Blog Archives

New Federal Legislation Proposed to Increase Due Process for Health Care Providers!

Every once in a blue moon, I am actually happy with the actions of our government. One of these rare occasions occurred on March 17, 2016. Happy St. Patty’s Day!

On March 17, 2016, Senior Senator John Thune from South Dakota introduced S.2736: A bill to require consideration of the impact on beneficiary access to care and to enhance due process protections in procedures for suspending payments to Medicaid providers.

How many times have I blogged about the nonexistence of due process for Medicaid providers??? I cannot even count. (Well,I probably could count, but it take quite some time). My readers know that I have been complaining for years that the federal regulations consider Medicaid provider guilty until proven innocent. See blog. And blog.

Well, finally, someone in Congress has taken notice.What is really cool is that my team at my law firm Gordon & Rees was asked to provide some input for this bill…pretty cool! Although I have to say, everything that we proposed is not included in the proposed bill. Apparently, some of our suggestions were too “pro provider” and “didn’t stand a chance to be passed.” Who would have thought? Baby steps, I was informed.

The bill, if enacted, would require the Secretary of Health and Human Services (HHS) to revise the Code of Federal Regulations, specifically the Title 42 of the CFR.

Currently, 42 CFR 455.23 reads: “the State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part.” (emphasis added). Rarely has a state agency found “good cause” to not suspend payments. In fact, quite the opposite. I have seen state agencies use this regulation harshly and with intent to put providers out of business.

S.2736 would revise the above-mentioned language and require that a state agency take certain steps to ensure due process for the provider prior to implementing a suspension in payments.

Prior to implementing a payment suspension, this proposed bill would require the state agency to:

  • Consult with the Medicaid fraud unit for the state and receive written confirmation of such a consultation; and
  • Certify that the agency considered whether beneficiary access would be jeopardized or whether good cause exists, in whole or in part (according to the new, proposed manner of determining good cause)

We all know that the above bullet points supply more protection than we have now.

Furthermore, there are protections on the back end.

After a suspension is implemented, at the beginning of each fiscal quarter, the state Medicaid agency must:

  • certify to the Secretary that it has considered whether the suspension of payments should be terminated or modified due to good cause (as modified by S.2736); and
  • if no good cause is found, furnish to the provider the reasons for such determination.

S.2736 allow requires the agency to disclose the specific allegations of fraud that is being investigated (after a reasonable amount of time) and to evaluate every 180 days whether good cause exists to lift the suspension. Regardless, good cause not to continue the suspension will be deemed to exist after 18 months (with some other qualifying details).

According to a government track website, this bill has a 8% chance of getting past committee. And a 3% chance of being enacted.

The stats on all bills’ “pass-ability,” is that only 15% of bills made it past committee and only about 3% were enacted in 2013–2015.

So call your Congressman or woman! Support S.2736! It’s not perfect, but it’s better!!!

Supreme Court Upholds Obamacare! Three Judges Dissent, Calling the Decision Absurd!

Mark this day, June 25,2015 (also my daughter’s 10th birthday) as also the birth of a new state.  Our country, according to the Supreme Court’s decision in King v. Burwell, now consists of 51 states.  The Health and Human Services (HHS) is now our 51st state.

Today the Supreme Court decided the King v. Burwell case.

If you recall, this case was to determine whether the plain language of the Affordable Care Act (ACA) should be upheld.  According to the ACA, people were to receive tax subsidies or “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges, but only those enrolled in through an Exchange established by the State under [§18031]. §36B(c)(2)(A).

See blog.

“Specifically, the question presented is whether the Act’s tax credits are available in States that have a Federal Exchange.”

“At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so.”

In Justice Scalia’s words, “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

However, the majority disagrees.

Apparently, HHS is now our 51st state.

The upshot of the Decision is that the majority found that, despite our country’s deep-rooted, case law precedent that when a statute is unambiguous that the plain meaning of the statute prevails.  Despite hundreds of years of the Supreme Court upholding statutes’ clear meanings, the Supreme Court, in this case, decided that “[i]n extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”

Therefore, when the ACA became law, and the word “state” was used, surely, Congress meant “state and/or federal government.”  Or, on the other hand, let’s just call HHS a state for the purpose of the ACA.

