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Once You STOP Accepting Medicaid/Care, How Much Time Has to Pass to Know You Will Not Be Audited? (For Past Nitpicking Documentation Errors)

I had a client, a dentist, ask me today how long does he have to wait until he need not worry about government, regulatory audits after he decides to not accept Medicare or Medicaid any more. It made me sad. It made me remember the blog that I wrote back in 2013 about the shortage of dentists that accept Medicaid. But who can blame him? With all the regulatory, red tape, low reimbursement rates, and constant headache of audits, who would want to accept Medicare or Medicaid, unless you are Mother Teresa…who – fun fact – vowed to live in poverty, but raised more money than any Catholic in the history of the recorded world.

What use is a Medicaid card if no one accepts Medicaid? It’s as useful as our appendix, which I lost in 1990 and have never missed it since, except for the scar when I wear a bikini. A Medicaid card may be as useful as me with a power drill. Or exercising lately since my leg has been broken…

The answer to the question of how long has to pass before breathing easily once you make the decision to refuse Medicaid or Medicare? – It depends. Isn’t that the answer whenever it comes to the law?

By Whom and Why You Are Being Investigated Matters

If you are being investigated for fraud, then 6 years.

If you are being investigated by a RAC audit, 3 years.

If you are being investigated by some “non-RAC entity,” then it however many years they want unless you have a lawyer.

If being investigated under the False Claims Act, you have 6 – 10 years, depending on the circumstances.

If investigated by MICs, generally, there is a 5-year, look-back period.

ZPICS have no particular look-back period, but with a good attorney, reasonableness can be argued. How can you be audited once you are no longer liable to maintain the records?

The CERT program is limited by the same fiscal year.

The Alternative: Self-Disclosure (Hint – This Is In Your Favor)

If you realized that you made an oops on your own, you have 60-days. The 60-day repayment rule was implemented by the Centers for Medicare and Medicaid Services (“CMS”), effective March 14, 2016, to clarify health care providers’ obligations to investigate, report, and refund identified overpayments under the Affordable Care Act (“ACA”).

Notably, CMS specifically stated in the final rule that it only applies to traditional Medicare overpayments for Medicare Part A and B services, and does not apply to Medicaid overpayments. However, most States have since legislated similar statutes to mimic Medicare rules (but there are arguments to be made in courts of law to distinguish between Medicare and Medicaid).

 

 

 

RAC Audits: If It Walks Like a Duck and Quacks Like a Duck, It IS a RAC Audit

Recently, hundreds of dentists across North Carolina received Tentative Notices of Overpayment (TNOs) from Public Consulting Group (PCG) demanding recoupment for reimbursements made to dentists who rendered services on Medicaid for Pregnant Women (MPW) eligible recipients. There was no dispute at this hearing that these women were eligible for MPW according to the Department of Health and Human Services’ (DHHS) portal. There was also no dispute that these woman had delivered their babies prior to the date of dental service. So the question becomes: If DHHS informs a dentist that a woman is MPW eligible on the date of the service, does that dentist have an individual and separate burden to determine whether these women are pregnant. And if so, what is it? Have them pee in a cup prior to dental services?  See blog, and blog, and blog.

We do not have a definitive answer to the above-posed question, as the Judge has not rendered his decision. However, he did substantially limit these “nameless audits” or “non-RAC” audits to the RAC program limitations. In an Order on our Motion for Partial Summary Judgment, the Administrative Law Judge (ALJ) found that, even if the State does not agree that an audit is a RAC audit, if the audit conducted falls within the definition of a RAC audit, then the audit is a RAC audit.

The reason this is important is because RAC auditors yield such powerful and overwhelming tools against health care providers, the Affordable Care Act (ACA) limits the RAC auditors’ ability to look-back on older claims. For example, even though a provider is, generally, required to maintain records for six (6) years, the federal regulations only allow RAC auditors to look-back three (3) years, unless credible allegations of fraud exist.

Thus, when an auditor reviews documents over three-years-old, I always argue that the review of claims over 3-years-old violates the statute of limitations and federal law.

During hearings, inevitably, the state argues that this particular audit…the one at issue here…is not a RAC audit. The opposing side could no more identify which acronym this audit happens to be, but this audit is not a RAC. “I don’t know what it is, but I know what it’s not!”

Well, an ALJ looked past the rhetoric and pleas by the State that “this is not a RAC” and held that if it walks like a duck and quacks like a duck, then it is a RAC audit and, subsequently, the RAC audit limitations do apply.

In the case for this dentist, Public Consulting Group (PCG) audited claims going back as far as six years! The Department of Health and Human Services’ argument was that this audit is not a RAC audit. So what is it? What makes it NOT a RAC? Because you say so? We all know that PCG has a contract with DHHS to perform RAC audits. Is this audit somehow outside its contractual purview?

So I filed a Motion for Summary Judgment requesting the Judge to throw out all claims outside the three-year look-back period per the RAC limitations.

Lo, and behold, I was right!! (The good guys win again!)

To understand this fully, it is important to first understand what the RAC program is and its intention. (“It depends on what the definition of “is” is”).

