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NC Medicaid Providers, Are You Required to Seek an Informal Appeal Prior to Filing a Contested Case at OAH?

Recently, numerous clients have come to me asking whether they have the right to appeal straight to the Office of Administrative Appeals or whether they have to attend informal appeals first, whether the informal appeal is within a managed care organization (MCO), the Division of Medical Assistance (DMA) or any other entity contracted by DMA.

The answer is: No, you are not required to go through the informal review prior to filing a contested case at OAH, but, in some cases, the informal review is beneficial.

Let me explain.

N.C. Gen. Stat. 150B-22-37 (Article 3) applies to:

“[A]ny dispute between an agency and another person that involves the person’s rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined. If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person’s rights, duties, or privileges, at which time the dispute becomes a “contested case.”

N.C. Gen. Stat. 150B-22.

“Any dispute between an agency and another person”…Obviously DMA is a state agency, but is Public Consulting Group (PCG)?  Is the Carolinas Center for Medical Excellence (CCME)? East Carolina Behavioral Health?  HMS?

What if you disagree with a prepayment review result that CCME conducted?  DMA had nothing to do with the actual prepayment review.  Can you bring a contested case at OAH against CCME?

Yes.  But include DHHS, DMA as a named Respondent.  If you include the state agency that contracted with the entity, then jurisdiction is proper at OAH.  The argument being that the actions of a contracted entity is imputed to the principle (DMA).

“Should be settled through informal procedures…”  Notice it states “should,” not “must.”  Time and time again when a provider skips the informal review within the entity (for example, let’s say that MeckLINK terminates Provider Jane’s Medicaid contract and files a grievance with OAH instead of through MeckLINK first) the counsel for the entity (MeckLINK in this example) argues that OAH does not have jurisdiction because Jane failed to exhaust her administrative remedies.  As in, Jane should have appealed through MeckLINK first.

In my opinion, appealing to the very entity that is causing the grievance is futile.  The decision was made.  The entity is not going to rule against itself. 

Plus, there is no requirement for any petitioner to exhaust informal appeals prior to appealing to OAH.  When you receive a Tentative Notice of Overpayment from PCG, you can go to an informal review or you can appeal in OAH. 

The “failing to exhaust administrative remedies” argument is being misapplied by the entities.  In order to file judicial review in Superior Court or a declaratory judgment action in Superior Court, you must exhaust all administrative remedies prior to seeking relief in Superior Court.  But the requirement to exhaust administrative remedies is not applicable to filing at OAH.

The upshot is that any person aggrieved may bring a contested case in OAH without attending an informal appeal first.

However, there are some occasions that, in my opinion, the informal appeal is useful.  Such as an overpayment found by PCG.  If you receive a Tentative Notice of Overpayment by PCG, the informal reconsideration review at DMA can be helpful for a number of reasons.

1.  It forces you to review the audited documents with a fine tooth comb prior to getting in front of a judge.

2. It allows you to find all PCG’s mistakes, and there will be mistakes, and bring those mistakes to the attention of the auditor.

3.  It gives you a chance to decrease the alleged amount owed before a contested case.

Keeping those positive aspects in mind, most likely, the reconsideration review will NOT resolve the case.  Although it has happened occasionally, more times than not, you will not agree with the reduced amount the DHHS hearing officer decides.  The alleged overpayment will still be extrapolated. The alleged overpayment will still be ridiculous.

Other than an overpayment, I have found very little use for the informal appeals.

DHHS’ Robotic Certification of MCOs…So Stepford-ish!

Senate Bill 208, Session Law 2013-85, requires the Secretary of the Department of Health and Human Services (DHHS) to conduct certifications to ensure the effectiveness of the managed care organizations (MCOs), and the first certification was to be before August 1, 2013.  N.C. Gen. Stat. 122C-124.2 was added as a new section by Session Law 2013-85 and states:

“In order to ensure accurate evaluation of administrative, operational, actuarial and financial components, and overall performance of the LME/MCO, the Secretary’s certification shall be based upon an internal and external assessment made by an independent external review agency in accordance with applicable federal and State laws and regulations.”

In order to comply with the statute, Secretary Wos conducted the first certification and published the findings July 31, 2013.  Well, actually Carol Steckel signed the certification and sent it to Sec. Wos (technically Wos did not conduct the certification, but she certified the content).

Steckel’s certification states that “DMA is attesting that all ten [MCOs] are appropriate for certification.”

Strong language!

Attest means to provide or service as clear evidence of.  See Google.  Clear evidence?  That the MCOs are compliant?

One of the areas that was certified was that the MCOs are timely paying providers, that the MCOs are accurately processing claims, and that the MCOs are financially accurate (whatever that means).

Here is the chart depicting those results:

Compliance chart2

Wow.  Who would have guessed that East Carolina Behavioral Healthcare (ECBH) is 100% compliant as to timely payments to providers, 100% compliant as to accuracy of claim processing, and 100% compliant as to financial accuracy.  ONE HUNDRED PERCENT!! As in, zero noncompliance!!

I mean…Wow! Wow! Wow! Wow! Wow!

Have you ever read “The Stepford Wives?” The book was published in 1972 by Ira Levine. 

Basically, the main character, Joanna Eberhart and her husband move to Stepford, Connecticut (a fictional place).  Upon arrival, Joanna and spouse (I can’t remember his name, so we will call him Ed) notice that all the woman are gorgeous, the homes are immaculate, and the woman are all perfectly submissive to their husbands (how boring would that be??). As time passes, Joanna becomes suspicious of the zombie-like actions of all the wives.

She and her friend Bobbie (until Bobbie turns zombie-like) research the past of the Stepford citizens and discover that most of the wives were past, successful business women and feminists, yet become zombie-like.  At one point, they even write to the EPA inquiring as to possible contamination in Stepford.