In Justices Scalia, Thomas, and Alito’s opinions, the decision is absurd.  In the dissent they write, “The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

Argument analysis: Working out the broader implications of a Medicaid suit

This is a copy of an article written by William Baude on SCOTUSblog.

In the article, William analyzes the oral arguments for Armstrong v. Exceptional Child Center, a very important Supreme Court case heard by the Justices January 20, 2015.  If you don’t recall the lawsuit, see my blog: “Low Medicaid Reimbursement Rates Violate the Supremacy Clause?!… The Supreme Court to Weigh In!

Here is the analysis:

The Supreme Court has heard a lot of preemption suits, but Tuesday’s arguments in Armstrong v. Exceptional Child Center suggest that the Court has not yet agreed on what exactly the formal underpinnings of those suits are.

The case features a debate about the intersection of two lines of precedent. One line restricts the availability of a federal statutory cause of action unless Congress has deliberately included one. The other line makes a cause of action broadly available when the plaintiff seeks an injunction to enforce a constitutional provision. At issue in this case is whether suits to enforce the preemptive effect of a federal statute are more like constitutional injunctions or statutory suits.

Both lines of precedent were on full display at yesterday’s argument. Shortly after his argument started the state’s counsel, Carl Withroe, was pressed with questions about the many prior preemption cases the Court had heard. Justice Ruth Bader Ginsburg adverted to a list of fifty-seven cases attached to the Medicaid recipients’ brief that are alleged to fail under the state’s theory. Withroe made several different attempts to distinguish those cases, although he did not seem to fully satisfy the Court. Towards the end of Withroe’s argument, Justice Anthony Kennedy asked “Did I miss something? … I thought you were going to give us a principled way to say why this case is different from our other preemption cases.”

Deputy Solicitor General Ed Kneedler took the podium next, attempting to supply that principled basis. He argued that Spending Clause legislation, and Medicaid specifically, was different from the usual preemption case for reasons rooted in the history of equity practice. Traditional equitable remedies, he said, could vindicate a person’s “liberty,” “property,” or “business,” but Medicaid was none of those things because it was a spending program created by a cooperative agreement with the state. Once again, Justice Kennedy chimed in at the end of Kneedler’s time to question whether his theory really distinguished one of the Court’s prior cases, American Trucking Associations v. City of Los Angeles.

Representing the Medicaid recipients, attorney James Piotrowski also faced skepticism about the implications of his position, and seemed to embrace them more than to distinguish them. He openly conceded that his clients would not have a right to sue under the Court’s statutory cause of action cases or under Section 1983. But the Supremacy Clause suit, he stressed, would seek only the narrow remedy of an injunction.

Justice Samuel Alito asked Piotrowksi whether his argument implied that someone could challenge a state’s decision to legalize marijuana as preempted by federal drug laws. Yes, Piotrowksi agreed, so long as Article III standing was satisfied, there would indeed be a cause of action. (Though Justice Alito did not specifically mention a suit by a state, the question might have been inspired by the recent marijuana preemption lawsuit filed in the Supreme Court’s original jurisdiction by two states — Oklahoma and Nebraska.)

And when Chief Justice John Roberts suggested to Piotrowski that his position would open “the courthouse door to everybody who says that federal law was not followed,” Piotrowski agreed: “Yes, your honor, that’s right. We open the courthouse doors.”

At the same time, Piotrowski also conceded that Congress could expressly preclude a preemption suit if it spoke clearly. The key, he argued, is that Congress’s decision not to create a statutory cause of action was not the same as a congressional decision to prohibit a cause of action that came from other background legal principles. Justice Kennedy did not ask Piotrowski any questions.

Lest this abbreviated summary make it seem like argument followed a clear path, I should say that there were also plenty of side points raised throughout. There were questions about how the state’s reimbursement rates related to its formula, a question from Justice Elena Kagan about why nobody from the federal Department of Health and Human Services had signed the federal government’s amicus brief, a response from Chief Justice Roberts about whether DHS was just trying to help the health-care sector “get a bigger chunk of the federal budget,” and a series of questions from Justice Stephen Breyer about the doctrine of “primary jurisdiction,” including a nostalgic reminiscence about the Civil Aeronautics Board “of blessed memory.” But the Justices also constantly reminded one another that the question was whether the suit could be brought, not whether it should prevail.

Four Justices have already answered that question in their dissent three years ago in Douglas v. Independent Living Center. Over the next few months, we will see if they have persuaded any of their colleagues to join them.

