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CMS Clarifying Medicare Overpayment Rules: The Bar Is Raised (Yet Again) for Health Care Providers

Have you ever watched athletes compete in the high jump? Each time an athlete is successful in pole vaulting over the bar, the bar gets raised…again…and again…until the athlete can no longer vault over the bar. Similarly, the Center for Medicare and Medicaid Services (CMS) continue to raise the bar on health care providers who accept Medicare and Medicaid.

In February, CMS finalized the rule requiring providers to proactively investigate themselves and report any overpayments to CMS for Medicare Part A and B. (The Rule for Medicare Parts C and D were finalized in 2014, and the Rule for Medicaid has not yet been promulgated). The Rule makes it very clear that CMS expects providers and suppliers to enact robust self auditing policies.

We all know that the Affordable Care Act (ACA) was intended to be self-funding. Who is funding it? Doctors, psychiatrists, home care agencies, hospitals, long term care facilities, dentists…anyone who accepts Medicare and Medicaid. The self-funding portion of the ACA is strict; it is infallible, and its fraud, waste, and abuse (FWA) detection tools…oh, how wide that net is cast!

Subsection 1128J(d) was added to Section 6402 of the ACA, which requires that providers report overpayments to CMS “by the later of – (A) the date which is 60 days after the date on which the overpayment was identified; or (B) the date any corresponding cost report is due, if applicable.”

Identification of an overpayment is when the person has, or reasonably should have through the exercise of reasonable diligence, determined that the person received an overpayment. Overpayment includes referrals or those referrals that violate the Anti-Kickback statute.

CMS allows providers to extrapolate their findings, but what provider in their right mind would do so?

There is a six-year look back period, so you don’t have to report overpayments for claims older than six years.

You can get an extension of the 60-day deadline if:

• Office of Inspector General (OIG) acknowledges receipt of a submission to the OIG Self-Disclosure Protocol
• OIG acknowledges receipt of a submission to the OIG Voluntary Self-Referral Protocol
• Provider requests an extension under 42 CFR §401.603

My recommendation? Strap on your pole vaulting shoes and get to jumping!

Audits “Breaking Bad” in New Mexico: Part II

By: Edward M. Roche, the founder of Barraclough NY LLC, a litigation support firm that helps healthcare providers fight against statistical extrapolations.

In the first article in this series, we covered how a new governor of New Mexico recently came into power and shortly thereafter, all 15 of the state’s nonprofit providers for behavioral health services were accused of fraud and replaced with companies owned by UnitedHealthcare.

When a new team is brought in to take over a crisis situation, one might expect that things would improve. The replacement companies might be presumed to transfer to New Mexico newer and more efficient methods of working, and patient services would become better and more efficient. Out with the old, in with the new. The problem in New Mexico is that this didn’t happen – not at all.

The corporate structure in New Mexico is byzantine. UnitedHealth Group, Inc. is a Minnesota corporation that works through subsidiaries, operating companies and joint ventures to provide managed healthcare throughout the United States. In New Mexico, UnitedHealth worked through Optum Behavioral Health Solutions and United Behavioral Health, Inc. OptumHealth New Mexico is a joint venture between UnitedHealthcare Insurance Company and United Behavioral Health, according to the professional services contract signed with the State of New Mexico.

And that’s not all. OptumHealth is not the company providing the services. According to the contract, It was set up to act as a bridge between actual providers of health services and a legal entity called the State of New Mexico Interagency Behavioral Health Purchasing Collaborative. This Collaborative combines together 16 agencies within the state government.

OptumHealth works by using subcontractors to actually deliver healthcare under both Medicaid and Medicare. Its job is to make sure that all claims from the subcontractors are compliant with state and federal law. It takes payment for the claims submitted and then pays out to the subcontractors. But for this service, OptumHealth takes a 28-percent commission, according to court papers.

This is a nice margin. A complaint filed by whistleblower Karen Clark, an internal auditor with OptimumHealth, indicated that from October 2011 until April 2012, OptumHealth paid out about $88.25 million in Medicaid funds and got a commission of $24.7 million. The payments went out to nine subcontractors. Clark claimed that from Oct. 1, 2011 until April 22, 2013, the overall payouts were about $529.5 million, and the 28-percent commission was about $148.3 million.

In spite of the liberal flow of taxpayer money, things did not go well. Clark’s whistleblower suit, filed in the U.S. District Court for the District of New Mexico, claimed that OptumHealth knew of massive fraud but refused to investigate. Clark says she was eventually fired after she uncovered the malfeasance. It appears that even after learning of problems, OptumHealth kept billing away, eager to continue collecting that 28-percent commission.

Clark’s complaint details a number of problems in New Mexico’s behavioral health sector. It is a list of horrors: there were falsified records, services provided by unlicensed providers, use of improper billing codes, claims for services that never were provided, and many other problems. Allegedly, many client files contained no treatment plans or treatment notes, or even records of what treatments had been provided and s services billed for times when offices were closed. The suit also claims that some services were provided by probationers instead of licensed providers, and a number of bills were submitted for a person who was outside the United States at the time.