Under 42 U.S.C. § 1396a(a)(42):

the State shall—(i) establish a program under which the State contracts (consistent with State law and in the same manner as the Secretary enters into contracts with recovery audit contractors under section 1893(h), subject to such exceptions or requirements as the Secretary may require for purposes of this title or a particular State) with 1 or more recovery audit contractors for the purpose of identifying underpayments and overpayments and recouping overpayments under the State plan and under any waiver of the State plan with respect to all services for which payment is made to any entity under such plan or waiver[].

(emphasis added).

RAC is defined as an entity that “…will review claims submitted by providers of items and services or other individuals furnishing items and services for which payment has been made under section 1902(a) of the Act or under any waiver of the State Plan to identify underpayments and overpayment and recoup overpayments for the States.” 42 CFR § 455.506(a).

Under this definition, PCG is clearly a recovery audit contractor. And the Judge agreed. If it walks like a duck and quacks like a duck, just because the duck protests it is a donkey, it is still a duck. (Hmmmm..wonder how this logic would carry over to the whole transgender bathroom issue…another topic for another blogger…)

RACs must follow certain limitations as outlined in the Code of Federal Regulations. For example, pursuant to 42 C.F.R. § 455.508(f), a Medicaid RAC “must not review claims that are older than 3 years from the date of the claim, unless it receives approval from the State.”

In this particular case, there were 15 claims at issue. Eleven (11) of those claims were outside the three-year look-back period!! With one fell swoop of an ALJ’s signature, we reduced the claims at issue from 15 to 4. Nice!

In DHHS’ Response to our Motion for Partial Summary Judgment, DHHS argued that, in this case, PCG was not acting as a RAC; therefore, the limitations do not apply. In support of such decision, DHHS supplied an affidavit of a DMA employee. She averred that the audit of this particular dentist was not per the RAC program. No rules were cited. No contract in support of her position was provided. Nothing except an affidavit of a DMA employee.

Obviously, it is my opinion that the ALJ was 100% accurate in ruling that this audit was a RAC audit and was limited in scope to a 3-year look-back period.

If it walks like a duck, quacks like a duck, it is not a donkey. No matter how much it pleads that it is, in fact, a donkey!

Remember the Super Bowl Ad of the Puppy, Baby, Monkey?:

superbowlpic

That is so NOT ok!

RAC Audits: “The Big Bad Wolf” Is Coming to Medicare Advantage…Soon! Beware!

Recovery Audit Contractors (RACs) have been prevalent in traditional Medicare and Medicaid for years now. However, RACs have not knocked on the doors of providers who accept Medicare Advantage yet, despite the Affordable Care Act (ACA) requiring them to do so by 2010. Are RACs going to target Medicare Advantage? Keep reading…

RACs are like the Big Bad Wolf in the “Three Little Pigs.” “Little pig, little pig, let me in!” “Not by the hair of my chinny chin chin!” “Then I’ll huff and puff and blow your house down!”

bigbadwolf

According to the Center for Medicare and Medicaid Services (CMS), “the Recovery Audit Program’s mission is to identify and correct Medicare improper payments through the efficient detection and collection of overpayments made on claims of health care services provided to Medicare beneficiaries, and the identification of underpayments to providers so that the CMS can implement actions that will prevent future improper payments in all 50 states.”

But the above explanation fails to paint the whole picture.

RACs are compensated by contingency fees. In other words, the more claims they find noncompliant, the more money they are paid. Plus, RACs extrapolate their findings. If a RAC finds $6000 in noncompliant claims, then they extrapolate that number across a universe (usually three years) and come up with some exorbitant number. See blog and blog. The financial incentives create overzealous auditors.

What type of providers accept Medicare Advantage? Advantage providers include optical providers, some durable medical equipment (DME), dentists, nutritionists, and some providers of wellness programs. The Medicare Advantage recipients usually pay a premium. Approximately 15.8 million people rely on Medicare Advantage policies.

CMS has been looking to implement the RAC program on Medicare Advantage for months…if not years. Now, it appears, that the RAC program will be leashed on Medicare Advantage very soon.

“And I’ll blow your house down!!”

CMS released a request for information in December 2015 on how to incorporate RACs into Medicare Advantage, but made little progress until recently.

My “sources” (ha – like I am a journalist) have informed me that the RAC program will soon be released on the Medicare Advantage providers. So be forewarned!!

Don’t be:

pigblown

Caught with your pants down!

Knicole Emanuel Speaks Out on WRAL: You Do Not Pee in a Cup at the Dentist!

WRAL Knicole

http://www.wral.com/dentists-left-holding-bills-for-services-to-pregnant-women/15311392/

Or click here.

Going to the Dentist? You May Need to Take a Pregnancy Test!

I go to the dentist for teeth cleaning. I go to an ob/gyn for my lady parts. They each are not entwined.

Recently, a number of dentists have contacted me they are receiving Tentative Notices of Overpayment (TNOs) stating that they owe money back to the state for dental services completed on women who had already given birth.

What?

First, what is Medicaid for Pregnant Women?

