Answer – Sometimes.
How many of you have received Remittance Advices from NCTracks that are impossible to understand, include denials without appeal rights, or, simply, are erroneous denials with no guidance as to the next steps? While these were most prevalent in the first couple years after NCTracks was rolled out (back in July 2013), these burdensome errors still exist.
You are allowed to re-submit a claim to NCTracks for 18 months. How many times do you have to receive the denial in order for that denial to be considered a “final decision?” And, why is it important whether a denial is considered a final decision?
- Why is it important that a denial be considered a “final decision?”
As a health care provider, your right to challenge the Department of Health and Human Services’ (via CSC or NCTracks’) denial instantly becomes ripe (or appealable) only after the denial is a final decision.
Yet, with the current NCTracks system, you can receive a denial for one claim over and over and over and over without ever receiving a “final decision.”
It reminds me of the Causus-race in Alice and Wonderland. “There was no ‘One, two, three, and away,’ but they began running when they liked, and left off when they liked, so that it was not easy to know when the race was over. However, when they had been running half an hour or so, and were quite dry again, the Dodo suddenly called out ‘The race is over!’ and they all crowded round it, panting, and asking, ‘But who has won?'” – Alice in Wonderland.
On behalf of all health care providers who accept Medicaid in North Carolina and suffered hardship because of NCTracks, at my former firm, I helped file the NCTracks class action lawsuit, Abrons Family Practice, et al., v. NCDHHS, et al., No. COA15-1197, which was heard before the NC Court of Appeals on June 12, 2015. The Opinion of the Court of Appeals was published today (October 18, 2016).
The Court of Appeals held that the plaintiffs were not required to “exhaust their administrative remedies” by informal methods and the Office of Administrative Hearings (OAH) prior to bringing a lawsuit in the State Court for damages because doing to would be futile – like the Caucus-race. “But who has won?” asked Alice.
Plaintiffs argued that, without a “final decision” by DHHS as to the submitted claims, it is impossible for them to pursue the denials before the OAH.
And the Court of Appeals, in a 2-1 decision, agrees.
The Abrons decision solidifies my contention over the past 4-5 years that a reconsideration review is NOT required by law prior to filing a Petition for Contested Case at OAH…. Boom! Bye, Felicia!
Years ago, I informed a client, who was terminated by an managed care organization (MCO), that she should file Petition for Contested Case at OAH without going through the informal reconsideration review. One – the informal reconsideration review was before the very agency that terminated her (futile); and two – going through two processes instead of one costs more in attorneys’ fees (burdensome).
We filed in OAH, and the judge dismissed the case, stating that we failed to exhaust our administrative remedies.
I have disagreed with that ruling for years (Psssst – judges do not always get it right, although we truly hope they do. But, in judges’ defenses, the law is an ever-changing, morphing creature that bends and yields to the community pressures and legal interpretations. Remember, judges are human, and to be human is to err).
However, years later, the Court of Appeals agreed with me, relying on the same argument I made years ago before OAH.
N.C. Gen. Stat. 150B-22 states that it is the policy of the State that disputes between the State and a party should be resolved through informal means. However, neither 150B-22 nor any other statute or regulation requires that a provider pursue the informal remedy of a reconsideration review. See my blog from 2013.
I love it when I am right. – And, according to my husband, it is a rarity.
Here is another gem from the Abrons opinion:
“DHHS is the only entity that has the authority to render a final decision on a contested medicaid claim. It is DHHS’ responsibility to make the final decision and to furnish the provider with written notification of the decision and of the provider’s appeal rights, as required by N.C. Gen. Stat. 150B-23(f).”
N.C. Gen. Stat. 150B-23(f) states, ” Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition. When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing.”
2. How many times do you have to receive the denial in order for that denial to be considered a “final decision”?
There is no magic number. But the Court of Appeals in Abrons makes it clear that the “final decision” must be rendered by DHHS, not a contracted party.
So which we ask – What about terminations by MCOs? Do MCOs have the authority to terminate providers and render final decisions regarding Medicaid providers?