The complaint further alleges that one provider received $300,000 in payments, but had submitted only $200,000 worth of claims. When Clark discovered this she allegedly was told by her supervisor at OptumHealth that it was “too small to be concerned about”. It also is alleged that a) insight-oriented psychotherapy was billed when actually the client was being taught how to brush their teeth; b) the same services were billed to the same patient several times per month, and files were falsified to satisfy Medicaid rules; c) interactive therapy sessions were billed for patients who were non-verbal and unable to participate; d) individual therapy was claimed when group therapy was given; e) apart from Medicaid, other sources allegedly were billed for exactly the same services; and f) developmentally disabled patients were used to bill for group therapy from which they had no capacity to benefit. Clark also stated that investigations of one provider for false billing were suspended because they were “a big player in the state”.

Other alleged abuse included a provider that submitted claims for 15-20 hours per day of group therapy for 20 to 40 children at a time, and for numerous psychotherapy services never provided. The complaint also describes one individual provider that supposedly worked three days per week, routinely billing Medicaid for twelve 30-minute individual psychotherapy sessions; 12 family psychotherapy sessions; 23 children in group therapy; and 32 children in group interactive psychotherapy each day.

A number of other abuses are detailed in the complaint: a) some providers had secretaries prescribing medication; b) one provider claimed that it saw 30 patients each 90 minutes per day for psychotherapeutic treatment; c) some individuals allegedly submitted claims for 30 hours per day of treatment; and d) some facilities had no credentialed psychotherapist at any of its facilities. Remember that all of these subcontractors are providing behavioral (psychiatric and psychological) services. Clark found that others submitted bills claiming the services were performed by a medical doctor, but there were none at their facility.

And in one of the most stunning abuses imaginable, one provider allegedly diagnosed all of their patients as having autism. Clark believes this was done because it allowed billing under both medical and mental health billing codes.

These are only a few of the apparent problems we see in New Mexico’s behavioral services.

You would think that once all of this had been brought to light, then public authorities such as the state’s Attorney General’s office would be eager to investigate and begin to root out the abusers. But that isn’t what happened.

James Hallinan, a spokesman for that office, stated that “based on its investigation, the Office of the Attorney General determined it would be in the best interest of the State to decline to intervene in the case.”

While it was making this decision, Clark’s allegations remained under court seal. But now they can be shown.

Note:

(*) Hallinan, James, spokesman for Attorney General’s office, quoted by Peters, J. and Lyman, A. Lawsuit: $14 million in new Medicaid fraud ignored in botched behavioral health audits, January 8, 2016, NM Political Report, URL: http://nmpoliticalreport.com/26519/lawsuit-optumhealth-botched-audits-of-nm-providers/ accessed March 22, 2016.

This article is based on US ex rel. Karen Clark and State of New Mexico ex rel. Karen Clark and Karen Clark, individually vs. UnitedHealth Group, Inc., United Healthcare Insurance Company, United Behavioral Health, Inc., and OptumHealth New Mexico, Complaint for Damages and Penalties, United States District Court for the District of New Mexico, No. 13-CV-372, April 22, 2013 held under court seal until a few weeks ago.

Audits “Breaking Bad” in New Mexico

By: Ed Roche, founder of Barraclough NY LLC, a litigation support firm that helps healthcare providers fight against statistical extrapolations

It was published in RACMonitor.

Healthcare providers sometimes can get caught up in a political storm. When this happens, audits can be used as a weapon to help preferred providers muscle into a market. This appears to have happened recently in New Mexico.

Let’s go back in time.

On Sept. 14, 2010, Susana Martinez was in Washington, D.C. She was looking for campaign contributions to run for the governorship of New Mexico. She visited the office of the government lobbying division of UnitedHealth Group and picked up a check for $25,000.

The next day, Martinez published an editorial claiming that Bill Richardson’s administration in New Mexico was tolerating much “waste, fraud and abuse” in its Medicaid program. Eventually, she was elected as the 31st governor of New Mexico and took office Jan. 1, 2011.

According to an email trail, by the fall of 2012, Martinez’s administration was busy exchanging emails with members of the boards of directors of several healthcare companies in Arizona. During this same period, the Arizonans made a number of contributions to a political action committee (PAC) set up to support Martinez. At the same time, officers from New Mexico’s Human Services Department (HSD) made a number of unannounced visits to Arizona.

The lobbying continued in earnest. Hosted in part by UnitedHealth money, the head of HSD visited Utah’s premier ski resort, and the bill was paid for by an organization financed in part by UnitedHealth. The governor’s chief of staff was treated to dinner at an expensive steakhouse in Las Vegas. There is suspicion of other contacts, but these have not been identified. All of these meetings were confidential.

The governor continued to publicly criticize health services in New Mexico. She focused on 15 mental health providers who had been in business for 40 years. They were serving 87 percent of the mental health population in New Mexico and had developed an extensive delivery system that reached all corners of the state.