Basically, Medicaid for Pregnant Women (MPW) is a self-defining type of Medicaid coverage.  It is Medicaid coverage for pregnant women.

According to DHHS, “Medicaid for Pregnant Women (MPW) only covers services related to pregnancy:

  • Prenatal care, delivery and 60 days postpartum care
  • Services to treat medical conditions which may complicate the pregnancy (some services require prior approval)
  • Childbirth classes
  • Family planning services

A pregnant woman may apply for this program before or after she delivers. A woman who has experienced a recent pregnancy loss may also be eligible.”

And routine dental services are covered for MPW recipients through the date of delivery.

But, the day after the child is born…BOOM…no routine dental visits.

Here is a hypothetical example of this new issue that I have recently been made aware:

Mary is pregnant and is covered by MPW.  She makes a dental appointment for August 1, 2015.  She is due September 1, 2015.  She gives birth to a bouncing, baby boy, whom she names Paul on July 28, 2015.  Even though Paul is early, he is healthy (this is a happy hypothetical).  She shows up for her dental appointment with Dr. Peter on August 1, 2015.

Herein lies a delicate subject…due to its sensitive nature, I will now revert the hypothetical to myself, personally, and only for this narrow topic.

I had my beautiful 10-year old daughter at 28 weeks.  She came three months early. Despite the early delivery, I had expanded in the stomach area at least as much as a normal pregnant woman, if not more so.  Chalk it up to Harris Teeter birthday cakes. After my daughter was born, the insensitive, yet rule-following nurse actually had the audacity to place me on a scale (while I was conscious and alert!).  I was horrified to discover that after all that I went through that I had lost a mere 4 pounds.  She must have seen my look because she quickly explained that I had been pumped with so much fluid during the procedure that my weight was inflated. Likely story, I thought.  The point of this short anecdote is that I looked the same after giving birth that I did prior to giving birth.  Embarrassingly, my transition back to a normal, un-pregnant body extended for a much longer than expected period of time. Chalk it up to Harris Teeter birthday cakes.

Ok, going back to our hypothetical…

Mary really wants her teeth cleaned because, once she gives birth, she knows full well that she will not be able to undergo a teeth cleaning.  So when she presents herself at Dr. Peter’s  office and Dr. Peter asks whether she is still pregnant, she answers, “Yes, sir.”

Dr. Peter, undergoing all the due diligence that a dentist can be expected, has his assistant log on to NCTracks.  According to NCTracks, Mary is eligible for MPW. No changes are noted on her eligibility.  Satisfied with his due diligence, Dr. Peter cleans Mary’s teeth.

Two years later, Dr. Peter receives a TNO stating that he owes $10,000 back for services rendered to women after they gave birth.

Dr. Peter conducted his due diligence.  Dr. Peter inquired as to the pregnancy status to the patient.  Dr. Peter checked eligibility status with NCTracks.

What more would the state expect Dr. Peter do to determine whether his dental patients are indeed still pregnant? Ask them to pee in a cup? Hire a onsite ob/gyn?

You can imagine the consequences of each.

Yet, according to a number of dentists who have communicated with me, the state is placing the burden of knowing whether the dental patient is still pregnant on the dentist.

Talk about accountability! If NCTracks shows that the patient is eligible for MPW, shouldn’t NCTracks be held liable instead of the dentist?

Call me crazy, but I may or may not be extremely angry if my dentist asks me to pee in cup.

OIG Finds Questionable Billing! California Medicaid Dentists: Expect Withholdings or Other Penalties!

Currently, dentists who accept Medicaid are ripe for pickings as targets for regulatory audits from both the federal and state governments. Actually, this is true for any provider that accepts Medicaid. It just happens that, recently, I have noticed an uptick in dental audits both in North Carolina and nationwide. Some dentists, who accept pregnancy Medicaid, may even bear the burden of determining pregnancy prior to a teeth cleaning…however, that is a topic for another day.  Although, I tell you what, if my dentist asked whether I were pregnant prior to cleaning my teeth, he may have an abnormally red cheek the remainder of the day and I may join Crossfit.

Moving on….

Generally, dentists tend to not accept Medicaid. The reimbursement rates barely cover overhead. Add high regulatory compliance requirements, the likelihood of undergoing audits, and the government’s robust and zealous desire to tackle fraud, waste, and abuse (FWA), and it is no wonder why most dentists opt to not accept Medicaid. See blog. And blog.

Those dentists (and other providers) that do make the decision to accept Medicaid, these brave and noble souls, are subject to onerous audits; the result of a recent California audit is probably sending shock waves through the California dental community.

335 dental providers in California have been targeted by OIG as having questionable billing issues. Sadly, this is only the beginning for these 335 providers. Now the state will audit the providers, and these 335 providers may very well become the subject of a payment withhold in the near future.

What will happen next?

I will look into my crystal ball, otherwise known as experience, and let you know.

First, the Office of Inspector General (OIG) recently published a report called: “QUESTIONABLE BILLING FOR MEDICAID PEDIATRIC DENTAL SERVICES IN CALIFORNIA.