I would argue – no.
Our 1915b/c Waiver waives certain federal laws, not state laws. Our 1915 b/c Waiver does not waive N.C. Gen. Stat. 150B.
“But who has won?” asked Alice.
“At last the Dodo said, ‘everybody has won, and all must have prizes.'” – Only in Wonderland!
Sometimes, you just need to stop running and dry off.
My mom taught me a song when I was young called, “A Hole in the Bucket.” It is a maddening song about a lazy husband named Henry who begins the song telling his wife Liza that “There’s a hole in the bucket, dear Liza, dear Liza….” To which Liza sings, “Then fix it, dear Henry, dear Henry…”
The song continues with Henry singing excuses and impediments to his ability to fix the hole in the bucket and Liza explaining to Henry how to overcome these excuses. The song goes around and around until, in order to fix the bucket, Henry would have to sharpen an ax on a stone that “is too dry,” and the only way to wet the stone is with the bucket that has a hole. “There’s a hole in the bucket…” And the songs starts anew and can be sung continuously, never-ending.
My husband and daughter audibly groan when I begin such song.
And you can’t blame them! It is discouraging and frustrating when something is caught in a never-ending circle with no end and no conclusion. It is human nature to try to resolve issues; it is also ingrained in Americans’ minds that hard work yields results. When hard work yields nothing but a big, fat goose-egg, it is exacerbating.
Kind of like claims in NCTracks…
When NCTracks went live on July 1, 2013, providers immediately began to complain the claims were being erroneously denied and they were receiving no reimbursements. Folks with whom I spoke with were at their wits-ends, spending hours upon hours trying to discern why claims were being denied and what process they could undertake to fix “the hole in the bucket.”
The problem persisted so long and I was contacted by so many providers that I instigated the NCTracks class action lawsuit, which is still pending on appeal, to the best of my knowledge, at my former firm. Although it was dismissed at the Business Court level, I believe it is on appeal. See blog.
Providers complained that, when they contacted CSC’s Help Desk regarding denied claims, the customer service representatives would have little to no understanding of the claims process and instruct them to re-file the denied claims, which created a perpetual cycle of unadjudicated claims.
“It was infuriating!” One provider explained. “It was as if we were caught in the spin cycle with no hope of stopping. I wanted to yell, ‘I’m dry all ready!!'”
“I was spending 20+ a week on NCTracks billing problems,” another said.
To which, I said, “There’s a hole in the bucket, dear Liza, dear Liza.”
Over two years after the “go live” date, the Department has now (finally) informed providers that there is an informal reconsideration review process for denials from CSC.
The September 2015 Medicaid Bulletin states that:
“This article provides a detailed explanation of the N.C. Division of Medical Assistance (DMA) procedures for Informal Reconsideration Review of adverse claim actions (denials, disallowances and adjustments) made by its fiscal agent, CSC.”
The Bulletin provides a 30 day time period during which a provider can appeal a denied claim:
“Time Limit for Submission of Request
- A provider may request a reconsideration review within 30 calendar days from receipt of final notification of payment, payment denial, disallowances, payment adjustment, notice of program reimbursement and adjustments. If no request is received within the respective 30 calendar day period, DMA’s action will become final.”
(emphasis in original).
You must request reconsideration review within 30 calendar days of the final notification. BUT what exactly is “final notification?” The initial denial? The second denial after re-submitting? The third? Or, what if, your claim is pending…for months…is that a denial? When CSC tells you to re-submit, does the time frame in which to file a reconsideration review start over? Or do you have to appeal every single denial for every single claim, even if the claim is re-submitted and re-denied 10 times?
This new informal appeal process is as clear as mud.
Notice the penalty for NOT appealing within 30 days…”DMA’s action will become final.”