Martinez honed in on one mental health provider because the CEO used a private aircraft. He was accused of using Medicaid funds to finance a lavish lifestyle. None of this was true. It turned out that the owner had operations all over the state and used the plane for commuting, but it made for good sound bites to feed the press.

The state decided to raise the pressure against the providers. Public Consulting Group (PCG), a Boston-based contractor, was called in to perform an audit of mental health services. In addition to taking samples and performing analyses of claims, PCG was asked to look for “credible allegations of fraud.”

In legal terms, the phrase “credible allegations of fraud” carries much weight. Under the Patient Protection and Affordable Care Act, it can be used to justify punitive actions against a provider. It is surprising that only “allegations” are necessary, not demonstrated proof. The reality is that in practical terms, a provider can be shut down based on allegations alone.

In a letter regarding its work, PCG stated that “there are no credible allegations of fraud.” Evidently, that was the wrong answer. PCG was kicked out of New Mexico and not allowed to complete its audit. HSD took over.

The PCG letter had been supplied to HSD in a Microsoft Word format. In a stunning act, HSD removed the statement concluding that there were “no credible allegations of fraud.” HSD continued to use the PCG letter, but only in this altered form.

HSD continued to insist publicly that there were credible allegations of fraud. Since PCG had been kicked out before completing the audit, a HSD staff attorney took the liberty of performing several statistical extrapolations that generated a repayment demand of more than $36 million. During testimony, the attorney admitted that the extent of his experience with statistics was an introductory course he had taken years earlier in college.

Two years later, statistical experts from Barraclough NY LLC who are elected fellows of the American Statistical Association examined HSD’s work and concluded that it was faulty and unreliable. They concluded there was zero credibility in the extrapolations.

But for the time being, the extrapolations and audits were powerful tools. On June 24, 2013, all of the aforementioned 15 nonprofits were called into a meeting with HSD. All were accused of massive fraud. They were informed that their Medicaid payments were to be impounded. The money needed to service 87 percent of New Mexico’s mental health population was being cut off.

The next day, UnitedHealth announced a $22 million investment in Santa Fe. We have not been able to track down the direct beneficiaries of these investments. However, we do know that the governor’s office immediately issued a press release on their behalf.

The 15 New Mexico providers were being driven out of business. This had been planned well in advance. Shortly thereafter, the government of New Mexico, through HSD, [approved] issued $18 million in no-bid contracts to five Arizona-based providers affiliated with UnitedHealth. These are the same companies that had been contributing to the governor’s PAC.

These five Arizona companies then took over all mental health services for New Mexico. Their first step was to begin cutting back services. To give one example: patients with two hours therapy per week were cut back to 10 fifteen-minute sessions per year.It was the beginning of a mental health crisis in New Mexico.

As of today, two of the Arizona providers have abandoned their work in New Mexico. A third is in the process of leaving. What is the result? Thousands of New Mexico mental health patients have been left with no services. Entire communities have been completely shut [cut] off. The most vulnerable communities have been hit the hardest.

Through litigation, the 15 original providers forced the New Mexico Attorney General to examine the situation. It took a long time. All of the providers now are out of business. The Attorney General reported a few weeks ago that there were never any credible allegations of fraud.

This should mean that the impounded money would be returned to the 15 providers. After all, the legal reason why it was impounded in the first place has been shown to be false. One would think that the situation could return to normal.

The original 15 should be able to continue their business, and hire back the more than 1,500 persons they had been forced to lay off. Once the impounded monies are returned to the providers, they will be able to pay their legal bills, which now add up to hundreds of thousands of dollars.

Unfortunately, that is not happening. HSD still is claiming that the $36 million extrapolation is due, and that actually, the providers owe the state money. The New Mexico government is not budging from its position. The litigation continues.

Meanwhile, New Mexico now is tied with Montana in having the highest suicide rate in the continental United States.

Alphabet Soup: RACs, MICs, MFCUs, CERTs, ZPICs, PERMs and Their Respective Look Back Periods

I have a dental client, who was subject to a post payment review by Public Consulting Group (PCG). During the audit, PCG reviewed claims that were 5 years old.  In communication with the state, I pointed out that PCG surpassed its allowable look back period of 3 years.  To which the Assistant Attorney General (AG) said, “This was not a RAC audit.”  I said, “Huh. Then what type of audit is it? MIC? ZPIC? CERT?” Because the audit has to be one of the known acronyms, otherwise, where is PCG’s authority to conduct the audit?

There has to be a federal and state regulation applicable to every audit.  If there is not, the audit is not allowable.

So, with the state claiming that this post payment review is not a RAC audit, I looked into what it could be.

In order to address health care fraud, waste, and abuse (FWA), Congress and CMS developed a variety of approaches over the past several years to audit Medicare and Medicaid claims. For all the different approaches, the feds created rules and different acronyms.  For example, a ZPIC audit varies from a CERT audit, which differs from a RAC audit, etc. The rules regulating the audit differ vastly and impact the provider’s audit results greatly. It can be as varied as hockey and football; both have the same purpose of scoring points, but the equipment, method of scoring, and ways to defend against an opponent scoring are as polar opposite as oil and water. It can be confusing and overwhelming to figure out which entity has which rule and which entity has exceeded its scope in an audit.