One can only imagine by the title that OIG found alleged questionable billing. Otherwise the title may have been, “A Study into Medicaid Billing for Medicaid Pediatric Dental Services,” instead of “Questionable Billing.” With such a leading title, a reader knows the contents before reading one word.

What is questionable billing?

Importantly, before addressing what IS questionable billing, what is NOT questionable billing? Questionable billing is not abhorrent billing practices. Questionable billing is not wasteful billing or abusive billing. And questionable billing is certainly not fraudulent billing. That is not to say that some of these questionable billing will be investigated and, perhaps, fall into one the aforementioned categories. But not yet. Again, these dentists have a long journey ahead of them.

In this context, questionable billing seems to mean that the OIG report identifies dentists who perform a higher number of services per day. OIG analyzed rendering dental providers’ NPI numbers to determine how many services each rendering provider was providing per day. Then OIG compared the average Medicaid payment per kid, number of services per day, and number of services provided per child per visit. OIG determined a “threshold” number for each category and cited questionable billing practices for those dentists that fell egregiously outside the thresholds. Now, obviously, this is a simplistic explanation for a more esoteric procedure, but the explanation is illustrative.

This study of California Medicaid dentists is not first dental study OIG has undertaken. Recently, OIG studied Medicaid dentists in New York, Louisiana, and Indiana. What stands out in the California Medicaid dental study is the volume of dentists involved in the study. In Indiana, OIG reviewed claims for 787 dentists; in New York it reviewed claims for 719 dentists, and in Louisiana, OIG studied 512 dentists’ claims, all of whom rendered services to over 50 Medicaid children.

In California, OIG studied 3,921 dentists.

Why such a difference?

Apparently, California has more dentists than the other three states and more dentists who accept Medicaid. So, if you are Medicaid dentists, apparently, there is more competition in California.

Juxtapose that, in California, in 2012, only 3 periodontists, 3 prosthodontists, 2 endodontists, and 1 oral pathologist provided services to 50 or more children with Medicaid in California.

Going back to the audit findings…

OIG considered dentists who exceeded its identified threshold for one or more of the seven measures to have questionable billing.

The result?

OIG identified 329 general dentists and 6 orthodontists out of 3,921 providers as having with questionable billing. But these findings are only the beginning of what will, most likely, become a long and tedious legal battle for these 335 providers. Lumping together so many dentists and claiming questionable billing practices will inevitably include many dentists who have done nothing irregular. Many other dentists, will have engaged in unintentional billing errors and may owe recoupments. But I foresee a very small number of these dentists to actually have committed fraudulent billing.

Here is an example found in the OIG’s report, OIG identified that 108 dentists provided stainless steel crowns to 18% of the children served by these dentists, compared to an average of only 5% of children receiving stainless steel crowns by those served by all general dentists (non-Medicaid).

Another example is that 98 dentists provided pulpotomies to 18% of the children, while the statewide percentage is 5% to undergo pulpotomies.

Do these examples show that 108 dentists providing stainless steel crowns and that 98 dentists providing pulpotomies are improperly billing?

Of course not.

It is only logical that dentists who accept Medicaid would have a significantly higher number of pulpotomies compared to dentists who service the privately insured. Usually, although not always, a Medicaid recipient will have more issues with their teeth than those privately insureds. In order to qualify for Medicaid, the family must live in poverty (some more than others with the expansion of Medicaid in some states). Some of kids in this population will have parents who do not harp on the importance of dental hygiene, thus allowing many kids in this population to have decay in their teeth. Obviously, this is a generalization; however, I am confident that many studies exist to back up this generalization.

Therefore, if you accept  my generalization, it makes sense that Medicaid dentists perform more pulpotomies than private insurance dentists.

And stainless steel crowns go hand in hand with pulpotomies. Unless you extract the tooth after the removal of the decay, you will need to provide a stainless steel crown to protect the tooth from future damage.

What will happen next?

OIG admits in its report that “our findings do not prove that providers either billed fraudulently or provided medically unnecessary services, providers with extreme billing patterns warrant further scrutiny.”

Which is precisely what will happen next…”further scrutiny”…

The OIG report recommends to California that it:

• Increase its monitoring of dental providers to identify patterns of questionable billing
• Closely monitor billing by providers in dental chains
• Review its payment processes for orthodontic services
• Take appropriate action against dental providers with questionable billing

It is that last recommendation, taking appropriate action, which will determine the future course for these 335 Medicaid providers. Because, as many of you know if you have followed my blog, the California Department of Health Care Services (DHCS) has a large toolbox with a considerable amount of tools for which it may yield its power against these providers…right or wrong. The same goes for all state Medicaid agencies. When it comes to a Medicaid provider and a Medicaid state agency, there is no balance of powers, in fact, there is only one power. Instead the scales of justice have one arm on the ground and the other raised in the air. There is an imbalance of power, unless you arm yourself with the right allies.

Possible future actions by DHCS:

• Payment suspensions
• Withholds of all reimbursements
• Post payment review
• Prepayment review

And combinations thereof.