After Bobbie turns zombie-like, Joanna fears that the women are changed into robots.  She decides to flee Stepford, but is caught and is changed into a robot.  The books concludes with Joanna happily and submissively walking the grocery store with a large smile and robotic movements, and another wife moving into Stepford.

That book coined the word “Stepford” to mean someone acting as a robot, submissive, or blissfully following orders.

I am not saying that the DMA certification was conducted as a Stepword wife…I am merely explaining that I was reminded of “The Stepford Wives” when I read the certification.  Maybe there is no analogy to be made…you decide.

Upon quick review of the certification, a number of questions arise in my mind.  Such as…didn’t anyone proofread this??? Under each graph, it states “Data is based on a statistical sample of Medicaid claims processed between February and May of 2013 for each LME-MCO.”  Data is???

Hello!…It is data ARE, not data is!!  Data are; datum is.

Besides the obvious grammar issue, I am concerned with the actual substance of the certification. 

Nothing is defined. (Not surprising for an entity that doesn’t know data are plural).  Except “compliant” is defined on the last page as “A finding of  “compliant” means that HMS found that the LME-MCO was compliant with the requirements set forth in SB 208.”  That is like saying, “Beautiful is hereby defined as whatever I say is beautiful.”  That is not a definition.

And HMS? HMS, as in, the company North Carolina hired as a Medicaid recovery audit contractor (RAC)?  I do not know if HMS the RAC and HMS the credentialing company is the same company…but the names sure are similar.

Speaking of RACs, going back to the basis of the data…”a statistical sample?” (Which is not defined?)  What is a statistical sample?  Is this a statistical sample like Public Consulting Group’s (PCG) in extrapolation audits?  From where does the sample come?

Looking at the timeliness of provider payments, the lowest percentage is CoastalCare.  At 93.06%.  But what does that mean?  That CoastalCare takes longer than 30 days to pay providers in 6.94% of cases?  And what is noncompliance?  80%? 20%?  Because where I went to school, a 93% is a ‘B.’ Yet 93%, here, is “compliant.”  Does “compliant” mean not failing?

What is “claims processing accuracy?”  Does that mean that ECBH was 100% correct in processing (or not processing) claims based on medical necessity (or failure to meet medical necessity)?  or, merely, that the process by which ECBH processes claims (regardless of whether the process abides by clinical policy), does not deviate; therefore ECBH is 100% compliant?

How does one determine 100% compliance?  Does this certification mean that between February and May 2013, Sandhills paid 100% providers timely.  That for 4 months, Sandhills was not late for even one provider?  Because Sandhills had 100% in relation to timely provider payments.  (Personally, I would be extremely hesitant to attest for any entity achieving 100% compliance.  How easy would that be to disprove?? A journalist finds one mistake and the certification loses all credibility).

The next chart demonstrates the MCO’s solvency.

Solvency

I have to admit…this chart makes very little sense to me.  The only information we get is that greater than 1.0 equals compliance.  If you ask me, being greater than 1 seems like a very low bar.

But, if greater than 1 equals compliance, then, applying Logic 101, the higher the number the more solvent.  I could be wrong, but this makes sense to me.

Using that logic, in February MeckLINK was N/A (not “live” yet).  March: 1.32.  April: 1.54. May: 1.80.  Tell if I’m wrong, folks, but it appears to me that MeckLINK, according to HMS and unknown data, that MeckLINK is becoming more solvent as the months pass.

And this is the same MCO that WFAE cited was using accounting tricks to remain in the black????

And the same MCO that, come March 1, 2014, must be acquired by another MCO?  And then there were 9

Under the chart demonstrating the “Solvency Review,” it states, “Data is (sic) base don financial information…”  Duh!! I thought we’d review employee personnel records to determine solvency!! (Although…that could be helpful because we could see employee salaries…I’m just saying…).

What the certification does not say is financial information from whom?  The MCOs? 

Secretary Wos: “Hey, Alliance, are you solvent?”
Alliance: “Yes, Secretary.”
Secretary Wos:  “Oh, thank goodness! I wouldn’t know what to do if you were not!!”

Going back to the finding of compliance means HMS determined compliance…Does that mean that HMS compiled all the data?  What about the intradepartmental monitoring team?  Does the intradepartmental monitoring team just authorize whatever HMS says it finds?  Almost…Stepford-like.

The letter from Steckel showing DMA’s attestation of all 10 MCOs being appropriate for certification says just that…DMA is attesting that all 10 MCOs are appropriate for certification.  No analysis.  No individual thinking.  Almost…Stepford-like.

Then the letter from Sec. Wos to Louis Pate, Nelson Dollar, and Justin Burr (legislatures) regurgitates Steckel’s letter.  Except Wos’ letter says “I hereby certify that the following LME-MCOs are in compliance with the requirements of NC Gen. Stat 122C-124.2(b).”

Again, no analysis.  No independent thinking.  Steckel’s letter is dated July 31, 2013; Sec. Wos’ letter is dated July 31, 2013.  Wos did not even take ONE DAY to verify Steckel’s letter.

Zombie-like.

Stepford-like.

What good is a statute requiring DHHS to certify the MCOs every 6 months if each certification is attested to by a Stepford??

How Managed Care Organizations Will Be the Downfall of Mental Health in NC

Lately, mental health has been a topic of great interest to many people.  Tragedies like the Navy Yard shooting bring the mental health issue even more to the forefront.  Remember, the shooter had complained about auditory hallucinations prior to the horrible event.

Yet North Carolina, like many other states, has implemented the managed care system for Medicaid behavioral health.  These managed care organizations (MCOs) will be the downfall of the mental health care system.

That’s a pretty strong statement, huh? How could these MCOs be the downfall of mental health?