It can seem that we are caught swimming in a bowl of alphabet soup. We have RACs, ZPICs, MICs, CERTs, and PERMs!!

alphabet soup

What are these acronyms??

This blog will shed some light on the different types of agencies auditing your Medicare and Medicaid claims and what restrictions are imposed on such agencies, as well as provide you with useful tips while undergoing an audit and defending the results.

First, what do the acronyms stand for?

  • Medicare Recovery Audit Contractors (RACs)
  • Medicaid RACs
  • Medicaid Integrity Contractors (MICs)
  • Zone Program Integrity Contractors (ZPICs)
  • State Medicaid Fraud Control Units (MFCUs)
  • Comprehensive Error Rate Testing (CERT)
  • Payment Error Rate Measurement (PERM)

Second, what are the allowable scope, players, and look back periods for each type of audit? I have comprised the following chart for a quick “cheat sheet” when it comes to the various types of audits. When an auditor knocks on your door, ask them, “What type of audit is this?” This can be invaluable information when it comes to defending the alleged overpayment.

SCOPE, AUDITOR, AND LOOK-BACK PERIOD
Name Scope Auditor Look-back period
Medicare RACs

Focus:

Medicare zaqoverpayments and underpayments

Medicare RACs are nationwide. The companies bid for federal contracts. They use post payment reviews to seek over and under payments and are paid on a contingency basis. Region A:  Performant Recovery

Region B:  CGI Federal, Inc.

Region C:  Connolly, Inc.

Region D:  HealthDataInsights, Inc.

Three years after the date the claim was filed.
Medicaid RACs

Focus:

Medicaid overpayments and underpayments

Medicaid RACs operate nationwide on a state-by-state basis. States choose the companies to perform RAC functions, determine the areas to target without informing the public, and pay on a contingency fee basis. Each state contracts with a private company that operates as a Medicaid RAC.

In NC, we use PCG and HMS.

Three years after the date the claim was filed, unless the Medicaid RAC has approval from the state.
MICs

Focus:

Medicaid overpayments and education

MICs review all Medicaid providers to identify high-risk areas, overpayments, and areas for improvement. CMS divided the U.S. into five MIC jurisdictions.

New York (CMS Regions I & II) – Thomson Reuters (R) and IPRO (A) • Atlanta (CMS Regions III & IV) – Thomson Reuters (R) and Health Integrity (A) • Chicago (CMS Regions V & VII) – AdvanceMed (R) and Health Integrity (A) • Dallas (CMS Regions VI & VIII) – AdvanceMed (R) and HMS (A) • San Francisco (CMS Regions IX & X) – AdvanceMed (R) and HMS (A)

MICs are not paid on a contingency fee basis.

MICs  may review a claim as far back as permitted under the laws of the respective states (generally a five-year look-back period).
ZPICs

Focus:

Medicare fraud, waste, and abuse

ZPICs investigate potential Medicare FWA and refer these cases to other entities.

Not random.

CMS, which has divided the U.S. into seven ZPICs jurisdictions.

Only investigate potential fraud.

ZPICs are not paid on a contingency fee basis.

ZPICs have no specified look-back period.
MFCUs

Focus:

Medicaid fraud, waste, and abuse

MFCUs investigate and prosecute (or refer for prosecution) criminal and civil Medicaid fraud cases. Each state, except North Dakota, has an MFCU.

Contact info for NC’s:

Medicaid Fraud Control Unit of North Carolina
Office of the Attorney General
5505 Creedmoor Rd
Suite 300
Raleigh, NC   27612

Phone: (919) 881-2320

website

MFCUs have no stated look-back period.
CERT

Focus:

Medicare improper payment rate

CERT companies indicate the rate of improper payments in the Medicare program in an annual report. CMS runs the CERT program using two private contractors (which I am yet to track down, but I will). The look back period is the current fiscal year (October 1 to September 30).
PERM

Focus:

Medicaid improper payment rate

PERM companies research improper payments in Medicaid and the Children’s Health Insurance Program. They extrapolate a national error rate. CMS runs the PERM program using two private contractors(which I am yet to track down, but I will). The look back period is the current fiscal year (the complete measurement cycle is 22 to 28 months).

 As you can see, the soup is flooded with letters of the alphabet. But which letters are attached to which audit company determines which rules are followed.

It is imperative to know, when audited, exactly which acronym those auditors are

Which brings me back to my original story of my dental provider, who was audited by a “non-RAC” entity for claims 5 years old.

What entity could be performing this audit, since PCG was not acting as its capacity as a RAC auditor? Let’s review:

  • RAC: AG claims no.
  • MIC: This is a state audit, not federal. No.
  • MFCU: No prosecutor involved. No.
  • ZPIC: This is a state audit, not federal. No allegation of fraud. No.
  • CERT:This is a state audit, not federal. No.
  • PERM: This is a state audit, not federal. No.

Hmmmm….

If it walks like a duck, talks like a duck, and acts like a duck, it must be a duck, right?

Or, in this case, a RAC.