Medicare chief Tavenner stepping down; oversaw rocky health care rollout

News Alert: Medicare Chief Tavenner stepping down!!!! 

Here is the article:

WASHINGTON — Medicare chief Marilyn Tavenner — who oversaw the rocky rollout of the president’s health care law — says she’s stepping down at the end of February.
In an email Friday to staff at the Centers for Medicare and Medicaid Services, Tavenner, a former Virginia health secretary and hospital executive, said she’s leaving with “sadness and mixed emotions.”

Tavenner survived the 2013 technology meltdown of HealthCare.gov, but was embarrassed last fall when she testified to Congress that 7.3 million people were enrolled for coverage. That turned out to be an overcount that exaggerated the total by about 400,000.

Calling Tavenner “one of our most esteemed and accomplished colleagues,” Health and Human Services Secrerary Sylvia M. Burwell said the decision to leave was Tavenner’s.
Principal deputy administrator Andy Slavitt will take over as acting administrator.

New Mexico Senator Proposes Forefront State Legislation to Provide Due Process to Providers Accused of Fraud (Oh, And Here Are Some NC Election Results)

Whew…the election is over.  No more political ads, emails, and other propaganda… Ok, so we have our new elected officials, now our new elected officials need to pass some new legislation protecting providers when it comes to “noncredible allegations of fraud.”

Due Process…It’s such a fundamental part of our society that we rarely think about due process on a day-to-day basis. Not until due process is violated, do we usually contemplate it.

However, when it comes to credible allegations of fraud against a health care provider who accepts Medicaid or Medicare, the federal government, arguably, dropped the ball. The federal regulations instruct the states to “afford due process,” but fail to instruct how. 42 CFR 455.23. Which leaves the due process component in the states’ hands.

To begin with, the standard for a credible allegation of fraud is excruciatingly low. I mean, LOW. The bar has been set so low that an ant would probably climb over the bar rather than walk beneath it. See my past blogs: “New Mexico Affords No Due Process Based on a PCG Audit.”and   “NC Medicaid Providers: “Credible Allegations of Fraud?” YOU ARE GUILTY UNTIL PROVEN INNOCENT!!”  For example, a disgruntled employee or a competitor can draft an anonymous letter without a signature and without a return address, send it to the single state entity, and all your reimbursements could be suspended without any notice to you.

Senator Mary Kay Papen of New Mexico and her team have drafted a fantastic proposed state bill which would provide safeguards for health care providers’ due process while still allowing the state to investigate Medicaid fraud. I mean, let’s face it, we want to catch Medicaid fraud, but we don’t all live in Florida…or New York. 🙂 Fraud is much more infrequent than people imagine compared to the overreaching ability of the single state agencies to suspend innocent providers’ reimbursements.

I had the privilege of flying out to New Mexico a week or so ago to testify before a subcommittee of the legislature about my opinion of Senator Papen’s proposed bill.

Little known fact about New Mexico: The New Mexico legislature is the only unpaid legislature in the country. I had no idea. To which, I said, which I believed was a logical statement, “why doesn’t the legislature pass a bill that creates salaries for members of the legislature?” I was told that no bill providing salaries to members of legislature would ever be signed by the governor (no specific governor, I believe, but, any governor) because the status of governor is so important/powerful in New Mexico due to the less powerful legislature. In other words, supposedly, no governor would sign a bill instituting salaries for members of legislature because the governor would be fearful to lose power. (I do not know the validity of this conjecture, but I do find it interesting).

Going back to the proposed bill…

For starters, the proposed bill re-defines “credible allegation of fraud.” Instead of the current federal statute, which holds an allegation credible if it is merely uttered aloud, the proposed bill states that a credible allegation of fraud is credible only after the single state entity:

1. Considers the totality of the facts and circumstances;
2. Conducts a careful review of the facts, evidence, and facts; and
3. Determines that sufficient indicia of reliability exist to justify a reason to refer the provider to the Attorney General (AG) for further investigation.

The proposed bill also forbids extrapolation as to alleged overpayments.

Further, the proposed bill forbids the state agency from suspending payments until certain safety procedures are met. For example, all appeals and administrative remedies must be exhausted, and the bill allows the provider to post a bond in order to keep receiving reimbursements.