DCHS stated that “it will review the dental providers referred by OIG and will determine by December 2015 what appropriate action may be warranted. Should there exist any provider cases not previously evaluated by existing program monitoring efforts, DHCS will take appropriate action through the available channels.”

First, December 2015 is a short timeframe for DCHS to audit 335 providers’ records and determine the proper course of action. So, expect a vendor for DCHS to be hired for this task. Also, expect that an audit of 335 providers in 7 months will have flaws.

These California dentists and orthodontists need to arm themselves with defense tools. And, quickly. Because it is amazing how fast 7 months will fly by!!

The report also states that OIG will be undertaking a study in the future to determine access to dental care issues.  I will be interested in the result of that study.

These possible penalties that I already enumerated above are not without defenses.

These 335 CA Medicaid dental providers have administrative remedies to prevent these possible penalties.   In other words, these 335 CA Medicaid dental providers do not have to take this lying down. Even though it appears that an imbalance of power exists between the state agency and the providers, these providers have appeal rights.

The second that any of these providers receive correspondence from DCHS, it is imperative that the provider contact its attorney.

Remember, some appeals have very short windows for which to appeal.  Do not miss an appeal deadline!!

Shortage of Dentists Who Accept Medicaid: The Shortage Continues

Here is a repost from over a year ago.  But, recently, I met a orthodontist that accepts Medicaid.  He informed me that very, very few orthodontists accept Medicaid in North Carolina.  I was reminded of this post and realized that, sadly, nothing has changed.  In fact, if any change has occurred, I venture to say that less dentists accept Medicaid after the implementation of NCTracks.

 I’ve blogged before about the shortage of dentists for Medicaid recipients. Just see my post “Medicaid Expansion: BAD for the Poor” to read about Deamonte Driver’s story and why he died due to not being able to find a dentist accepting Medicaid. But, today and yesterday, I decided to conduct my own personal investigation. (remember, this was almost a year ago).

(First, let me assure you that this blog is not condemning dentists for not accepting Medicaid recipients. I am informatively (I know, not a word) pointing out the facts. We cannot expect dentists to accept Medicaid when the Medicaid reimbursements dentists receive cannot even cover their costs.)

I googled “Raleigh dentist” and called, randomly, 20 dentists listed. I said the same thing to each receptionist, “Hi. I was wondering whether you accept Medicaid.” Every office had a receptionist answer (no recording asking whether I wanted to continue in English or Spanish). Every office receptionist was very sorry, but the dental practice did not accept Medicaid. 0. Zero out of a random 20.

So I went on North Carolina Department Health and Human Services’ (DHHS) website for dental providers. I pulled up the dental providers, and, lo, and behold, 44 pages were full of dental providers for Medicaid recipients. Literally, 1,760 dental providers are listed (44 pages times 40 lines per page). (However, some practices are listed more than once, so this number is an approximation).

I thought, Wow. Tons of dentists in North Carolina accept Medicaid. Then I looked again. On the far right side of the chart, there is a space for whether the dental practice is accepting new clients. Roughly 1/2 of the listed dental providers are NOT accepting new Medicaid clients.

I called a few of the dentists in Wake County accepting Medicaid. Again, I asked whether they accepted Medicaid. One stated, “Yes, but not at the moment.” Another said, “Yes, but only for children 21 and under.” Another gave a blanket, “Yes.

So that’s Wake County…what about more rural counties?

I called a few dentists in Union County. Two practices did not answer. One dental practice answered and gave me a “Yes.” According to the DHHS chart of Medicaid-accepting dental providers, 20 dentists in Union County accept Medicaid. 4 of which are not accepting new clients and one dental practice is listed as the health department. There are no orthodontists in Union County accepting Medicaid.

The phone numbers for two dental providers in Swain County were changed or disconnected. There are only 3 dental providers in Swain County. There are no orthodontists in Swain County.

There is only 1 dental provider accepting Medicaid in Pamlico County. According to the DHHS chart, the one dental provider is not accepting new patients. There are no orthodontists in Pamlico County.

Polk County lists 3 dentists accepting Medicaid, but not one of the dentists are accepting new clients. There are no orthodontists in Polk County.

Mitchell County has 4 dental providers acccepting Medicaid. But 3 of those dental practices are not accepting new clients. There are no orthodontists in Mitchell County

In Clay County, the only dental practice accepting Medicaid recipients is the health department.

In Ashe County, there are 3 dentists listed that will accept Medicaid. Only 2 are accepting new clients, one of which is the health department. There are no orthodontists in Ashe County.

In Alamance County, there are 4 dentists listed by DHHS who will accept Medicaid patients. The first one I called (a orthodontist) told me that they accepted Medicaid patients only from certain general dentists. The second one was not accepting new patients. The third one (also an orthodontist) informed me that Medicaid does not cover orthodontia services for Medicaid recipients over 21 (I must sound old!!!) The fourth dental practice’s voicemail informed me that the office is only open Wednesdays and Thursdays for limited times. Of the 4 dental practices accepting Medicaid, 3 were orthodontists, one did not accept new clients. The only general dentist (pediatric) only practiced in the local office two days a week.