Consider Nominating This Blog for the 2015 Best Legal Blog Contest (Please)!

The 2015 Legal Blog Contest is here!

For all you that follow this blog, thank you!  I hope that you agree that I provide you with valuable and up-to-date information on Medicaid/care regulatory issues.  At least, that is my hope in maintaining this blog.  And maintaining this blog takes a lot of time outside my normal, hectic legal career and my time as a mom and wife.  Don’t get me wrong…I love blogging about these issues because these issues are near and dear to my heart.  I am passionate about health care, health care providers, Medicaid and Medicare, and access to quality care.

If you are a follower, then you know that I try to keep my readers current on Medicaid/care fraud, federal and state laws, legal rights for health care providers, bills in the General Assembly germane to health care, extrapolation issues, CMS rulings, managed care matters, reimbursement rates, RAC audits and much, much more!

If you enjoy my blog, I ask a favor. Please consider nominating my blog for the 2015 Best Legal Blog Contest.

If you want to nominate my blog, please click here.

Scroll down until you see this:

blog contest

Enter your name, email address, my blog address. which is:

https://medicaidlawnc.wordpress.com/

For category, click on “Niche and Specialty.”  I do not believe the other categories correctly describe my blog.

And type a reason why you enjoy my blog.  Much appreciated!

Attorney/Client Privilege: Its Importance to Health Care Providers, and TIPS to Avoid Potential Pitfalls as to Former Employees

This blog is intended to provide TIPS to health care providers who have any amount of attrition with staff members and why these TIPS as to attorney/client privilege are so important.

First, I’d like to say, for the past few weeks, I have been moving homes and firms, concurrently.  Add in a trial or two into the mix and I haven’t been able to blog as often.  But I’m fairly moved in now (to both) and have one of the trials mostly wrapped up.

The idea for this blog, in particular, actually came to me while Robert Shaw, Senior Counsel, and I were Santa Fe, New Mexico for a trial.

While preparing the witnesses for trial, I re-realized an important aspect of attorney/client privilege that is vital to health care providers if there is any attrition in their staff.

I say “re-realized” because I already knew the importance of attorney/client privilege, but I realized the importance for health care providers to understand its importance, as well…hence, this blog.

If, for whatever reason, your company is forced to lay off staff or, even, if you have staff voluntarily leave your office, you need to read the entirety of this blog and pay special attention to the TIPS at the bottom.

Why?

What if you need to rely on that former employee for testimony in a hearing?

For example, you are CEO of a small or large health care provider company and your Medical Director or Compliance Director leaves your employment and you need the former employee to testify in the future.  Your former employee and your attorney will not be protected by attorney/client privilege.

You may be thinking…so what?

But attorney/client privilege is key in trial.

Let me give you an illustrative example:

You own a dental practice and accept Medicaid.  Lucy is your office manager.  She oversees the Medicaid billing, ensures regulatory compliance, and deals with denials that come from NCTracks.  She also enters the data into NCTracks.  You, as the dentist, provide dental services, but you have little to do with what Lucy does.  You trust her and she does her job well.

DHHS via Program Integrity conducts an audit and determines that you owe $750,000 in alleged overpayments. Maybe the auditor didn’t know that the notation “cavies” means cavities and dinged you for billing for filling a cavity because the auditor could not discern from the service note that a cavity was actually filled.  Or, maybe you coded the service for scraping the wall of a gingival pocket, and the auditor did not understand what “curettage” is in the service note.

Regardless, you receive a Notice of Overpayment on May 4, 2015.  On May 7, 2015, Lucy tells you that she is having her first baby and wants to be stay at home mother.  You congratulate her and begin your search for another office manager.  You end up hiring Bill.

By the time that you need to get ready to defend your $750,000 overpayment with your attorney, Lucy has given birth to Annie and hasn’t worked for you for over a year.

But your attorney, in order to defend the overpayment, will need Lucy to testify at court.  Before a witness testifies in court, your attorney must meet with him or her to prepare the witness for direct examination and cross examination by opposing counsel. (If your attorney does not, instruct him or her to do so).

When I am in a situation such as the one I have outlined above.  I am extremely careful.  Because there is no attorney/client privilege between “Lucy” and me because she is a former employee, I am very precise in my prep.  For example, I would never discuss legal strategy with Lucy.  I would never show privileged information; I would never try to “lead” Lucy’s opinion. Leading a witness’s opinion could come across like, “Lucy, If I ask you on the stand whether your opinion is that curettage means scraping a gingival pocket, you would agree, correct?” Instead, I would ask, “Lucy, what do you understand curettage to mean and how would you normally code the procedure?”

Why?

Any attorney worth his or her salt knows that attorney/client privilege does not attach to a former employee.

Why does that matter?

Any opposing attorney worth his or her salt will cross exam Lucy as to every detail possible involving the meeting between Lucy and me. And I mean every detail.

For example:

Q: “You met with Ms. Emanuel in preparation for this meeting, correct?”

A: “Yes.”

Q: “When exactly was that?”

A: “Two weeks ago.”