It also allows a provider to receive injunctive relief against the agency in order to continue receiving reimbursements.

And, my favorite part, states that a judge may award attorney’s fees if it shown that the agency substantially prejudiced the provider’s rights and acted arbitrarily and capriciously. Obviously, the attorneys’ fees are not a given; the provider would need to show that the state, somehow, acted, for example, without enough evidence or failed to provide due process.

Senator Papen’s proposed bill is just that…a proposed bill.  But, it is a start in the right direction.  If, in fact, the federal government placed the burden on the states to implement due process in situations in which there are allegations of fraud, then the states need to act.  Because, right now, when there is noncredible allegation of fraud, the state has the ability, and is using this ability in many states, to completely shut down providers.  In essence, an allegation of fraud becomes the death of a company…no reimbursements, no income, no payroll, terminate staff, cease paying bills, file for bankruptcy.

The End.

I encourage more states to review Senator Papen’s proposed bill and propose similar bills in other states.

And for you politicians…the best part? At least, in New Mexico, the bill appeared to be supported by a non-partisan group.

BTW, in case you are interested, here are the changes to our General Assembly and Congress after Tuesday’s election: (brought to you by Tracy Colvard, Vice President of Government Relations and Public Policy for AHHC).

The Numbers

North Carolina Legislature

  • Republicans in N.C. House (2015-16): 74
  • Number needed for supermajority: 72
  • Democrats in N.C. House (2015-16): 46
  • Change from 2013-2014: +3 DEM
  • New faces in House: 15
  • Incumbents defeated: 4
  • Republicans in N.C. Senate (2015-16): 34
  • Number needed for supermajority: 30
  • Democrats in N.C. Senate (2015-16): 16
  • Change from 2013-2014: +1 GOP
  • New faces in Senate: 6
  • Incumbents defeated: 1

N.C. Congressional Delegation

  • Republicans in U.S. House: 10
  • Democrats in U.S. House: 3
  • Change from 2013-2014: +1 GOP
  • Republicans in U.S. Senate: 2
  • Democrats in U.S. Senate: 0
  • Change from 2013-2014: +1 (GOP)

Thanks, Tracy, for those demographics.

Now, let’s get some due process safeguards for health care providers!!!!

Obamacare, Health Care Exchanges, Subsidies, Typos, and Speak-o’s

Have you ever said something that you immediately wished you could put back in your mouth? I know I have! In fact, just recently, I was eating lunch with my husband and one of our closest friends Josh. Josh, his wife, Tracey, my husband Scott and I ride horses together almost every weekend. Our daughters come with us, and it’s a fun family event. So, I should have known that a manger is a tool used in barns to hold the hay for the horses to eat, not just baby Jesus’ bed.

Josh tells me that he is going to pick up a manger. To which I respond, “Josh, why do you need a baby manger?” If words came out of your mouth on a string, I would have grabbed that string and shoved it back into my mouth. Of course, my husband had no end to his ribbing. “Josh, why do they sell baby mangers in Tractor Supply?” And “Baby Jesus was so lucky that someone put a manger in that barn for when he was born.”

At that point, I would have liked to claim that I had a “speak-o.” You know, like a typo, but for speech.

At least this is what Jonathan Gruber has claimed…that he made a speak-o in 2012.

Jonathan Gruber is one of the architects of the Affordable Care Act (ACA). He drafted much of the language included in the ACA. After the ACA was passed, Gruber was interviewed by a number of journalists regarding specific sections of the ACA. One of the sections on which he spoke was the section that allowed for health care premium subsidies for people enrolled in the program who reside in states which created state-run health care exchanges as opposed to states that opted to use the federal exchange. For ease of this blog, I will call this ACA section the “Health Care Premium Subsidies Section.”

As I am sure you are aware if you follow my blog, two appellate court cases came out July 22, 2014, regarding the Health Care Premium Subsidies Section, with polar opposite holdings. In Halbig v. Burwell, the D.C. Circuit Court found that the clear language of the ACA only allows the health care premium subsidies in states that created their own state-run health care exchanges, i.e, residents in NC along with 35 other states would not be eligible for the subsidies. See my blog: “Halbig: Court Holds Clear Language of the ACA Prohibits Health Care Subsidies in Federally-Run Exchanges.”

Juxtapose the 4th Circuit Court’s decision in King v. Burwell, which held that “For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.”