Let me explain…

Currently, in NC we have hundreds of thousands of mental health care providers across the state.  Most of the behavioral health care providers are not huge companies.  Many thousands of these providers are small businesses with under 10 staff, although there are certainly some that staff numerous psychiatrists and hundreds of employees.  Regardless, in the aggregate, these behavioral health care provider staff millions of North Carolinians.  (I don’t have the data on the numbers, so these numbers are estimates).

Not only do we rely on these behavioral health care providers to staff millions of North Carolinians, but these providers also service our 1.5 million Medicaid recipients with any mental health care issue.

I doubt I would receive any opposition to the statement that these behavioral health care providers across NC are assets to our community.  They provide employment for some and mental health services for others.  Without our behavioral health care providers, our Medicaid recipients would (a) not receive medically necessary treatment; and (b) most likely, be hospitalized, incarcerated, or simply non-productive citizens. Not to mention the number of people who would become unemployed if the behavioral health care providers went our of business.

Many studies have proven that, in fact, many mentally ill not receiving care end up in prisons or the emergency room (ER).  For example,  in one study, “More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States,” the authors found that:

Using 2004–2005 data not previously published, we found that in the United States there are now more than three times more seriously mentally ill persons in jails and prisons than in hospitals. Looked at by individual states, in North Dakota there are approximately an equal number of mentally ill persons in jails and prisons compared to hospitals. By contrast, Arizona and Nevada have almost ten times more mentally ill persons in jails and prisons than in hospitals. It is thus fact, not hyperbole, that America’s jails and prisons have become our new mental hospitals.

The way to combat the fact that many mentally ill become hospitalized or jailed is to have enough behavioral health care providers to service all the people in-need and to allow people easy access to the providers at all times.  It only makes sense. If we have people needing mental health care services, we need enough providers to service them.  This is Logic 101, people.

Well, when we switched over the managed care system for behavioral health, at first, we didn’t see a huge impact.  Yes, we missed ValueOptions.  Yes, we hated the process of provider credentialing and obtaining additional contracts with the new MCOs (I mean, good gracious, we already had the contract with the Department of Health and Human Services (DHHS).  How many contracts would we need?)  But, at first, the MCOs were not crippling.  Killing a ton of trees? Yes.  But crippling? No.

Our government leaders performed two (2) fatal flaws when implementing the MCOs.  (1) The MCOs were allowed to conduct a closed network after a short period of time; and (2) the MCOs were not statewide.  Well, there were probably many more flaws, but these were the most fatal.

CLOSED NETWORK

The MCOs are allowed via statute to contract with the number of providers that it deems necessary for its catchment area.  If, for example, MeckLINK, the MCO in Meckeleburg county, decides that 1 provider can service all the mental health needs of Medicaid recipients in Mecklenburg county, then MeckLINK may contract with only one provider.

What happens to the rest of the behavioral health providers in Mecklenburg county?  Well, those providers do not have contracts with MeckLINK to provide services within Mecklenburg county.  Never mind that the provider had signed a 5-year lease in downtown Charlotte.  No other provider except for the one that MeckLINK contracts with can provide services in Mecklenburg county.

So you say, so what? The providers can provide services in 99 other counties.

But, what if a provider has been in business for 15 years.  What if the mentally ill that the provider services are severely mentally ill?  What if that provider was the only person that some Medicaid recipients trusted?  What if those Medicaid recipients refuse to switch providers?  Who suffers?  Because, despite any other contention, behavioral health care providers are not fungible.

Or…change it from MeckLINK to Smokey Mountain Center (SMC), which starting next month will have a 23 county catchment area.  23 counties!!

What happens when SMC determines that it will only contract with 2 providers per county?

Are the thousands of behavioral health care providers who reside and service those 23 counties that can no longer provider services all to move out of SMC’s catchment area in order to continue their careers?

No, realistically, if SMC decides that it will only contract with 2 providers per county, all other providers within SMC’s catchment area go out of business.  All employees of those thousands of providers are  unemployed.  Unemployment sky-rockets and the need for Medicaid and food stamps sky-rocket.

NOT STATEWIDE

The MCOs in NC are not statewide.  What does that mean?  That means that every MCO in NC has its own catchment area…or jurisdiction.  If you are a provider in Wake county, you must have a contract with Alliance Behavioral Health (Alliance).  If you are a provider in Pitt county, you must have a contract with East Carolina Behavioral Health (ECBH).

Other states have implemented MCOs differently.  Such as New Mexico…not that the MCOs are working great in NM, but I do agree with this one facet of NM MCOs.  Other states have MCOs that are statewide.  Each MCO has providers across the state, and…get this…the Medicaid recipients get to choose with which MCO they want to deal.

Think about it…Medicaid recipients having a choice among MCOs depending on the providers with which the MCO contracts.

But not in NC.

In NC, Medicaid recipient Alice may choose to go to Dr. Jane in Charlotte.  In fact, Alice has gone to Dr. Jane for years.  Alice suffers schizophrenia with visual hallucinations.  Dr. Jane has known Alice for so long that Dr. Jane can tell when Alice is going through a more troubling than normal bout.  But last week MeckLINK determined that it would not contract with Dr. Jane and demanded that Dr. Jane transition all clients.

So, Dr. Jane transitions Alice to Dr. Kelly and closes up her shop.  Dr. Jane and her 16 employees file for unemployment, food stamps and subsidized housing…oh, and Medicaid.

Alice decides she hates Dr. Kelly and is convinced that Dr. Kelly had devised a plot to rid her of Dr. Jane.  Remember, people who suffer from mental illnesses don’t always think rationally…

So Alice never goes to any appointments with Dr. Kelly.  Instead, she begins to use heroin again.

Sound far off? Crazy? Unrealistic?

I beg to differ.