Q: “What documents did Ms. Emanuel show you?”

A: “She showed me my direct examination.”

Q: “What do you mean? A hard copy of the questions that you would be asked?”

A: “Yes.”

Q: “Ms. Emanuel, I expect that you have no problem providing me with a copy of what you showed Lucy?”

Me: “Not at all.”

Boom! By Lucy testifying that I showed her my hard copy of my direct examination questions, opposing counsel is entitled to review my draft questions along with any notes I may have notated on that hard copy of Lucy’s direct testimony.  What happens if I have privileged notes contained within my questions? My attorney notes contained within the questions are now discoverable by the other side.

[BTW: I would never show Lucy my actual list of questions, unless I fully anticipated giving my list to opposing counsel.]

But you can see the potential pitfalls. Anything discussed or shown to Lucy by your counsel will be discoverable by opposing counsel.  What if your counsel, without thinking, tells Lucy that he or she thinks this is a weak case? Or tells Lucy that he or she hopes the other side doesn’t pick up on…..X?

Even if the attorney prepping Lucy states something disparaging about opposing counsel, or God forbid, the judge, those remarks are discoverable and Lucy must testify to those comments on the stand.

On one occasion, I actually had opposing counsel question my witness about our conversation during a 10 minute break, during which I was smart enough not to speak about the case.  My witness answered, “We discussed that I think you are b$#@!”  But counsel’s question was valid and allowable.  Because just as easily, during the break, I could have said, if I were not worth my salt, “Lucy, I did not like how you answered that question.  You need to say…..X.”

Judges do not look favorable on coached testimony.

TIPS:

As a health care provider, what measures can you take that if you are forced to call former employees as witnesses, you are poised for the best result?

1. Try to maintain a cordial relationship with former employees.

I know this can be difficult as every provider needs to terminate staff or has disgruntled employees.  But, even if you are firing staff, try to do so in a professional, amicable manner. Explain that it is a business decision, not personal (regardless the reason).  Give the soon-to-be-fired employee notice, such as 30 days, if possible.  If you would recommend the employee to a colleague, let the employee know and to whom.  These small steps can help your future in case of trial.

2. Re-hire the employee.

In my opinion, this avenue has an aura of attempted deceit, and I do not recommend this route unless you are re-hiring the employee in good faith.  For example, if you truly did not want to fire the staff member and you genuinely could use that person back in your office, or, if, in the case of Lucy, she decides that she wants to come back to work of her own volition and you still have the need.

An employee is protected by attorney/client privilege, generally.

3. Be knowledgeable or hire a knowledgeable attorney.

If you are concerned that your attorney may disclose something otherwise confidential in witness prep of a former employee, have a lengthy discussion with your attorney prior to the preparation session.  Sit in with your attorney during the prep of the former attorney.

Along the same lines as above, come to an understanding with your attorney which documents may be considered “hot docs” and essential to the case, and, which should not be discussed with a former employee at all.

4. Test the waters.

Prior to your attorney contacting Lucy, call Lucy yourself. Have a chat.  Catch up. Ask Lucy whether she is willing to testify on your behalf.  If Lucy starts cussing you out, you may want to think of alternative witnesses.  If there are no alternative witnesses, you may want to discuss with your attorney whether an affidavit or deposition could substitute for Lucy’s testimony at trial.

5. Pay for Lucy’s time

There is nothing wrong or unethical about compensating Lucy for her trial preparation and appearance at trial.  Obviously, this compensation is discoverable by opposing counsel and questions can be asked about the compensation situation.  But I believe it is better to have a happy Lucy, who feels that her time is valuable, rather than an increasingly frustrated Lucy, as each second ticks along.

6. Think ahead

If you know you will be terminating an employee or if you receive notice that an employee  is leaving, think about the most important aspects of his or her job and memorialize the procedures.  For example, in the case of Lucy, ask Lucy to draft a memo to the file as to her procedures in billing Medicaid.  Have her write which service notes are billed for which codes and the reasons in support and how she manually enters data into NCTracks.  It may seem tedious, but these notes will be invaluable during any future litigation.

Along the same vein as above, if possible, have Lucy train Bill prior to her leaving.  That way, if Lucy is an undesirable witness, Bill can testify that he follows the same protocol as Lucy because Lucy trained him and he follows her protocol.

Hopefully, these TIPS will be helpful to you in the future in the case of employees leaving your practice.  Print off the blog and review it whenever an employee is leaving.

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

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

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

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

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

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

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

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

Going back to the proposed bill…

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

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

The proposed bill also forbids extrapolation as to alleged overpayments.

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

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

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

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

The End.

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

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

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

The Numbers

North Carolina Legislature

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

N.C. Congressional Delegation

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

Thanks, Tracy, for those demographics.

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

Are PCG’s Extrapolated Medicaid Audits in Violation of State Statute?

Public Consulting Group (PCG) is one of the contracted entities conducting Medicaid post-payment audits in North Carolina. I’ve heard rumors that NC Department of Health and Human Services (DHHS) is not renewing PCG’s contract, although I have found no evidence to corroborate this rumor.