The two cases were released within hours of each other and came to two entirely different conclusions. Halbig: ACA is clear; King: ACA is ambiguous.

Interesting to note is that D.C. is not a state, and the 4th Circuit clearly embraces five states.

In my Halbig blog, I explain the legal analysis of statutory interpretation. I also explain that based on my reading of the Health Care Premium Subsidies Section, I tend to side with the D.C. courts and opine that the Section is not ambiguous.

If, however, a court finds that the statutory language is ambiguous, the court defers to the agency’s interpretation “so long as it is based on a permissible construction of the statute,” which is clear case law found in the 4th Circuit.

Therefore, once the 4th Circuit determined that the statute is ambiguous, the court made the correct determination to defer to the IRS’ ruling that all states could benefit from the subsidies.

Yet another approach to statutory interpretation is considering the legislative intent. The courts may attempt to evaluate legislative intent when the statute is ambiguous. In order to discern legislative intent, courts may weigh proposed bills, records of hearing on the bill, amendments to the bill, speeches and floor debate, legislative subcommittee minutes, and/or published statements from the legislative body as to the intent of the statute.

Recently, some journalists have uncovered 2012 interviews with Gruber during which he states that the Health Care Premium Subsidies Section was drafted intentionally to induce the states to create their own health care subsidies and not rely on the federal exchange. How’s that for intent?

The exact language of that part of the 2012 interview is as follows:

Interviewer: “You mentioned the health information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.”

Gruber: “I think what’s important to remember politically about this is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get the tax credits… I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

What do you think? You think Gruber is pretty explicit as to legislative intent? Well, at least in 2012….

In 2014, Gruber states, as to his 2012 comment, “I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.”

According to Gruber, Congress made a typo; Gruber made a speak-o.

“It’s unambiguous that it’s a typo,” Gruber tells reporter Chris Matthews from NBC and MSNBC.

Um…a typo when the statement is spoken? Hence, the new word “speak-o” blowing up Twitter.

If Gruber’s statement was truly a speak-o, it was a re-occurring speak-o. Gruber also made two speeches in which he listed three possible threats to the implementation of Obamacare. In both cases the third “threat” was that states would not set up exchanges and, instead, would rely on the federal government.

I anticipate that Gruber’s 2012 and contrary 2014 statements will be at issue as these cases, Halbig and King, move forward.

As for me, I would like to invoke my own speak-o’s. I can only imagine how I will be received when I appear before a court and say, “Your Honor, I apologize. That was a speak-o.”

Will Heated Disagreements over Medicaid Expansion Cause the Eradication of the Freedom of Speech?

Over last few months, I have noticed multiple examples of a state government attempting to silence opposing views, especially when it comes to Medicaid expansion/reform. Two of them, from Louisiana and Missouri, are discussed in this blog.  Those government efforts to silence protests raise serious concerns about the health of our freedom of speech.  Is our freedom of speech so limited now that we cannot express dissimilar views from those in government?  The First Amendment of our U.S. Constitution protects the freedom of speech.

Here are some out-of-state examples of attempts to thwart the freedom of speech:

Down in Louisiana, a group called Moveon.org, leased a billboard and advertised the following:

Louisiana

For obvious reasons, the Governor of Louisiana, Bobby Jindal, disapproved of the billboard and brought a lawsuit against Moveon.org in federal court requesting the federal judge to Order Moveon.org to remove the billboard.

The federal judge denied the lieutenant governor Jay Dardenne’s request for an injunction, and the billboard remains.

Similarly, in Kansas City, Missouri a couple dozen clergymen were arrested by Capitol police for singing “Amazing Grace” at the legislature.  The pastors were peacefully protesting that refusing to expand Medicaid was an “amazing disgrace.”  These pastors should have been protected by the freedom of speech and the freedom to assemble.

North Carolina is not immune from these attempts to silence disparate viewpoints.  During the 2013 General Assembly session 924 people were arrested during Moral Monday protests.  (The Moral Monday protests consist of people chanting and yelling their political views around and in the legislative building).  More have been arrested this year during the short session, which is now in session.  My firm has its office in the PNC building downtown Raleigh, so each Monday, I can hear the protestors walking the streets, chanting their cheers, and, subsequently, the police sirens.  I understand that many issues drive these Moral Monday protests and that Medicaid expansion/reform is one of these issues.