The way in which the MCOs are set-up in NC allows the MCOs to unilaterally decide to contract with one provider, but not the other.  Or even scarier, just 1 provider.  The MCO set-up in NC allows the MCOs to determine that certain providers cannot service the population within its catchment area.

A GLIMPSE INTO THE FUTURE

If our MCOs continue to terminate Medicaid provider contracts at the rate that they are currently, thousands and thousands of providers will soon be out of business.  Hundreds of thousands of citizens will be unemployed (the staff of the provider companies).  Unemployment will increase.  The need for Medicaid and food stamps will increase.  The very few behavioral health care providers that are still allowed to provide services to Medicaid recipients will be overwhelmed, unable to meet the needs of every single recipient.  Medicaid recipients will not receive individual, unique mental health care; Medicaid recipients will be overlooked (whether they don’t go to appointments, become hospitalized or incarcerated).

And something very tragic will happen here in NC.  And not on a Navy Yard.

Hence the downfall of mental health in NC.

MeckLINK: Parting Is Such Sweet Sorrow!…or…And Then There Were Nine…And Counting!

“Parting is such sweet sorrow, That I shall say good night till it be morrow.” Anyone know who said that famous line?  Juliet said it to Romeo (William Shakespeare) in Act II, Scene 2 of Romeo and Juliet.  Much different from Act 5, Scene 3 when Romeo commits suicide by poison when he believes his beloved Juliet is dead.

“Here’s to my love! (drinks the poison) O true apothecary, Thy drugs are quick. Thus with a kiss I die.”

Are we soon to part with MeckLINK Behavioral Health (“MeckLINK”)?

As of now, MeckLINK is one of 11 managed care organizations (MCOs) managing behavioral health care for Medicaid recipients in North Carolina.  We will say good-bye to Western Highlands September 30, 2013, so starting October, we will have 10 MCOs.

Is MeckLINK the next doomed MCO?  The next MCO to go poof!

According to the Charlotte Observer, Phil Endress, the CEO of MeckLINK, who was under fire a couple of weeks ago before the Mecklenburg county commissioners, has resigned, effective September 30, 2013.  Coincidental that Endress is resigning the day that Western Highlands is scheduled to disappear? Poof!

Mr. Endress appeared in North Carolina in August 2012 to run MeckLINK.  Since August 2012 (basically 1 year, give or take) Endress hired over 200 employees to run MeckLINK. (Talk about administrative burden).

So what happens to all the 200 employees hired by Endress when MeckLINK goes poof?  Who knows.  But, at least, Endress has a job.  He is moving to Jersey City, New Jersey, to become a director for a private mental health care company.  The 200 employees Endress hired? Well, he is not taking them with him.

What will become of mental health in Mecklenburg county?

Well, I know for many health care providers in Mecklenburg county parting will  NOT such sweet sorrow.  It will just be sweet. Recently, MeckLINK has terminated multiple provider agencies from its network (in our opinion without merit) and denied services for Medicaid recipients (in our opinion that are medically necessary).  But what will happen to Mecklenburg county Medicaid providers and recipients if MeckLINK goes poof?

Rumor has it that either Smokey Mountain Center or Alliance Behavioral Health will take over.

If Smokey takes over MeckLINK, Smokey will be, by far the largest MCO in North Carolina, geographically.   Smokey already covers:Serving individuals with mental health, developmental disability and substance abuse issues in Alexander, Alleghany, Ashe, Avery, Caldwell, Cherokee, Clay, Graham, Haywood, Jackson, Macon, McDowell, Swain, Watauga and Wilkes Counties

Add the 8 counties that Western Highlands is handing over to Smokey Sept. 30th and Mecklenburg county and Smokey would manage 24  of the 100 counties in North Carolina.  Whew! That’s a large jurisdiction.

If, on the other hand, Alliance takes over MeckLINK, then Alliance will not be the largest MCO in area, but, perhaps, the most Medicaid-funded and largest as to population-served.

Alliance currently manages Wake, Durham, Johnston and Cumberland counties.  Add Mecklenburg county and Alliance is in control of the most populated cities in North Carolina: Raleigh, Durham, Charlotte, Smithfield (ok, Smithfield is not that big, but it has outlets!), Fayetteville, Apex, Garner, Clayton…the most populous cities and towns in NC.

We started with 11 MCOs. We are down to 9.  The song “Another One Bites the Dust,” comes to mind. [Bum, bum, bum].

Remember, McCrory seems to want to run the number down to 3.

6 more to bite the dust?

“The McCrory administration envisions three or four competing private managed care organizations would deliver Medicaid services, replacing the monopolistic Community Care of North Carolina model now in place”

Parting is such sweet sorrow.

Thy drugs are quick. Thus I die with a kiss.

Are we all to end like Romeo?

Remember, we started the MCO system THIS YEAR. (Not counting Cardinal, which was the test-model prior to all MCOs  going live).  As in 9 months ago.  How scary is it that the whole MCO system (11 MCOs to manage behavioral health for Medicaid recipients) is unraveling to 9 within 9 months of inception.  Where will we be a year from now?

Maybe McCrory is right.  We will have 3-4 MCOs.

It’s like Darwin’s theory.  Survival of the fittest.

Western Highlands and MeckLINK were the weakest.  Who is next?  Eastpointe?  East Carolina Behavioral Health?  Time will tell.  And apparently time is fairly swift.  Like the poison drunk by Romeo, we may not have to wait long to see which MCOs survive and which MCOs fail.

If I were a betting man (which, obviously, I am not), I would go “all-in” on Alliance or Smokey.

The NC Medicaid Mental Health 10-Ring Circus: How 10 Mini-Jurisdictions Will Be the Downfall of Mental Health

Ever been to a three-ring circus? It is hard to stay focused on one ring because so much is happening in all 3 rings.  Are you supposed to watch the lion-tamer? The trapeze artists? Or the motorcycles jumping through rings of fire? You can’t watch all the acts.  You end up turning your head back and forth like a water sprinkler, only to catch some of each act.