Regardless, right now, PCG is here and the Medicaid post-payment audits continue. And PCG continues to extrapolate.  For more information as to the extrapolations, see my blog: How Does $100 Become $100,000? Check for Clusters!

But is PCG legally allowed to extrapolate? Oh, of course it is allowed to legally extrapolate!! The contract between DHHS and PCG allows PCG to extrapolate, right? But…what if….the extrapolations are not being conducted legally?

N.C. Gen. Stat. 108C-5 states, in pertinent part:

“(i) Prior to extrapolating the results of any audits, the Department shall demonstrate and inform the provider that (i) the provider failed to substantially comply with the requirements of State or federal law or regulation or (ii) the Department has credible allegation of fraud concerning the provider.

Prior to extrapolating, the Department must demonstrate and inform…

Prior to…

Of all the Tentative Notices of Overpayment (TNO) that I have seen, the actual TNO states the extrapolated amount and states that the audit is extrapolated because “(1) the provider  failed to substantially comply with the requirements of State or federal law or regulation or (ii) the Department has credible allegation of fraud concerning the provider.”  There is no more detail.  The TNO literally regurgitates the statutory language into the TNO.  Does that constitute “demonstrating”?  Better yet, if a provider receives the information that “(1) the provider  failed to substantially comply with the requirements of State or federal law or regulation or (ii) the Department has credible allegation of fraud concerning the provider” CONCURRENTLY with receipt of the extrapolated amount, does that notice meet the statutory criteria of PRIOR TO?

Question #1: Does regurgitating the statutory language meet the requirement that the State demonstrate the noncompliance?

Question #2: Does the Department sending the reason for the extrapolation concurrently with the extrapolation meet the statutory requirement to inform the provider prior to extrapolating?

Let’s start with Question #1…

Last night I was checking my daughter’s homework.  She had to read an article on Abraham Lincoln.  Then she had to answer reading comprehension questions about the article.  One question was something like, “What is this article primarily about?”  The article discussed the Civil War, Lincoln, the Gettysburg Address, Lincoln’s top hat, Lincoln’s assassination and Lincoln’s gravesite.  My daughter answered “B: Abraham Lincoln’s presidency.”  (Which was wrong). 

What if I told her she was wrong, but never explained why?  I believe the conversation would go something like this: “You’re wrong.”  “Why?” “Because you’re wrong.”  “But WHY am I wrong.”  “Because you are wrong.”

In the above scenario, I informed my daughter that she was wrong.  But I failed to demonstrate how or why she was wrong.

Similarly, N.C. Gen. Stat. requires that the Department  demonstrate and inform the provider that the provider failed to substantially comply with the requirements of State or federal law or regulation or that the Department has credible allegation of fraud concerning the provider.

Inform + Demonstrate = Statutory compliance

So, does PCG demonstrate and inform the providers that the provider failed to substantially comply with the requirements of State or federal law or regulation or that the Department has credible allegation of fraud concerning the provider, simply by restating the identical language in the TNO?

“Why?” “Because you’re wrong.”

Ok, how about Question #2…?

How important is something to occur prior to versus concurrently? I mean, at least it is done, right? Who cares whether the action is done prior to or concurrently? 

Think of skydiving.  I tell you to be sure to put on your parachute prior to jumping.  Instead you hold your parachute, leap out of the plane, and attempt to put on your parachute contemporaneously as jumping.  With the amount of air resistance you encounter after you jump, you are unable to get the parachute secured and you die.

Let’s look at a less grotesque example…Think about eating…I tell you to open your mouth prior to inserting the piece of chocolate cake into your mouth.  Instead you insert the piece of chocolate cake into your mouth while you concurrently open your mouth.  Sure, you get some cake into your mouth, but the majority of the chocolate cake is smeared all over your face.

Can PCG send you one letter saying you are non-compliant while concurrently informing you of the extrapolated amount? Or is that a bit like squashing chocolate cake into your face?

Are PCG’s Extrapolated Medicaid Audits in Violation of State Statute?

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??

NC Medicaid Extrapolation Audits: How Does $100 Become $100,000? Check for Clusters!

Extrapolation.  If you are a Medicaid provider and have either received a Tentative Notice of Overpayment (TNO) or heard horror stories about TNOs, then the word, ‘extrapolation,’ most likely, will cause you to grimace.

So many providers come to me asking, “The audit amount was only for $1,500. How did that $1,500 become $850,000?” Or $1.5 million. Or $400,000? It does not seem to make sense.

But wouldn’t it be a beautiful thing if extrapolations worked in the opposite way? You put $1,500 in your bank account and the bank extrapolated the $1,500 to $850,000?  Or $1.5 million?  Or $400,000?  If opposite extrapolation existed, then maybe I would like extrapolation. Why? Because I would have a monetary incentive to like, accept, even agree with extrapolation.

Similarly, the Recovery Audit Contractors (RACs) have the monetary incentive to like, accept, even agree with extrapolation.  Approximately a 12.3%-contingency-fee incentive.

What exactly is an extrapolation?