This means that, if you fail to appeal a denial within 30 days, then the claim is denied and you cannot request a reconsideration review. Theoretically, there is a legal argument that, once the “final decision” is rendered, even if it were rendered due to you failing to request a reconsideration review, you would have 60 days to appeal such final decision to the Office of Administrative Hearings (OAH). Although, acting as the Devil’s advocate, there is an argument that your failure to request a reconsideration review and taking the appeal straight to OAH is “failing to exhaust your administrative remedies.” See blog. Which could result in your appeal being dismissed for lack of jurisdiction. This goes to show you the importance of having your attorney involved at the earliest juncture, otherwise you could risk losing appeal rights.
Let’s think about the “time limit for submission of request” in a real-life hypothetical.
You keep receiving denials for dialysis claims for no apparent reason. You received 20 denials on September 4, 2015. You contact a CSC customer service representative on September 8, 2015, four days later, due to Labor Day weekend. The customer service representative instructs you to re-file the claims because you must include the initial date of treatment in order to have the claims processed and paid (which was not required with HP Enterprises’ system). Is this the “final notification?” It does not seem so, since you are allowed to re-submit…
You revise all 20 claims to include the first treatment date on the claim and re-submit them on September 9, 2015. Since you re-submitted prior to the September 10th cutoff, you expect payment by September 16, 2015, 12 days after the initial denial.
You receive your explanation of benefits (EOBs) and 5 claims were adjudicated and paid, while 15 were denied again.
You contact CSC customer service and the representative instructs you to re-submit the 15 claims. The rep does not know why the claims were denied, but she/he suggests that you review the claims and re-submit. After hours of investigative work, you believe that the claims were denied because the NPI number was wrong…or the incorrect address was processed…or…
You miss the September 17th cut-off because you were trying to figure out why these claims were denied. you submit them for payment for the September 29th checkwrite date (25 days after the initial denial).
At this point, if any claims are denied, you wouldn’t know until October 6th, 32 days after the initial denial.
In my scenario, when is the final adjudication?
If the answer is that the final adjudication is at the point that the provider tries all possible revisions to the claims and continues to re-submit the claims until he/she cannot come up with another way to re-submit, then there is never final adjudication. As in, the provider could continue various changes to the billing ad nauseam and re-submit…and re-submit…and re-submit…”There’s a hole in the bucket!”
If the answer is that the final adjudication is the initial denial, then, in my scenario, the provider would be required to appeal every single denial, even for the same claim and every time it is denied.
You can imagine the burden to the provider if my second scenario is correct. You may as well hire a full-time person whose only task is to appeal denied claims.
Regardless, this new “Informal Reconsideration Review” purports to create many more questions than answers.
So may rules are enacted with good intentions, but without the “real life” analysis. How will this actually affect providers?
“There’s a hole in the bucket, dear Liza, dear Liza.”
“Then fix it.”
New State Auditor report investigates the Office of Medicaid Management Information Systems Services (OMMISS) within the North Carolina Department of Health and Human Services (DHHS).
With DHHS’ emphasis on detecting health care providers’ fraud, waste, and abuse (FWA) across the state, it seems ironic that its own agency is deemed guilty of wastefulness by our State Auditor. What’s that about glass houses……??
What exactly does OMMISS do? Well, for one, OMMISS works with Computer Sciences Corporation (CSC) regarding NCTracks. We all know how wonderfully NCTracks has operated since inception….See blog. And blog.
State Auditor Beth Wood finds:
At least $1.6 million wasted through excessive wages and commissions, unjustified overtime, and
holiday pay to ineligible employees
OMMISS Director engaged in or allowed nepotism
OMMISS Director received unauthorized compensatory time that may result in inflated retirement
Reports to General Assembly omitted at least $260,000 of overtime and compensatory time
Lack of adequate oversight of OMMISS despite findings in prior audit reports
As I am driving back to the office after lunch, I hear on the news that CMS has certified NCTracks! This is huge on so many levels, and I will have to add another blog about once I get more information. So after 2 years and almost 8 months after its go-live date, NCTracks is certified.
Had CMS not certified NCTracks, then NC would have lost millions of dollars in federal dollars to fund the computer program created by Computer Sciences Corporation (CSC).