Now imagine a 10-ring circus.

You wouldn’t be able to see much of any act.

This is similar to our NC Medicaid mental health system.  Instead of the one single state entity running our mental health system for Medicaid, we have 10 entities.  And all 10 entities have different rules.  Different Medicaid rates.  (Not to mention this is in violation of the federal “single state agency” mandate).

So what is the effect of these 10 mini-jurisdictions with different rules on our Medicaid mental health system?

Providers are going out of business.  Medicaid recipients are not receiving medically necessary, mental health services.

While the dancing bears, the fire-eaters and the acrobats are all performing, the ringmaster loses control.

Yesterday a psychologist-friend (We will call her Dr. Liz) told me that a mother called her asking whether Dr. Liz could see her child.  Dr. Liz soon learned that the mother and the child were on Medicaid.  Dr. Liz agreed to assess the child, but sadly informed the mother that it was highly unlikely that Dr. Liz could provide therapy for the child because the child is on Medicaid.

The mother burst into tears.  She explained that she lives in Fayetteville.  (Dr. Liz provides services in Durham).  One and a half hours away.  The mother said that Dr. Liz was the 30th provider she called.

29 providers either refused to see the child or had waiting lists months and months long because the child is on Medicaid.

The mother explained that the psychologist the child had routinely seen went out of business and that she did not understand why there were no psychologists within an hour and a half drive of her that were willing or able to provide services to her child.

She cried, “Why won’t anyone take Medicaid?”

When Dr. Liz told me this story, I was deeply saddened.  Yet this is reality.

Dr. Liz could not provide services to the child because, despite the fact that Dr. Liz has a Medicaid contract with the Department of Health and Human Services (DHHS) to provide Medicaid services throughout North Carolina, one managed care organization (MCO), Alliance Behavioral Health (Alliance), has decided that Dr. Liz cannot provide services in Durham County (where Dr. Liz is located).

We have 11 MCOs across North Carolina.

MCO map

Although after September 30, 2013, we will have 10 MCOs.  After Sept. 30, Western Highlands will be consolidated with Smoky Mountain, and Smoky Mountain will oversee management of mental health services for 23 western North Carolina counties.

So I will use 10 MCOs in this blog as there will be 10 within a few weeks.  BTW: There is also a lot of talk that MeckLINK will soon be the next MCO to disappear, but we shall see.

So how are these 10 MCO creating mini-jurisdictions? And why are these mini-jurisdictions causing the downfall of NC Medicaid mental health?

Let me explain:

Dr. Liz lives and works in Durham county.  Alliance is the MCO.  Alliance has refused to provide Dr. Liz with a Medicaid contract.  Therefore, Dr. Liz is not allowed to provide Medicaid services in Wake, Durham, Cumberland, or Johnston counties, because Alliance is in charge of those counties.

However, if Dr. Liz drives over to Fuquay Varina (Harnett county), Dr. Liz CAN provide Medicaid services there because Sandhills, the MCO for Harnett county, contracted with Dr. Liz.

Do you see the issue?

In essence, by Alliance not contracting with Dr. Liz, Alliance has taken Dr. Liz’s Medicaid contract with DHHS and torn a chunk out of it.  Dr. Liz’s contract with DHHS states she can provide services statewide.  But Alliance removed Dr. Liz’s ability to provide services in 4 counties, Wake, Cumberland, Durham and Johnston.  Since Dr. Liz could, theoretically, provide services in 96 other counties, Alliance removed a small chunk of Dr. Liz’s contract with DHHS…but still a chunk nonetheless.

If Dr. Liz ONLY provided services within Alliance’s catchment, then Alliance, by refusing to contract with Dr. Liz, would have either (1) put Dr. Liz out of business; (2) caused Dr. Liz to no longer accept Medicaid; or (3) forced Dr. Liz to relocate.

As all 10 MCOs are managing Medicaid differently, one provider could be allowed to provide Medicaid services in half the state, but not the other half.

While, theoretically, on paper, it may seem easy to tell Dr. Liz to just relocate her practice to Fuquay Varina, in reality, this is much more difficult.

Dr. Liz signed a 5-year lease for her building in Durham, and she is only in her first year (she just renewed it) of the lease.  She also has a daughter who attends school nearby her office.  Were Dr. Liz to move her office, she would no longer be able to transport her daughter to school.  Her clients cannot drive to Fuquay.  Most of her Medicaid clients lack transportation or the funds to pay for gas to drive 30 minutes further.  She has no clients in Fuquay.  She has no staff in Fuquay.  Her staff will not follow her to Fuquay; they all live in Durham. 

Dr. Liz does not have monetary ability to go lease another building in Fuquay.  But she is unable to perform her work where she is located now in Durham.

So what happens?

More times than not…the provider’s company goes bankrupt.  Which is why the mother cannot find services for her child in Fayetteville.  Many providers in Fayetteville and across NC have gone belly up.  The few remaining providers are either limiting the number of Medicaid patients they will accept or have long waiting lists.

Not only do the MCOs determine the providers with whom to contract differently, the MCOs even reimburse certain Medicaid services differently.

Assertive Community Treatment Team (ACTT) is a 24-hour service for the severely mentally ill.  All 10 MCOs must provide ACTT services, but the MCOs do not have to reimburse uniformly.

Therefore, if Dr. Liz were to provide ACTT services in the western part of the state, Dr. Liz may receive $295.32 per unit.  But if Dr. Liz provided the services in southern NC, she may have been reimbursed $323.98 per unit.

This Medicaid reimbursement rate changing depending on which MCO is paying would be like a Chatham county DMV charging $25 to renew your license, but a Mecklenburg county DMV charging $75.  It is a North Carolina state license!  The price to renew should be statewide.