Extrapolation is a statistical procedure in which the auditor takes findings from a small sample of Medicaid-paid claims and, using a mathematical formula, projects those results over a much larger “universe” of claims producing, in many cases, large dollar audit overpayments…sometimes even producing a overpayment amount over the amount the provider was actually paid.

Seem fair? No, at least, when these extrapolations are erroneously conducted.

But, sadly, I believe extrapolations are here to stay.  Even if I do not think Public Consulting Group (PCG) is here to stay in North Carolina, another RAC will take PCG’s place.

“Medical Practice Compliance Alert” agrees with me.  The July 8, 2013, issue of “Medical Practice Compliance Alert,” states “Like it or not, extrapolation audits are becoming the norm…”  See Volume 25, Issue 13 (by Lauren C. Williams).

Ms Williams also wrote that in one case she reviewed the overpayment was for only $10,000+, but the overpayment was extrapolated to $10 million.

Extrapolation is allowed by statute.  N.C. Gen. Stat. 108C-5 allows the RAC to extrapolate. But limits the audit period to 36 months from the date of payment of a provider’s claim.

“Except as required by federal agency, law, or regulation, or instances of credible allegation of fraud, the provider shall be subject to audits which result in the extrapolation of results for a time period of up to 36 months from date of payment of a provider’s claim.”

The North Carolina Administrative Code (NCAC) specifically sets forth the technique for such extrapolations.

 10A NCAC 22F .0606 TECHNIQUE FOR PROJECTING MEDICAID OVERPAYMENTS

(a) The Medicaid agency will seek restitution of overpayments made to providers by the Medicaid program.

(b) The agency may use a Disproportionate Stratified Random Sampling Technique in establishing provider overpayments.

(c) This technique is an extrapolation of a statistical sampling of claims used to determine the total overpayment for recoupment.

(emphasis added).

Disproportionate Stratified Random Sampling Technique.

What????

“Disproportionate” is defined as, “being out of proportion.”

“Stratified” is defined as, “the process of dividing members of the population into homogeneous subgroups before sampling. The strata should be mutually exclusive: every element in the population must be assigned to only one stratum. The strata should also be collectively exhaustive: no population element can be excluded.”

“Random” is defined as, “having no specific pattern, purpose, or objective.”

The definition of “Stratified Random Sampling” is, “a method of sampling that involves the division of a population into smaller groups known as strata. In stratified random sampling, the strata are formed based on members’ shared attributes or characteristics. A random sample from each stratum is taken in a number proportional to the stratum’s size when compared to the population. These subsets of the strata are then pooled to form a random sample.”

I had a tough time, as a double-major in English and Poli-Sci, with the whole “stratified” definition until I spoke, at length, with a statistician expert.  According to (we will call him Bill) Bill, two of the most important factors in a Disproportionate Stratified Random Sampling Technique are randomness and strata being mutually exclusive.  Meaning, each date of service (DOS) and each Medicaid recipient must be independent of one another, i.e. if Medicaid recipient X on DOS 1/1/10 is found to be incorrectly found noncompliant, then no other recipient and no other DOS should be contingent on finding of noncompliance from recipient X, DOS 1/1/10.  (As I explained to Bill, I had heard of strata before…plural for a layer of sedimentary rock or soil…but, apparently, this was a different strata).

Here’s a more specific and concrete example:

PCG audited 100 claims of my client, Samantha, the Medicaid provider.  Of the 100 claims, PCG audited 5 DOS for Medicaid recipient A: 2/3/10, 2/17/10, 3/1/10, 3/12/10, and 3/19/10.  The reason that PCG cited all 5 claims as noncompliant was that the auditor found no consent for services by the recipient.  In actuality, there was a consent for services.  The Medicaid recipient was only 10, so his mother signed the consent.  Problem? Mother’s last name was different from child’s last name? So PCG did not know that the signator was the mother. (Really, I say? Really?? In 2013? FYI: My last name is different from my daughter’s last name. But no private insurance has ever questioned the connection between my daughter and me).  Anyway, once the issue with the consent was cleared up (by explaining the child’s mother signed the consent), all 5 DOS were found compliant.

My statistician expert called this “a cluster.”  The importance of a cluster is that the strata is all messed-up.  A strata must be independent, one-element-affects-one-claim, otherwise the entire extrapolation is compromised.

Bill gave me this example:

If you want the statistics of flipping a coin and you flip a coin one time, then hit heads and just assume that heads would have been hit every time you flipped the coin…that’s a cluster.  No independent probability.

Or…tape 5 coins on a piece of paper, all showing heads. Flip the paper and determine, if it lands with all heads facing-up,  that, if independently thrown, all coins would have landed on heads.  Again, no independent probability.

Think about it…PCG (or whatever RAC) reviews 100 claims.  From those 100 claims, it extrapolates. But, what if, 5 or 10 or 20 claims are contingently dependent upon one another? Then the extrapolation is invalid.  Because, for an extrapolation to be valid, each claim must be independent; each element must affect one claim.

So, PCG (or whatever RAC) says you owe $1 million? Check for clusters!!!