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The Reality of Prepayment Review and What To Do If You Are Tagged – You’re It!

Prepayment review is a drastic tool (more like a guillotine) that the federal and state governments via hired contractors review the documentation supporting services for Medicare and Medicaid prior to the provider receiving reimbursement. The providers who are placed on prepayment review are expected to continue to render services, even if the provider is not compensated. Prepayment review is a death sentence for most providers.

The required accuracy rating varies state to state, but, generally, a provider must meet 75% accuracy for three consecutive months.

In the governments’ defense, theoretically, prepayment review does not sound as Draconian as it is. Government officials must think, “Well, if the provider submits the correct documentation and complies with all applicable rules and regulations, it should be easy for the provider to meet the requirements and be removed from prepayment review.” However, this false reasoning only exists in a fantasy world with rainbows and gummy bears. Real life prepayment review is vastly disparate from the rainbow and gummy bears prepayment review.

In real life prepayment review:

  • The auditors may use incorrect, inapplicable, subjective, and arbitrary standards.

I had a case in which the auditors were denying 100% ACTT services, which are 24-hour mental health services for those 10% of people who suffer from extreme mental illness. The reason that the auditor was denying 100% of the claims was because “lower level services were not tried and ruled out.” In this instance, we have a behavioral health care provider employing staff to render ACTT services (expensive), actually rendering the ACTT services (expensive), and getting paid zero…zilch…nada…for a reason that is not required! There is no requirement that a person receiving ACTT services try a lower level of service first. If the person qualifies for ACTT, the person should receive ACTT services. Because of this auditor’s misunderstanding of ACTT, this provider was almost put out of business.

Another example: A provider of home health was placed on prepayment review. Again, 90 – 100% of the claims were denied. In home health, program eligibility is determined by an independent assessment conducted by the Division of Medical Assistance (DMA) via Liberty, which creates an individualized plan of care. The provider submitted claims for Patient Sally, who, according to her plan, needs help dressing. The service notes demonstrated that the in-home aide helped Sally dress with a shirt and pants. But the auditor denies every claim the provider bills for Sally (which is 7 days a week) because, according to the service note, the in-home aide failed to check the box to show she/he helped put on Sally’s shoes. The auditor fails to understand that Sally is a double amputee – she has no feet.

Quis custodiet ipsos custodes – Who watches the watchmen???

  • The administrative burden placed on providers undergoing prepayment review is staggering.

In many cases, a provider on prepayment review is forced to hire contract workers just to keep up with the number of document requests coming from the entity that is conducting the prepayment review. After initial document requests, there are supplemental document requests. Then every claim that is denied needs to be re-submitted or appealed. The amount of paperwork involved in prepayment review would cause an environmentalist to scream and crumple into the fetal position like “The Crying Game.”

  • The accuracy ratings are inaccurate.

Because of the mistakes the auditors make in erroneously denying claims, the purported “accuracy ratings” are inaccurate. My daughter received an 86 on a test. Given that she is a straight ‘A’ student, this was odd. I asked her what she got wrong, and she had no idea. I told her to ask her teacher the next day why she received an 86. Oops. Her teacher had accidentally given my daughter an 86; the 86 was the grade of another child in the class with the same first name. In prepayment review, the accuracy ratings are the only method to be removed from prepayment, so the accuracy of the accuracy ratings is important. One mistaken, erroneously denied claim damages the ratings, and we’ve already discussed that mistakes/errors occur. You think, if a mistake is found, call up the auditing entity…talk it out. See below.

  • The communication between provider and auditor do not exist.

Years ago my mom and I went to visit relatives in Switzerland. (Not dissimilar to National Lampoon’s European Vacation). They spoke German; we did not. We communicated with pictures and hand gestures. To this day, I have no idea their names. This is the relationship between the provider and the auditor.

Assuming that the provider reaches a live person on the telephone:

“Can you please explain to me why claims 1-100 failed?”

“Don’t you know the service definitions and the policies? That is your responsibility.”

“Yes, but I believe that we follow the policies. We don’t understand why these claims are denied. That’s what I’m asking.”

“Read the policy.”

“Not helpful.”

  • The financial burden on the provider is devastating.