I am going to look into the standards for the certification…I know there are over 600 criteria that must be met for certification…but what is the threshold? An ‘A?’ Or do you squeak by with a ‘D?’
In the meantime, NC will receive approximately $19 million from the federal government. NCTracks had replaced the decades-old computer system created by HP Enterprises back in the summer of 2013.
CSC is a named Defendant in a class action lawsuit filed on behalf of physicians across NC alleging that the computer system was fraught with errors when it went live, including erroneous denials and heavy administrative burdens.
Remember, this was not NCTracks’ first rodeo with an attempted certification from CMS. Back in 2013, CMS did not certify NCTracks.
In 2013, NCTracks did not meet a federal certification deadline that could have saved the state more than $9 million in annual operation costs. See article.
I was interviewed by Heather Waliga, ABC News, last Friday about the U.S. Attorney’s lawsuit against Computer Sciences Corporation (CSC) accusing CSC of hundreds of millions of dollars of Medicaid fraud.
To watch the video, please click here.
But, beware! Do not make the video full screen unless you are prepared to see a very, large, close-up picture of my head. The camera man zoomed in to, literally, just my head.
Jason DeBruyn of the Triangle Business Journal wrote:
Computer Sciences Corporation, the company that designed, developed and is operating the Medicaid claims payment system in North Carolina, is facing a health care fraud lawsuit brought by the U.S. attorney’s office in New York.
That lawsuit has no immediate impact in North Carolina, though Computer Sciences Corp. (CSC) built the system in this state – called NCTracks – using 32 percent of the code used in New York City. Initially, CSC had hoped to duplicate as much as 73 percent of the New York City code in North Carolina.
NCTracks has been the target of several attacks from health care providers who say they have not been paid on time. The N.C. Department of Health and Human Services, where NCTracks is housed, faces a lawsuit that could incorporate 70,000 health care providers and end up with damages exceeding $100 million. NCTracks has been the target of at least three searing audits.
The New York lawsuit, brought by Preet Bharara, the U.S. Attorney for the Southern District of New York, alleges billing fraud schemes that used computer programs to automatically alter billing data, including the use of a defaulting program to systematically falsify diagnosis codes submitted to Medicaid.
“As alleged, CSC and the City created computer programs that systematically, and fraudulently, altered billing data in order to get paid by Medicaid as quickly as possible and as much as possible,” Bharara said through a statement. “Billing frauds like those alleged undermine the integrity of public healthcare programs like Medicaid.”
Although this lawsuit makes no mention of activity in North Carolina, Knicole Emanuel, an attorney with Williams Mullen in Raleigh who represents providers in the lawsuit against DHHS, says it “will almost certainly cause the federal government to peer a bit closer at all CSC’s billing software systems in other states (including North Carolina).”
Representatives from DHHS did not immediately comment on the New York lawsuit.
Remember the NCTracks lawsuit? NCTracks Derailed: Class Action Lawsuit Filed!! Computer Sciences Corporation (CSC) is one of the Defendants in that action here in NC.
Well, Monday CSC was hit with another enormous lawsuit. This one is filed in New York, and the Plaintiff is the U.S. Federal Government.
The feds are accusing CSC of a multi-million dollar Medicaid fraud scheme through its Medicaid billing software CSC implemented in NY.
Here is the press release.
From the complaint: “[T]hese fraud schemes were far from isolated events; instead, they were part and parcel of a general practice at CSC and the City to blatantly disregard their obligations to comply with Medicaid billing requirements.” (Compl. par. 8.)
The feds are seeking treble damages, which permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff.
According to the lawsuit, CSC has received millions of taxpayer dollars (budgeted for Medicaid) unlawfully and in direct violation of federal billing requirements.
If I were a taxpayer in NY, I would be incensed!!!! If I were a Medicaid recipient of parent of a child receiving Medicaid services, I would be furious!!
Now, take a step back…who is administering our Medicaid billing system here in NC?
This will almost certainly cause the federal government to peer a bit closer at all CSC’s billing software systems in other states…
I cannot take credit for this blog. I cut and pasted the test from WRAL. But…WOW!!!!