Just like Medicaid should be uniform across the state. 

But, instead, here in NC, we have created 10 mini-jurisdictions.

In each of the 10 mini-jurisdictions, the MCO dictate the rules.  In each of the 10 MCOs, the rules are different.  Each MCO can choose to contract with a provider (or not) with zero regard as to the effect on the provider, the provider’s company, and the Medicaid recipients.  The MCOs can reimburse the same Medicaid services at different rates.

The dancing bears, the fire-eater, and the acrobats are all charging different entrance fees, depending on which entrance you entered.  (And we all know that a dancing bear should not be in charge of entrance fees!) 

The ringmaster is sleeping.

There is no uniformity in Medicaid mental health in NC. 

It is a 10-ring circus!

NC General Assembly: Hold Contracted Companies Accountable in NC Medicaid! (If You Do Not, Who Will?)

Our government is made of checks and balances.  The reason for having checks and balances is to create independent governing bodies with separate powers, thereby preventing any one branch from having more power over another.

The legislative branch (General Assembly), most importantly, passes bills (makes the laws) and has broad taxing and spending power.

The executive branch (Governor), most importantly, makes appointments, may veto bills, but those vetoes may be overridden, and executes the spending allowed by the legislature.

The judicial branch (court system), most importantly, interprets the laws passed by the legislature, exercises injunctions and judicial reviews.

How these checks and balances can play out in real life are endless.  But, without question, if the legislative branch fails to check the executive branch, even if the judicial branch is checking the executive branch, then the executive branch exceeds its power and the legislative branch is failing its intended job.

It has nothing to do with Republicans versus Democrats.  No one cares that the executive branch is conservative or liberal or whether the legislative branch is 60% Republicans or 70% Democrats.  It is a matter of the legislative branch doing its job.  The legislative branch’s job is to check and balance the executive and judicial branch.

Here, in North Carolina, it appears that the legislative branch is not checking the executive branch.  (While all our branches of government have their own shortcomings, I am concentrating on the legislative branch in today’s blog because, recently, I have seen other legislative branches step-up.  Now our state legislative branch needs to step-up.)  It certainly appears that our judicial branch is providing the checks and balances on the executive branch via the Office of Administrative Hearings (OAH).

But where is the legislative branch’s checks and balances? If our legislators do not demand accountability, who will? 

Me?

You?

Recently, I have seen two instances in which legislative branches checked and balanced the executive branch.  These two legislative branches stepped-up to the plate…

Last Tuesday (September 3, 2013), the New Mexico behavioral health subcommittee convened and demanded accountability from Public Consulting Group (PCG).  Coincidentally, last Tuesday, Mecklenburg county commissioners also held a meeting and demanded accountability from MeckLINK, the managed care organization (MCO) in Mecklenburg county, managing Medicaid behavioral health services. (Was it a full moon?)

To see my blog explaining the events in NM leading up to the NM subcommittee meeting, click here.

To see my blog explaining the events in Mecklenburg county leading to the commissioner’s meeting, see all posts on my blog.  Or if you don’t have time to read all posts in my blog over the past 9-10 months, click here.

So why hasn’t the NC General Assembly held a meeting to demand accountability from all MCOs, PCG, and the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA)? 

I do not know.

Because of our government’s system of checks and balances, the legislative branch has the power over the money, both the taxing and spending power.  So the legislative branch has the authority to have DHHS appear before the General Assembly or a subcommittee and demand accountability for the tax dollars spent…as to all DHHS’ contracted companies…and DHHS’ apparent lack of supervision over these contracted companies.

Other legislative entities have done this.

As I already said, last week, the New Mexico behavioral health subcommittee convened to hold HSD (NM’s DHHS) and PCG accountable.

NM legislature

As you can see, the NM subcommittee formed a “U”-shape.  At the table facing the subcommittee, sat:

(1) Larry Heyek, the HSD Deputy General Counsel (remember, HSD = North Carolina’s DMA), Brent Earnest, Deputy Secretary HSD (representing Secretary Sidonie Squier, who was unable to attend due to eye surgery), and Diana McWilliams, Chief Executive Officer, Interagency Behavioral Health Purchasing Collaborative; Director, Behavioral Health Services Division, HSD.

Then…

(2) Me…to be joined later by Thomas Aldrich, manager at PCG.

Then…

(3) William Boyd Kleefisch, F.A.C.H.E., Executive Director, HealthInsight New Mexico, Margaret A. White, R.N., B.S.N., M.S.H.A., Director, External Quality Review, HealthInsight New Mexico, and Greg Lújan, L.I.S.W., Project Manager, Behavioral Health, HealthInsight New Mexico.

The above-listed people all testified before the NM behavioral health subcommittee because the subcommittee demanded accountability from HSD, PCG and others due to the disastrous state of mental health in NM.

Why hasn’t the North Carolina legislature demanded the same accountability?

Similarly, September 3, 2013, the Mecklenburg county commissioners held a meeting and demanded accountability of MeckLINK. 

Mecklenburg county

Apparently, behavioral health care providers have been complaining to their county commissioners about MeckLINK denying medically necessary services and targeting certain providers.

See article.

So, when NM providers complained to their State legislators, the NM subcommittee for behavioral health held a meeting to investigate the source of these complaints.

When Mecklenburg county providers complained to their county commissioners, the County commissioners held a meeting to investigate the source of these complaints.

Have not enough providers complained about PCG and the actions of the MCOs to our North Carolina legislature?

I find that hard to believe, but, just in case, providers….CONTACT YOUR STATE SENATOR AND REPRESENTATIVE!

DEMAND ACCOUNTABILITY!!

Let our elected officials know that:

There is NOT statewide consistency with the MCOs. 