924 arrested people…that’s a lot of people arrested.  For each arrested person, taxpayers are paying for the person’s stint, however short, stay at the police station.  The police are devoting resources and time to peaceful protesters instead of violent criminals.

In an effort to stay some of these economic considerations and other considerations, the General Assembly had new Legislative Building rules ready before the beginning of the short session that would prohibit people from “making a noise loud enough to impair others’ ability to conduct a conversation in a normal tone of voice” and would provide for the arrest of those “creating an impediment to others’ free movement around the grounds.”

It is understandable that the legislators would like their offices quiet enough to hold conversations; I know my nerves get irritated by loud music or conversations outside my office door.  But is prohibiting the loud noise and arresting those noise culprits the right answer?  And who is to say what a “normal tone of voice” is.  For gracious sake, Bill Clinton argued about the definition of the word “is.”  “Normal tone of voice” is vaguer than the word “is.”  I know my husband would tell you that my normal tone of voice is “obnoxiously loud,” so is my tone of voice “normal?”

Recently Judge Carl Fox issued an Order stating that the new Legislative Building rules with phrases that include “disturbing behavior” and “disruptive signs,” are too vague to enforce.  Judge Fox stayed the General Assembly’s implementation of the new rules until a determination as to the constitutionality of the rules could be made.

As previously stated, North Carolina is not the only state that is attempting to limit speech and protests.  And the Republicans are not the only group attempting to silence opposing views.  Earlier this year, the federal government, vis-a-vis the IRS, announced that it would try to rewrite rules to limit how much political activity nonprofits can do and still qualify for tax-exempt status, which would limit the ability of social welfare charities to even discuss the political candidates close to an election (hence, inhibiting the freedom of speech).

But, first, why should we care whether people can protest at the legislature or comment on political views?

When I was a first year law school student, one of the core class requirements was Constitutional Law class.  The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There are always exceptions to the general rule of you having the right to say whatever and wherever you like.  Despite these limitations, as of now, in America, we still celebrate the freedom of speech.

When evaluating whether a person has the freedom to say something, it is easy to get caught up on the content of the message.  Suppose I wrote something here inflammatory against women.  Many people would have a hard time discussing the constitutionality of my speech without focusing on the content of that statement.  However, our courts must look past the content of the statement to the constitutionality of the speech.

The Supreme Court set its standard for limiting the freedom of speech (that we use today) back in the 1960s.  The High Court overruled its previous “clear and present danger” standard and wrote:

“[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.

(emphasis added).  The above language was written by the Supreme Court in 1969 and was followed by the Cohen v. California case.  In Cohen, the Supreme Court overturned a conviction of a man who was wearing a shirt with the depiction: “Fuck the Draft!” inside a courtroom.  In one of the most eloquent decisions in history, Justice John Marshall Harlan, who wrote the majority opinion, stated that Cohen’s jacket constituted protected political speech.  He wrote that, despite the use of an expletive, “one man’s vulgarity is another man’s lyric.” The First Amendment recognizes enough breadth to permit a wide range of differing political views, even speech that exceeds traditional limitations of courtesy and polite behavior.

It is the logical assessment by Justice Harlan that we need to continue to implement today.  In order to determine whether we should limit a person’s freedom of speech, we must close our ears to the content of the speech and determine whether the speech is protected by the Constitution.  Read the Constitution.  Read Supreme Court cases regarding the freedom of speech.  The more polarized the content of the speech, the more likely we may be to immediately ban the speech without due regard for the Constitution.

Think about….what are your hot button topics? Abortion?  Fracking?  Stem cell research?  The death penalty?  Racism?  Now think about the worst possible thing that any person could say to you, which would incite your anger uncontrollably.  Say it to yourself in your head.  Then imagine yourself comparing the “hate speech” to whether “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”  Does the imagined words incite you to lawless action?  Unless you imagined statements simply horrible, most likely, the words would cause you anger, frustration and resentment, but not cause you to conduct imminent lawless action.

My point is that we cannot confuse constitutionally protected speech with statements by people with differing political and moral views.  I remember my dad told me one time, “If there are two people with the exact same opinions, then one person is not necessary.”