Shortage of dentists accepting Medicaid? You decide.

Hello, 2014! And Hello 3% Decrease in Medicaid Reimbursements (But Call the Decrease “Shared Savings”)

Tomorrow is the first Medicaid checkwrite for 2014 (and its my birthday too).  Happy New Year! Happy birthday!! (I’m turning 29 for the 10th year).  For New Years, my husband and I had a very quiet evening eating crab legs at home. Yum! I am sure many of you made New Years resolutions…work harder…lose weight…get paid 3% less….WHAT?

With the first Medicaid checkwrite tomorrow, due to Session Law 2013-360, many health care providers will receive 3% less in Medicaid reimbursements.  You will receive a 3% cut if you are the following types of providers:

  • Inpatient hospital.
  • Physician, excluding primary care until January 1, 2015.
  • Dental.
  • Optical services and supplies.
  • Podiatry.
  • Chiropractors.
  • Hearing aids.
  • Personal care services.
  • Nursing homes.
  • Adult care homes.
  • Dispensing drugs.

(This is the exact list as found in Session Law 2013-360.  I am well aware that the list is grammatically-challenged, but I did not write it).  Both the federal government and NC are calling this 3% withholding “Shared Savings Plan with Provider.” 

How is this “shared savings with providers” when the government is withholding money from providers??? Sure, supposedly, there will  be a “pay for performance payment” to some providers, but most providers will just be reimbursed 3% less.

How is this fair?  How is this “shared savings?” 

Here’s an example:

Say I work at Harris Teeter and my manager comes up to me and says, “Hey, Knicole, Harris Teeter is really concerned with our overhead costs.  Salaries seem to be a big cost, and we want to “share the savings” with you.  So we are going to cut your pay by 3%.  If we, subjectively, determine, at the end of the year, that you are working hard and saving us money, then we will give you a performance reward.  It will not be all the money we retained, but it will be some amount.  This way Harris Teeter profits off the interest of the 3% we retain all year, plus the amount we never give you.”

Folks, the above example is called a decrease in pay and a swift kick in the bottom.  It is not “shared savings.”

In DHHS’ shared savings scheme, the money will go to:

“The Department of Health and Human Services shall use funds withheld from payments for drugs to develop with Community Care of North Carolina (CCNC) a program for Medicaid and Health Choice recipients based on the ChecKmeds NC program. The program shall include the following:

  1. At least 50 community pharmacies by June 30, 2015.
  2. At least 500 community pharmacies in at least 70 counties by June 30, 2016.
  3. A per member per month (PMPM) payment for care coordination and population health services provided in conjunction with CCNC.
  4. A pay for performance payment.”

Session Law 2013-360.

According to the Centers for Medicare and Medicaid Services (CMS), “[a] shared savings methodology typically comprises four important concepts: a total cost of care benchmark, provider payment incentives to improve care quality and lower total cost of care, a performance period that tests the changes, and an evaluation to determine the program cost savings during the performance period compared to the benchmark cost of care and to identify the improvements in care quality.”

Employers chop salaries all the time in order to maximize profit.  Back in 2011, Sony proposed 11% salary cuts for executives due to such a terrible fiscal year.  But guess what is different between Sony’s 11% cut and Medicaid’s 3%?  I know…I know…a lot….but what difference am I thinking about?

Sony sought shareholder approval.

I guess you can make the argument that the General Assembly sought voter approval because our citizens voted for all the legislators in the General Assembly.  But I think that argument is weak.  No legislator ran his or her campaign on: “Vote for Me! If you are a Medicaid provider, I plan to decrease your salary by 3%!”

Better yet, with the Sony salary cut, executives had the option to seek employment elsewhere.  What is a Medicaid provider’s option? Move?  Not take Medicaid? (Sadly, I see this as a more viable option).

On a legal note, I question the constitutionality of our new shared savings plan.  Wouldn’t the decrease of 3% in Medicaid reimbursements be considered an unlawful taking without due process.  In essence, could one argue that the decrease of 3% in Medicaid reimbursements is just a way for the State to decrease Medicaid reimbursements without going through the proper lawful process?

Then again, maybe we won’t need to worry about the 3% decrease at all…given NCTracks’ track record, it is plausible that NCTracks will not be able to adjust the Medicaid reimbursements by 3%.

Medical providers considering lawsuits over issues with NCTracks

Medical providers considering lawsuits over issues with NCTracks.

NCTracks Resulting in “Disparate Impact?” Good Thing “Small Providers” Are Not a “Suspect Class!”

Imagine two health care providers.

Provider “Anthony Loves” is a home health agency with approximately 15-20 staff and Medicaid accounts for 100% of its business.  Provider “Huma Health” is a large corporation at which 10 medical professionals provide primary care to pediatric patients.  Medicaid constitutes 20% of Huma’s payments; private insurance companies make-up 80% of the income. Which provider, Anthony Loves or Huma Health, will be most adversely affected if NCTracks suffers a “glitch” and Medicaid reimbursements are not paid timely? Answer? Anthony Loves. In fact, most providers similar to Anthony Loves have approximately 2 pay periods, or, maybe even 1, that can pass without Medicaid reimbursements before the providers are forced to close their doors.