Where 1 MCO denies services, another will authorize.  Where 1 MCO terminates a Medicaid contract of a provider, another does not. Where 1 MCO finds a provider compliant, another does not.

The DMA Clinical Policies and Innovations Waiver are not being applied consistently across the state.  Because of these inconsistencies, the MCOs have created 11 Medicaid jurisdictions. Where is the single state entity?

The MCOs are terminating provider contracts in violation of federal law.

Federal Medicaid law dictates that a “single state entity” manage Medicaid.  In NC, that single state entity is DHHS, DMA.  Yes, DMA may contract with companies.  Yes, DMA may delegate some duties to contracted entities.  BUT, DMA cannot allow a contracted entity substitute its judgment for DMA’s judgment.  See K.C. v. Shipman.  See also my blog: NC Medicaid: One Head Chef in the Kitchen Is Enough!

If DHHS is allowing 11 different companies to decide (use its own judgment) as to whether a provider can provide Medicaid services, the MCOs are substituting their decision-making in place of DHHS.

Also, at times, the MCOs are terminating the providers based on erroneous audits from the Carolinas Center of Medical Excellence.  For more on that…click here.

The MCOs are denying Medicaid recipients medically necessary mental health services.

The MCOs are prepaid, risk-based models.  What does that mean? That the MCOs have monetary incentives to DENY services in lieu of cheaper services.  In an extreme case, one MCO has denied 100% of ACTT services (24-hour, 7/days/week mental health care) in lieu of weekly, one-hour sessions of therapy.  Really?  24-hour care…reduced to weekly therapy????  But authorizing weekly therapy instead of 24-hour care saves the MCO thousands, if not hundreds of thousands.

What happens to the Medicaid recipients denied medically necessary services?  Answer: Imprisonment and hospitalizations.  So, fret not, taxpayers, you are actually paying MORE in taxes when the MCOs deny medically necessary services.  The increase in tax expenditure just will not be funded by the MCO’s Medicaid money.

As an aside, the attorney for the MCO stated that the Medicaid recipients should be the ones to appeal these erroneous denials.  To which I say, “Ha!”  One denied recipient suffered auditory and visual hallucinations (birds, snakes and crocodiles attacking.)  Another attacked his mother with a knife after services were denied.  Another was evicted from her home and, subsequently, jailed.  Another believed Satan spoke to him, telling him to kill himself.  I ask, when should the Medicaid recipients have (a) gotten themselves to a computer; (b) googled the NC Office of Administrative Hearings (OAH); (c) found the form to appeal a Medicaid denial of services; (d) filled-out the legal reasons they disagree with the denial of services; (d) complied with OAH procedure and drafted a prehearing statement, conducted any necessary discovery, and created all legal arguments to demonstrate medical necessity; and (e) attended a hearing in front of a judge…before or after hospitalization?  Before or after the recipient has had his/her conversation with Satan?

PCG’s audits are NOT 95% accurate (not even close).

I’ve heard that PCG’s contract with DHHS places an obligation on PCG that its audits be 95% accurate.  One person questioned whether that was 95% accurate as to PCG must be able to recoup (defend upon appeal) 95% of the audit results.  Obviously, that is not the case, because the inverse is probably closer to true.  95% of PCG’s audits are overturned (obviously, this number is not accurate…I am making a point).  Another person wondered whether the 95% accuracy meant that if 1 PCG auditor comes up with a $1 million overpayment, and the next day another PCG auditor audits the same documentation, that the 2nd auditor would be within 95% accurate of the $1 million the 1st auditor deemed needed to be recouped.  If the latter is the case, I can see why PCG may have 95% accuracy.  If you teach all your staff how to audit a Medicaid provider and all staff are taught to audit incorrectly, then, no matter the staff member auditing, the audit will be incorrect…but consistent.

Regardless, for a multitude of reasons, I have found almost all PCG audits erroneous. 

Yet, these PCG audits are terrifying Medicaid providers, causing them to ramp up attorney fees to defend themselves, and, in some cases, putting providers out of business.  And, in all cases, increasing the provider’s administrative burden and decreasing the time a provider can allot to serving the Medicaid recipients.

Contact your state legislators!   Help our General Assembly provide the checks and balances needed!

Just to help out, here is a link to all NC State Senators’ telephone numbers.

Because, in the absence of the legislative branch properly checking and balancing the executive branch, the legislative branch loses power and the executive branch gains power.

Smoke and Mirrors: ECBH Increasing Medicaid Rates (But Decreasing the Amount of Services Authorized?)

I am always amazed at magicians.  David Copperfield, David Blaine…

I once saw David Copperfield live.  I was convinced prior to the show that I would be able to determine how he performed the illusions. I just KNEW that I would see the strings or the trapdoor. But I did not. I was thoroughly amazed. Despite the fact that I still know that magic is not real, I was still awe-struck and entertained.  Realistically, magic is just smoke and mirrors. But, dag  on, those smoke and mirrors do a fantastic job.  At times, while watching a magic show, I find myself actually believing in magic. That is the power of smoke and mirrors.

Smoke and mirrors do not only appear in magic.  Many politicians are expert wielders of smoke and mirrors.  So to are many salesmen. And, apparently, East Carolina Behavioral Health (ECBH).

An article was published on NC Health News’ website yesterday. “Medicaid LME Updates: Cumberland/Alliance to Merge, Good News from ECBH.” Article is good. Information is good. But the ECBH news, I find “smoky.”

Click here for the article by Taylor Sisk

According to the article, “ECBH will increase the rates for psychological testing by 10 percent, personal care services by 16 percent, peer support by 7 percent and facility-based crisis and detoxification services to cover the full cost of the service.”