Differing views shape our country.  But, recently, in the area of Medicaid, health care and Obamacare, people on both sides of the aisle are forgetting to step back and read the Constitution.  People on both sides of the aisle are stooping to name calling and attempts to restrict speech.  Our Constitution does not limit the freedom of speech to: “anything that will make everyone happy”…or “any statements that are aligned with the views of whoever is in charge.”

What if we lived in a country in which you are thrown in jail for placing a billboard touting your disagreement with the administration’s decisions or for singing “Amazing Grace” in a legislative building?

If we lived in a country in which you could be thrown in jail for speaking your mind, then we need to make immense amendments to our Constitution, and I also better start researching where to move.

Federal Sequester Deadline: March 1st: Medicaid Impacted

The federal sequester deadline is March 1, 2013.  Either major budget cuts will occur or Congress will, again, postpone the deadline. Literally, Congress has just two weeks to avert massive cuts to the federal budget totaling $1.2 trillion.

The legal term “sequester” means the act of seizing valuable property and locking it away for safekeeping. But, since the 80s, the term sequester, when related to the federal budget,  has meant a “seizure” or sequestration of funding.

Upon first glimpse of the federal sequester, it appears that Medicaid is exempt. I mean, according to the federal government, Medicare, Medicaid, and Social Security budgets will not be touched via sequestration.  Whew! That’s a relief!  Isn’t it great that the across-the-board budget cuts will not affect Medicaid? Wait…not so fast….

Under the March 1 federal sequestration, the Department of Health and Human Services (“DHHS”) would be forced to absorb cuts of about $6.6 billion. Isn’t DHHS the agency charged with managing Medicaid? Wouldn’t a $6.6 billion budget cut to DHHS impact Medicaid?  So how exactly is Medicaid exempt?

Medicaid is not exempt. Perhaps, the big general rule was meant to keep Medicaid exempt, but, in reality, Medicaid will be hit just as all other federal budgets.  It reminds me of commercials advertising gym memberships for $9.99/month*.  The asterisk (*) changes the whole deal. In reality, the gym costs $9.99/month as long as you sign up for a 2-year membership and agree to undergo 2 private training sessions for $59.99 each.

In reality, the general rule that Medicaid is exempt* should have a giant asterisk next to it.

Why do I say an asterisk is required? I mean, the fact that DHHS’ budget will be cut by $6.6 billion does not necessarily mean that the Medicaid budget will be impacted. Maybe DHHS will just cut administrative costs and do nothing to the actual Medicaid budget. One can hope, right?

Despite the DHHS budget cuts under the federal sequester, Medicaid will be affected in another latent (or sneaky) way.  Remember when Pres. Obama promised that state Medicaid reimbursement rates would be increased to the federal Medicare reimbursement rates?

If Congress cannot come to another agreement or instigate another delay to federal sequester by March 1, Medicare reimbursement rates to doctors will be reduced by 2% under the automatic cuts.

If budget sequestration is allowed to go into effect on March 1, according to a report released in September by the Office of Management and Budget (“OMB”), it will cut $100 billion from the Medicare program over 10 years, with $11 billion in 2013. The slashes to Medicare will come from program reductions and lower payments to various health care providers rather than beneficiaries.

Lower Medicare physician reimbursement rates!!!! $11 billion in only 2013!

Good thing, the federal government has promised to raise Medicaid reimbursement rates up to the federal Medicare reimbursements rates (Can you read my sarcasm?).

It’s the old bait and switch. We will raise Medicaid reimbursement rate to Rate X and we will decrease Rate X immediately. Yes, read that again. The old bait and switch.

Unless Medicaid reimbursement rates are increased for health care providers accepting Medicaid, health care providers will cease to accept Medicaid.  Medicaid recipients will have no health care providers to seek medical help. We are seeing the decrease of health care providers accepting Medicaid already.

So, what will happen in 2 weeks?

Thank goodness Medicaid is exempt********

Medicare Reimbursement Rates Slashed for Hospitals: Medicaid to Follow

This blog is dedicated to North Carolina Medicaid.  However, per Obamacare, in the future, the Medicaid reimbursements rates will be in direct correlation to the federal Medicare reimbursement rates.  Therefore, Medicare reimbursement rates are important to Medicaid.

Earlier this month, Congress was forced to tangle with the “fiscal cliff.”  I’m sure everyone, as well as myself, is grateful, mostly because we were sick of hearing the term, “fiscal cliff.”