If a provider’s reimbursements are 80 – 100% reliant on Medicaid/care and those funds are frozen, the provider cannot meet payroll. Yet the provider is expected to continue to render services. A few years ago, I requested from NC DMA a list of providers on prepayment review and the details surrounding them. I was shocked at the number of providers that were placed on prepayment review and within a couple months ceased submitting claims. In reality, what happened was that those providers were forced to close their doors. They couldn’t financially support their company without getting paid.

Ok, now we know that prepayment review can be a death sentence for a health care provider. How can we prepare for prepayment review and what do we do if we are placed on prepayment review?

  1. Create a separate “what if” savings account to pay for attorneys’ fees. The best defense is a good offense. You cannot prevent yourself from being placed on prepayment review – there is no rhyme or reason for such placement. If you believe that you will never get placed on prepayment review, then you should meet one of my partners. He got hit by lightning – twice! (And lived). So start saving! Legal help is a must. Have your attorney on speed dial.
  2. Self-audit. Be proactive, not reactive. Check your documents. If you use an electronic records system, review the notes that it is creating. If it appears that all the notes look the same except for the name of the recipient, fix your system. Cutting and pasting (or appearing to cut and paste) is a pitfall in audits. Review the notes of the highest reimbursement code. Most likely, the more the reimbursement rate, the more likely to get flagged.
  3. Implement an in-house policy about opening the mail and responding to document requests. This sounds self evident, but you will be surprised how many providers have multiple people getting and opening the mail. The employees see a document request and they want to be good employees – so they respond and send the documents. They make a mistake and BOOM – you are on prepayment review. Know who reviews the mail and have a policy for notifying you if a document request is received.
  4. Buck up. Prepayment review is a b*^%$. Cry, pray, meditate, exercise, get therapy, go to the spa, medicate…whatever you need to do to alleviate stress – do it.
  5. Do not think you can get off prepayment review alone and without help. You will need help. You will need bodies to stand at the copy machine. You will need legal help. Do not make the mistake of allowing the first three months pass before you contact an attorney. Contact your attorney immediately.

Medicaid Auditors, Nitpicky Nonsense, and Journalistic Mistakes

In my experience with regulatory audits of health care providers, which is substantial, the auditors have zero incentive to perform audits conservatively…or even properly, if I am being completely honest. The audit companies themselves are for-profit entities with Boards of Directors, sometimes with shareholders, and definitely with executives who are concerned with the corporate bottom lines. The actual auditors are salaried employees (or contractors) who are given an audit checklist, which may or may not be correct) and instructions as to which companies to audit.

Think about it – you are hired as an auditor…what happens if you come back to your boss, saying, “Nope. I found no documentation errors.”I liken it to me hiring a housekeeper and that housekeeper showing up at my house and saying, “Your house is so clean. There is nothing for me to clean.” First of all, for those who know me, you know that no housekeeper would ever say that my house did not to be cleaned, but that is neither here nor there. The analogy remains. No employee or hired contractor will tell you that you do not need to hire him or her because he or she is not needed. It is only human nature and logic. Will a dog trainer tell you that your dog is fully trained? Will a personal trainer tell you are perfectly fit? Will a rug maker tell you that you don’t need a rug? Will an auditor tell you that your documents are perfect? If so, they would render themselves obsolete.

Disagree with my opinions on this blog all you want, but if you disagree with the principle that an employee will not argue himself or herself out of a job, then you are living in a fantasy land made up of rainbows and gummy bears.

So let’s begin with the basic logical principles: 2+2=4 and auditors have incentives to find errors.

Now, knowing the basic, underlying fact that auditors have incentives to locate documentation errors, an article was recently published entitled, “Audit says home health care companies overbilled Mass. Medicaid by $23m.” While I am not in a position to critique a journalist’s writing, I disagree with the broad, overreaching statements found in this article. While the article claims that 9 home health companies owe the State of Massachusetts $23 million, my guess is that (if the companies hire a competent attorney) the companies do not owe such a large amount. In my experience, there are many legal defenses to safeguard against allegations in an audit.

The follow-up article may be entitled, “Audit of Home Health Agencies Found to Be Erroneous.”

Here is the first paragraph of that article claiming home care agencies overbilled Medicaid for $23 million:

“The state’s Medicaid program was routinely billed for home health care services that were never provided or were not medically necessary. Providers submitted documents with missing dates and signatures. Sometimes basic information like a patient’s medical history was nowhere to be found.”

Let’s dissect.