Raleigh, N.C. — A state employee who helped oversee the construction and rollout of the NCTracks Medicaid billing system now works for Computer Sciences Corp., the contractor responsible for the troubled project. Paul Guthery was an IT manager at the Department of Health and Human Services, where he had worked since January 2010. At a hearing Wednesday, State Auditor Beth Wood described him as the agency’s “point person” for CSC, responsible for certifying NCTracks’ testing process. At least one good-government watchdog says his jump from supervising the company to working for it raises the appearance of a potential conflict of interest, one that the state should try to avoid in the future.
According to public records, Guthery began working for the state on Jan. 1, 2010. His last salary was $126,500 per year. He stopped working for the state Aug. 27 and soon after began working for CSC as an executive account executive. Doctors, hospitals and others who render care for patients covered by Medicaid, the state-federal health insurance program for the poor and disabled, must use the CSC-built NCTracks system to get paid for those services. The system went live July 1 and soon after become the focus of controversy, with providers saying it was nearly impossible to submit claims and that payments were delayed by months. The delays threatened to drive some providers out of business and complicated care for thousands of patients.
Since then, the state and CSC have struggled to right the program. It was in late August, as providers bombarded lawmakers and the governor’s office with complaints about the system, that Guthery made the jump to the private sector.
Guthery declined via email to speak with WRAL News, deferring to his company’s corporate communications department. Michelle Sicola Herd, a spokeswoman for CSC, declined a request for an interview and was not willing to speak on the record about the circumstances of Guthery’s hiring.
Officials with DHHS downplayed Guthery’s part in the rollout of NCTracks, saying Thursday that he never occupied a position in which he would give the final word on the program going live. “One of the key things is that Paul was one of many people involved in this project, a very large project going on for a very long period of time,” said Ricky Diaz, a spkesman for the department. Diaz emphasized that an outside testing group reviewed the stability of the NCTracks system before state officials turned it on July 1.
But Wood blasted the role of that third-party overseer, saying the company hired for independent verification and validation of system testing had not actually conducted any independent verification. Rather, they merely collected information from DHHS and CSC and summarized it in a report.
During a hearing Wednesday, Sen. Jeff Tarte, R-Mecklenburg, asked Wood who was responsible for signing off on reports that system testing had been completed and was successful.
“The agency,” Wood answered, adding, “The point person that was at the agency is now working for CSC.” That person was Guthery.
Diaz said state personnel laws prevent him from talking about what, if any, steps were taken to try to keep Guthery as an employee. But he emphasized that the state had taken strides to get the system on track, pointing out that it has been under construction for more than 10 years.
“There have no doubt been challenges. This is a very large transition for the state of North Carolina,” he said. “The NCTracks project has, to date, paid $3.8 billion to North Carolina health care providers, as well as processing more than 78 million claims.” With regard to Guthery, Diaz said state law does not currently prohibit employees who work with a contractor from taking a job with that contractor. By contrast, had Guthery taken a job as a lobbyist, he would have needed to wait six months before working with the legislature or his old employer. No such cooling-off period applies to employees in other lines of work.
Jane Pinsky, with the North Carolina Coalition for Lobbying and Government Reform, says lawmakers should consider changing that. “If I’m a skeptical, cynical citizen, the question is, did he (Guthery) give them a pass and then they gave him a job?” Pinsky said. Earlier this year, another high-ranking DHHS staffer left for a private-sector job. Former state Medicaid director Carol Steckel was recruited to overhaul North Carolina’s system but left abruptly for a position with Wellpoint, a managed-care company based in Florida.
Pinsky pointed out that Wellpoint could end up bidding to run some or all of North Carolina’s Medicaid services under the McCrory administration’s planned reforms.
“In state government, and in DHHS, it is not unprecedented for employees to go work for vendors,” Diaz said.