Discrimination against small providers? Probably not. Disparate impact? Maybe. Just plain, old unfair? Absolutely.

Since July 1, 2013, when NCTracks went live, the Department of Health and Human Services (DHHS) has touted the beauty, the efficiency, and the overall success of NCTracks in  the media. DHHS is sugar-coating a state-wide, disastrous pill for small providers to swallow.

Is NCTracks successful in a discriminatory manner?…As in, are small providers suffering the errors of NCTracks disproportionately than large providers, i.e., hospitals, large institutions. Will NCTracks force small providers to close?

Is the NCTracks’ Medicaid reimbursement system resulting in a “disparate impact” on small providers?

I know, I know, I know…”disparate impact” is used in constitution law when describing a discriminatory situation in which a minority group or protected class is adversely affected. And…I understand that a legal “disparate impact” argument does not apply to small providers, as, unlike women or minorities, “small providers” do not constitute a “suspect class.”  And I understand that NCTracks is not a “law” per se (normally in a case for “disparate impact,” you have to show that a statute or law is causing the “disparate impact”).  So, folks, please understand that I am using “disparate impact” loosely for the purposes of this blog and not according to the legal definition of “disparate impact.” (Professor Kobach would be disappointed).

Example of REAL “disparate impact”:

Back in 1974, New Bedford had a law that stated that a person applying to become a police officer must be 5 feet 6 inches or taller.  Obviously, the 5’6″ requirement disproportionately adversely affected women because, generally, women tend to be shorter than men. Obviously, I would never have been able to be a police officer in New Bedford in 1974, as I am 5’4″.

In a landmark decision, Costa v. Markey, the Supreme Court stated that the law (requiring police officers to be 5’6″ or taller) was not discriminatory “on its face,” but, rather, the impact of the law adversely affected a suspect class (women), thereby rendering the law unconstitutional due to the “disparate impact.”

Similarly (and not so similarly), NCTracks, “on its face” appears to be non-discriminatory.  All Medicaid providers who render Medicaid services submit claims for reimbursements through NCTracks and will get paid. Period. No discrimination. But, what if, the reimbursements paid out from NCTracks are paid-out to large providers in a disproportionate amount as compared to small providers? What if small providers are suffering a “disparate impact?”

So far, when asked about any potential glitches with NCTracks (and by glitches, I mean, providers are not receiving Medicaid reimbursements), DHHS says, “Sure, there are glitches; sure there are bumps; we expected bumps.  But, overall, NCTracks is the bomb-diggity.” (DHHS does not use the term “bomb-diggity,” but you get the point). Again, sugar-coating.

According to DHHS, NCTracks has processed nearly 9.3 million claims in the last checkwrite, and as of the last checkwrite, the system has been on or ahead of schedule with checkwrite payments, paying out more than $350 million to health care professionals.  That’s a lot of payouts. If DHHS is correct and NCTracks has paid out over $350 million in Medicaid reimbursements, then why have I been receiving so many phone calls and emails from Medicaid providers who have received ZERO Medicaid reimbursements since June 20, 2013? Which leads me to question…of those 9.5 million claims, were those just the successful claims? How many total claims have been attempted in all?

When asked for the breakdown of Medicaid reimbursements actually paid, DHHS sent:

Revised NCTracks

The pharmacies are getting paid.  But what services are included in “Medical?” Everything else? What is the breakdown of “medical” payments? Does “medical” include hospitals, dentists, primary care physicians and every single medical services?

I do not know what medical services are bunched together to constitute the $351,367,812.52 medical payout. But from comments I have received regarding lack of Medicaid reimbursements due to NCTracks, it appears that small providers are suffering. It appears that small providers are suffering a disparate impact.

Below are some comments by NC providers who accept Medicaid and have not been paid by NCTracks:

Our peds practice is a month with no pay, and we are 85% Medicaid. Noone at NC tracks seems to be able to tell us (despite multiple 60 to 80 hours phone waits) why we haven’t gotten paid and when we will get paid….Because we care for very complex kids (we are a NCQA Level III certified medical home & get frequent referrals from Brenners Childrens Hospital) and have such a high Medicaid population, I haven’t payed myself a salary in 6 years, and my husband and I have put our savings into the practice, but now I can’t pay my employees either.

I have not been paid yet either and it is shameful. If this is some nefarious plot to thin out the number of providers I think it is working. We have been on the phone for HOURS and still no resolution. They blame our third party processor and our third party processor blames them. We are stuck in the middle.”