A lesser-known component of Congress’ fiscal cliff avoidance is that Congress, once again, thwarted the annual threat of Medicare reimbursement rates to physicians getting cut by 26.5%.  Of course, per Congress’ normal course of business, the avoided rate cut  is only a temporary fix.  Next year, again, we will be faced with the same threat.  Since 2003, annually, Congress must decide whether to allow the Medicare reimbursement rates to physicians to be reduced.  So far, every year, Congress has prevented the Medicare reimbursement rates to be slashed. So why not pass legislation that puts an end to the annual debacle? I, for one, actually thought this year Congress may do just that while they were tangling with the fiscal cliff.  But no such luck.

If you have been following my blog, or read any of my past blogs, then you know that I am a huge advocate of higher reimbursement rates for physicians who accept Medicaid.  Not enough physicians accept Medicaid for the number of Medicaid recipients. Medicaid recipients have the right to receive quality medical health care. With the Medicaid reimbursement rates so low, many physicians refuse to accept Medicaid patients, and those that do accept Medicaid often refuse to run expensive tests due to the Medicaid reimbursement rate.

With that said, Congress thwarting the Medicare rate reduction again this year is a good thing. Reimbursement rates need to increase, not decrease.

However, let’s not cheer on Congress too much for their temporary fix on not reducing the Medicare reimburse rates.  Remember, I said that the reduction rate this year was supposed to be 26.5%.

How much did this temporary hold on Medicare reimbursements rates cost? According to federal budget officials, the cost of stopping the 2013 Medicare physician payment reduction is $7 billion for a one-year pay patch.

$7 BILLION.

So…Yay for the temporary hold on Medicare reimbursement rates….But, where did the $7 billion come from?

Quick evaluation of necessary services for Medicaid recipients:

1. Physicians accepting Medicaid

2. Hospitals accepting Medicaid

Think about it. If a Medicaid recipient cannot locate a physician accepting Medicaid, the recipient has little choice but to check in at the local emergency room. Hospitals ERs, sadly, become the Medicaid recipients’ primary care doctor in the absence of one accepting Medicaid. (Didn’t you wonder why it takes 5 hours to be seen at the ER?)

Back to the $7 billion:

U.S. hospitals will be footing most of the bill for $7 billion.  While Congress averted the fiscal cliff and a slash to Medicare reimbursement rates, Congress slashed the Medicare reimbursement rate to hospitals.  The legislation cuts Medicare payments to hospitals for taking care of patients overnight and as inpatients to the tune of about $10.5 billion over 10 years. It also reduces subsidies for  some pharmacies and some dialysis facilities.

Hmmmmm…so, by maintaining the status quo on Medicare reimbursements to physicians, hospitals that accept Medicare will suffer?

Why this makes zero sense: By maintaining status quo with physicians accepting Medicare, we are not increasing the number of physicians who accept Medicare. We are maintaining the number.  If you agree with me that we desperately need more physicians accepting Medicare/caid, then maintaining status quo is not good enough. Plus, by understanding the Medicaid/care’s reliance on hospitals in light of few physicians accepting Medicare/caid, you understand that crippling hospitals accepting Medicare/caid is the opposite of what is needed by the Medicare/caid population. Congress essentially robbed Peter to pay Paul.

At some point, government officials are going to need to decide that Medicaid is important enough to really fix. When that happens, officials will realize that reimbursement rates need to be at a level which cause physicians and hospitals to opt to treat Medicaid recipients. Maintaining the current reimbursement rates is not acceptable.  Neither is decreasing reimbursement rates to some health care providers to stop a decrease in reimbursement rates to another type of health care provider. If the Medicaid rates are tied to Medicare’s rates, then, obviously, we need to increase reimbursement rates to both.

I understand increasing the Medicaid reimbursement rates would be costly. But isn’t it also costly for North Carolina to have millions of Medicaid recipients without proper health care? With no physician who will accept Medicaid? And visiting the costly ER for services that a primary care physician could handle?  Maybe the answer is that today’s Medicaid program is antiquated. Medicaid was created in 1965 with millions less Americans taking part in it. Maybe the Medicaid system was not created with the foresight of the number of Americans who would rely on it for medical insurance. Maybe 57 years after creation, we need to completely revamp the Medicaid system. I wonder whether a politician would ever have the guts to revamp the entire Medicaid system. And would he or she ever get elected????