Asked if he thought the Guthery situation could be viewed as a conflict of interest, Diaz said DHHS was being “very transparent” with regard to the situation. Asked if the agency would put any policy changes in place, Diaz referred to DHHS Secretary Aldona Wos’ efforts to improve contracting practices more broadly. “I think what you’ve seen is this secretary has placed a heavy emphasis on contract oversight and compliance,” he said. But Pinsky says the problem could be addressed in other ways. “One thing you can do is tell the contractor that, as a condition of the contract, they can’t hire anybody” in the agency, she said. She also suggested the possibility of a non-compete clause for employees hired to administer contracts.
In the meantime, she says, lawmakers should consider instituting a cooling-off period for high-level staffers. “Anybody who oversees a contract or supervises an industry shouldn’t be able to go to work for them the next day,” she said. “Does that affect any decisions they’re going to make in how they administer the contract?”
My daughter came home from school a couple of weeks ago with a bad grade on a test. I sat her down and explained the importance of being proactive. I explained that if she knows that a test is coming up that it is her responsibility to study in advance for that test and her responsibility to inform me that the test is coming so that I can ensure that she studies enough (she is only in the 3rd grade, so I still have to check all her homework). She understood and has been bringing home A’s ever since.
She gets study sheets prior to a test…she just wasn’t using it.
The importance of being proactive…
To my daughter, being proactive meant the difference in a bad grade and consistent A’s.
Now here we are….NCTracks’ 3-month anniversary!
October 1, 2013, DHHS released a press release touting the “proactiveness” of DHHS dealing with NCTracks issues. In fact, the word “proactive” is used 6 times in the one page press release.
According to the “thefreedictionary.com,” proactive is defined as: “Acting in advance to deal with an expected difficulty; anticipatory.”
How is DHHS acting proactively to deal with NCTracks problems if the “proactive” measures occur 90 days AFTER NCTracks goes live??????!!!!!
The October 2013 Medicaid Bulletin offers information pertaining to the following topics:
NCTracks Common Issues
Staying Current on ICD-10
NCTracks User Guides Available
Receiving Email Alerts Through NCTracks
NCTracks Contact Information
Clinical Coverage Policies
4 topics with information germane to NCTracks. And there is quite a bit of information within each topic.
In the June 2013 Medicaid Bulletin (the month prior to NCTracks going live), this is the information DHHS provided:
NCTracks is a multi-payer system that will consolidate several claims processing platforms into a single solution for multiple divisions within the N.C. Department of Health and Human Services (DHHS), including the Division of Medical Assistance, the Division of Mental Health, Developmental Disabilities and Substance Abuse Services, the Division of Public Health, and the Office of Rural Health and Community Care.
The new NCTracks system will go live on July 1, 2013. In advance of that date, there are a number of things that providers can do to prepare for the transition, including taking advantage of upcoming training opportunities.
The June Medicaid Bulletin also provided info as to signing up for emails with NCTracks and the checkwrite schedule. But nothing as thorough as the October Medicaid Bulletin.
Sure, you can make the argument that DHHS could not have provided more information prior to going live because DHHS had no idea what future problems there would be. Obviously, DHHS also cannot foretell the future.
BUT….DHHS DID HAVE ADVANCE WARNING OF POSSIBLE ISSUES.
Remember the May 2013 Performance Audit conducted by the State Auditor Beth Wood?
One of the recommendations in the Performance Audit was that “[t]he Department should re-evaluate its current “Go” decision for July 1, 2013, once final Go/No-go criteria is established and documented. This assessment should incorporate the final user acceptance testing and production simulation testing results.”
Finding #5 shows that DHHS had no “go-live” criteria to even determine whether NCTracks should go live.
Finding #3 states that the assessments for NCTracks were live and put system readiness at risk.
Finding #2 states that the production simulation testing is flawed.
Finding #1 states that hundreds of critical user test cases were not conducted.
Before a test, my daughter has a study sheet to review…to make sure that she is fully prepared for the test. Similarly, DHHS had a Performance Audit to review…to make sure DHHS and the Medicaid providers were fully prepared prior to going live.
Unlike my daughter, DHHS failed to study.
The importance of being proactive…