Small therapy and Infant Toddler(SLP, OT PT, CBRS) providers are being hit hard. Another long work week has come to an end with no hope of reimbursement in sight. We have to continue to serve our families indefinitely or run the risk of losing our entire caseloads, which would cause us to have no choice but to shut the doors. We have been a small, but successful CBRS provider agency for 9 years (ironically, July 1 was our 9 year anniversary), but NC Tracks may just do us in. We are being told it is our EFT info that is keeping us from getting reimbursement. We submitted our EFT info on 5/17 but it did not show up in the NCT system until 7/10. We could not fix or check on anything ourselves because the Status and Management Change option in the Provider Portal was not functioning for us from 7/1 until 7/16! On 7/10, a rep verified and re-submitted the EFT info. It’s 9 days later and still nothing has shown up at our bank. The supervisor I talked to today sounded so proud when he announced, ” I have found out what your problem is! You are still in pre-note because your bank has not responded. I had to explain again that it is a system error on their part. It looks like it has been sent out, but it never shows up at our bank. This is apparently a common problem and there has to be a fix for my agency and quite a few of my colleagues before we all just go under.”

This is absolutely accurate and correct. This is happening to our 2 practices, one in Charlotte and our new office in Huntersville. This is the deception that Doctor and I as the Office Manager are experiencing. Very sadly to say we have had the run around for the past 3 weeks as of when we will get payments in so we can continue operations and make payroll. Today the owner was faced with withdrawing monies from his 401K to make the payroll for the staff since our practices are 65% Medicaid based. We love our job and servicing the community; however we won’t be able to survive if we don’t receive payment for our services. At this point we have contacted the senators and we areliving our way up to see if we are heard. I am appalled at how we are still awaiting on payments from claims of 06-20-2013, when NCTRACKS was supposed to take over on July 1st. I would like to get Action 9 involved and see what else can be done to expedite these payments to all the providers. If so, why did they even switch the system. What a disappointment.

We’re a mental health agency. We should have been paid today for the first time since the 20th but of course we weren’t. No RA posted either, even though we received an RA for last week’s claims. Sad to say but I wasn’t expecting to get paid because I have no faith in DHHS’ ability to implement any program. They are the epitome of governmental incompetence.

I am responding to this information from a pediatric dental practice, Coastal Pediatric Dentistry, in New Bern, NC. We are dealing with a nightmare situation with NCTracks so far. Our taxonomy number has defaulted to another number which is not dental so I have been told that the reason all of our claims have denied is because of the wrong taxonomy number. The person that I spoke with at NCTracks said she couldn’t access our provider profile to tell me how to fix the problem. So here we sit with hundreds of Medicaid claims denied. How long can a practice continue like this?

I am a dentist in Sanford NC and I have not been paid by Medicaid since June 27. They stopped accepting our claims June 20th.

This is an absolute horror story. I cannot find anyone who has any idea how to bill for the dually eligible that require a Medicare override. How to match the list of taxonomy codes which I have never seen before to my one NPI and bill properly for regular Medicaid recipients and CAP waiver supplies. We have not been able to bill anything successfully.

Well..I stayed on the phone 57 mins this morning to only be told the complete error description for my denied claim. I asked the help desk rep, can you please step through the process of filing the claim for PCS. I was then given information to the NC DMA site (outdated info – they still have the old HP site info up), upcoming webinars (live so to speak) and so forth. But, I’ve have yet to see any “concrete” examples of claim processes for various group settings. They’ve all been so generic, it’s not helpful at all. I went to a class in Greensboro, NC 2-months ago. The trainer didn’t have specifics, just generalities. I’ve been in IT over 18 yrs, specifically in Application/Development and I knew this rollout was gonna be bad. I’ve called Vendors and they hadn’t figured it out yet. I gave the help desk person this AM some ideas…She actually took notes! That was my highlight of claim processing with NC Tracks today. By the way, 2 days of trying to submit a claim. Unsuccessful! Trial & Error right now!

Why have these providers been wholly UN-successful when NCTracks has supposedly paid out $350 million since July 1, 2013? Why has DHHS neglected to bring this issue to light?

My guess? Small providers are not receiving Medicaid reimbursements, whereas the big providers are being paid.

If Duke University Medical Center were not receiving Medicaid reimbursements, we would have heard some very loud complaints. Same for Rex and UNC. Since we have NOT heard from hospitals regarding nonpayment of Medicaid reimbursements, I am inclined to believe the hospitals ARE getting reimbursements.  Maybe even $350 million worth.

The providers quoted above are not large institutions. They are small/medium-sized Medicaid providers. Not being paid for 5-7 weeks is devastating for the smaller providers.

Which leads me back to my original question….Is NCTracks creating a “disparate impact” on small providers?

I believe yes.

So what is the solution? A lawsuit?

In the last few days, I have been contacted by numerous dentists, home health care providers, and behavioral health care providers, who have not been reimbursed for services rendered and who would like to sue Computer Sciences Corp. (CSC), the company that created NCTracks.  CSC is being paid $484 million for developing the system and running it through 2020.  The problem with all lawsuits against large entities, such as CSC, is the price tag. A lawsuit is so expensive that it impedes providers from being able to bring a lawsuit. 

Maybe the NC Dental Society should think about pitching in and helping its members…

Or a behavioral health care society….

Or a medical society….

Regardless, providers need to know that other providers are also suffering. And if any provider IS receiving Medicaid reimbursements, please share what, if anything, you did to get NCTracks to work.