractors are not doing their jobs appropriately, efficiently, or, even, correctly?
And the $36 million/day…shouldn’t we be concerned that this $36 million/day is not going to service Medicaid recipients, but, instead, much of the $36 million/day is going to the salaries for people who work at these third-party contractors and who are not conducting their jobs appropriately, efficiently, or, even correctly.
If I could boycott paying state and federal taxes until the taxes were appropriately used, I would. But I believe I would end up in jail. Maybe we need a 2013 Boston Tea Party.
Remember the Boston Tea Party?
The Sons of Liberty, a political group in Boston during the American Revolution, was really mad about England taxing the colonists’ tea. They were ticked off about England’s Tea Act, which was passed in 1773. Colonists objected to the Tea Act because they believed that it violated their fundamental rights (remember, the violation could not have been considered a violation of constitutional rights, as the Constitution was not ratified until 1787) The slogan for the Boston Tea Party was “No taxation without representation.” Or, in other words, we can be taxed only by our own elected representatives and not by England because no colonist is a member of Parliament in England. So the colonists dumped a shipload of tea into the ocean to make a point.
Today, if a group of “radicalists” (because that is what they would be called nowadays) dumped a shipload of Medicaid funds into the ocean off the Boston harbor that group would, most likely, be jailed for stealing, destruction of property, trespassing, and probably contamination of the waters (if that were a criminal act), but definitely sued civilly for monetary damages.
Personally, I expect people receiving compensation from my tax dollars to (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly.
How do we determine whether these third-party contractors are conducting their jobs (a) be accountable; (b) do their job appropriately; (c) do their job efficiently; and (d) do their job correctly?
If I hired a painter, how would I determine that painter were doing his or her job (a) appropriately; (b) efficiently; and (c) correctly? Answer: Supervision. If I told my painter I wanted my bathroom painted red and he or she painted the bathroom green, I would (a) fire him or her; and (b) sue for breach of contract (seriously….WHO would want to work for ME???).
Yet, the State of North Carolina hires companies that do not conduct the jobs for which the company is hired appropriately, efficiently, or correctly, and, yet, NC does not fire the company…does not sue the company. It’s almost as if….if I hire someone else to do it, then I am not to blame. It’s as if….I had an associate who completely missed an appeal deadline, and, instead of saying, “Hey, I am the partner…I am the one in charge….Blame me…,” instead I said, “Whoa there, client, it’s not my fault. Blame my associate.”
Someone has to be accountable!
Had my previously-mentioned, resourceful, DMA employee bought a bouquet of fresh-cut flowers for decoration for the DMA office every week with taxpayers’ money or an Edvard Erikson statue of “The Little Mermaid” for decoration, someone would have been accountable, most likely, my (then non-resourceful) DMA employee.
Yet, DMA hires third-party contractors that are not conducting their jobs appropriately, efficiently, or correctly, and DMA says, “Whoa there, taxpayer, it’s not my fault. Blame the third-party contractor.”
And I think, “How dare they! That inappropriate, inefficient, and inaccurate third-party contractor took money that could have been used on a Medicaid recipient!”