On the surface, the increase in rates that ECBH is implementing sounds great, right? In my head, I thought, “Wow! ECBH is doing some great marketing. Providers will want to work with ECBH…”

The problem is that the “surface level” or rate increase “on its face” is never the whole story. (Which is why ECBH’s rate increase is such an amazing use of smoke and mirrors. Most people will never see past the smoke).

The MCOs are prepaid. If the MCOs’ do NOT contract with providers and NOT authorize services, profits rise. 

But would an MCO REALLY deny medically necessary services, theoretically, to INCREASE profit?? You can decide.

However, one of my clients hired me because ECBH denied 100% of continuing authorizations and new referrals for ACTT services in Pitt County.

ONE HUNDRED PERCENT!

What are ACTT services?

DMA Clinical Policy 8A defines ACTT services:

The Assertive Community Treatment Team [ACTT] is a service provided by an interdisciplinary team that ensures service availability 24 hours a day, 7 days per week and is prepared to carry out a full range of treatment functions wherever and whenever needed. A service beneficiary is referred to the Assertive Community Treatment Team service when it has been determined that his or her needs are so pervasive or unpredictable that they cannot be met effectively by any other combination of available community services. Typically this service should be targeted to the 10% of MHDDSA service beneficiaries who have serious and persistent mental illness or co-occurring disorders, dual and triply diagnosed and the most complex and expensive treatment needs.” 

ACTT services are reserved for the extremely mentally ill.  These are the people who need 24-hour services; recipients receiving ACTT services are people who must receive the ACTT services to function.  Yet, ECBH denied 100% of my client’s new referrals and continuing authorizations.  One such denial was a Medicaid recipient who had been arrested 6 times since April 2012.  After the ACTT denial, the Medicaid recipient was again incarcerated, which is where the recipient is now.  Another denial resulted in the Medicaid recipient being hospitalized for suicidal ideation.

For recipients already receiving ACTT services, ECBH has forced my client to “step-down” the recipients to outpatient behavioral therapy (“OBT”). Of the Medicaid recipients that ECBH has forced Petitioner to “step-down,” three recipients were immediately referred back to ACTT when the OBT providers stated that the recipients suffered too high acuity of mental health illness to manage in OBT setting.  Two recipients were incarnated after discharge; the jail employees are complaining of psychiatric problems that are difficult to manage. 

Back in May 2013, the local news channel in Greenville, North Carolina, aired “9 On Your Side Mental Health Town Hall exposes problems, brings you answers.”  The news channel coverage demonstrates the possibility of the widespread breath of ECBH denials, in general. Maybe ECBH’s denials of medically necessary services is not limited to my client’s personal situation.

Regardless of the breadth of ECBH’s denials of medically necessary services, back in May 2013, ECBH was getting some bad marketing from the local news. So what does ECBH do? Raise reimbursement rates.

If, in fact, ECBH is denying many medically necessary Medicaid services in order to raise profit, then isn’t ECBH’s rate increase just smoke and mirrors?

ECBH Questioned at Town Hall Meeting: Why Are You Denying So Many Services??

East Carolina Behavioral Health (ECBH), one of North Carolina’s 10 MCOs had to defend itself at a local Mental Health Town Hall Meeting in Greenville, NC.

Amy Brown, who works at Arc of North Carolina, which is a company-advocate for people suffering from mental illness and/or developmental disabilities, finally asked what so many providers and recipients have been asking for months:

WHY ARE SERVICES GETTING DENIED????

For the news video, click here.

“It appears that there is a growing trend of families being denied services,” Brown, who works at the Arc of North Carolina, told the panel.

Brown, like other families who have shared their story with 9 On Your Side, is frustrated with East Carolina Behavioral Health – the organization that manages local providers.

She says the processes ECBH requires to approve services for the mentally ill is long, tedious and ineffective.

“For those families that are willing to fight it out and go through the appeals process, it’s very frustrating, it’s very long,” Brown says.

ECBH, or any MCO, that denies medically necessary services, are denying Medicaid services for the most needy. 

But, believe me, this is NOT isolated to ECBH.  ECBH serves Beaufort, Bertie, Camden, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde, Jones, Martin, Northampton, Pamlico, Pasquotank, Perquimans, Pitt, Tyrrell & Washington counties.  But medically necessary services are being denied outside the above-mentioned counties. 

Not only are medically necessary services being denied, but quality, competent health care providers are being DENIED Medicaid contracts or the Medicaid contracts are being rescinded.

People, listen, if a health care provider resides in Beaufort county, NC, that health care provider, in order to provide mental health services to the Medicaid population must contract with ECBH in order to provide services.  There is no other option.  The provider cannot, for example, just contract with a different MCO, to provide mental health services within Beaufort county.  ECBH is  the only option in Beaufort county for a Medicaid contract in behavioral health.  So, if ECBH, arbitrarily decides that it does not want to contract with Provider X, for whatever reason, Provider X cannot provide mental health services to Medicaid recipients within Beaufort county and be reimbursed for services rendered. Period.

And this is happening. Providers, who have been providing mental health services to Medicaid recipients for, sometimes, years and years, and who have, some, hundreds of Medicaid recipients, are being denied a Medicaid contract with ECBH, and other MCOs, are not receiving the reimbursement for services rendered for themselves and their staff, and are being forced to close their doors or no longer accept Medicaid patients.

The MCOs, including ECBH, seem to be pushing mental health care providers away from Medicaid, resulting in Medicaid recipients not receiving desperately-needed mental health services.

And here I thought mental health is such an important topic…

It’s easy to proclaim that you care about providers and recipients and you want Medicaid recipients to receive quality health care, but it’s a whole other thing to actually determine if the WAY the system is IMPLEMENTED is broken.  Maybe it’s not the Medicaid system that is broken; maybe it is the implementation of the system.

George Bernard Shaw said, “People who say it cannot be done should not interrupt those who are doing it.”