First sentence: “The state’s Medicaid program was routinely billed for home health care services that were never provided or were not medically necessary.”

I call bull feces on this one. First, the audit, which is the topic of this article, only audited 9 home health agencies. Unless only 10 home health agencies exist in Massachusetts, an audit of 9 agencies can hardly be considered “routinely billing” Medicaid.

Second, who is making these determinations that the home health services are not medically necessary??? Considering that, in order to render home health services, the provider must obtain prior authorization that the services are medically necessary, I find it a hard pill to swallow that the rendered services are not medically necessary. These are prior authorized services!!

Third, providing home health services is anything but routine. Life happens. The assertion that home health care services were never provided fails to take into consideration – life. For example, a home health aide could present at the client’s home at the regularly scheduled time, but the consumer’s son is present. The son brought McDonald’s, in which case, the aide may render all services, but does not prepare a meal for the client. Or, perhaps, the consumer’s plan states that the aide must bathe the consumer. But the consumer recently had surgery and cannot take a bath or shower for a certain amount of time. In the above examples, services were not rendered, that is true, but did some sort of aberrant billing or fraud occur? I would argue, no.

Second sentence: “Providers submitted documents with missing dates and signatures.”

This sentence is also troubling. Let’s say that a consumer requires home health services and receives prior authorization. The home health aide renders the services. In the subsequent documentation, the home health aide forgets to date the service note. There is no question that the home health services were needed. There is no question that the services were rendered. There is only a missing date written on the service note. Does this circumstance warrant a 100% recoupment for a minor documentation error? If you answer, yes, you may have a fulfilling career as a Medicaid auditor in your future. You also may believe that a documentation error as egregious as a missing date should warrant tearing up the provider’s Medicaid contract and burning it. You may also hate puppy dogs and ice cream.

My answer is no. There are less drastic measures to be implemented other than a 100% recoupment – for example, a plan of correction could be required.

Third sentence: “Sometimes basic information like a patient’s medical history was nowhere to be found.”

I have major issues with this sentence. Ever hear of the saying, “You only get what you ask for?” All health care providers, including home health care providers, maintain massive amounts of documentation, whether it be electronic or paper. Furthermore, one client file could have years and years of documentation. When an auditor comes to an agency, the auditor normally presents with a list of consumer names and dates of service.

For example, the auditor wants to review the documentation for Barack Obama, date of service 11/8/12. The provider hands over the service note, the plan of care, the prior authorization, etc. Information not found on the documents provided to the auditor: place of birth, past drug use, including, marijuana and cocaine, smoking history, exercise regimen, marital status, immunizations, list of surgical procedures…you get the picture.

The article goes on to state, “Executives at all of the companies reached by the Globe said they are appealing the audit findings and chalked up most of the violations to minor paperwork issues that were overblown by state auditors.”

“There’s mistakes here, I understand that,” said Debra Walsh, administrator at Able Home Care. “[But] how did a missing address escalate to a sanction? That doesn’t make any sense.”

She’s right. It doesn’t make logical, reasonable, human sense. But it does make sense when you remember that the auditors are sent to the agencies with an audit checklist and a list of consumers with dates of service. If the checklist requires an address of the provider and the consumer to be present on the service note, regardless whether the regulations, rules or law require an address to be present on a service note, and there is no address present on the service note, then the auditor will find noncompliance. Strict adherence to the “Stepford Auditors’ Handbook” is required, not strict adherence to the law.

Looking at the sunny side – Most audit findings are easy-greasy to defend with legal arguments. Have you seen the TV show, “What Not To Wear?” The first, initial meeting of the targeted person on “What Not To Wear” is the original audit results “before a good legal defense.” It’s exaggerated, ugly, and quite shocking.

Then Stacy and Clinton come to the rescue and teach the scraggly, poorly-dressed individual fashion tips and the former frumpy individual is transformed into a fashionable chichi – or a much more palatable overpayment amount.

(In this analogy, my team and I are Stacy and Clinton. I will be Stacy).

One of my favorite examples of a “before” and “after” audit results is the following:

Before (frumpy individual):

""before2
After (fashionable chichi):
photo (3)
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Next time you see an article claiming that a health care provider overbilled the government for Medicare or Medicaid reimbursements, check and see whether the determination was appealed by the provider(s).

The appeal may demonstrate an entirely new perspective on such alleged overpayments than the original audit, because, remember, an auditor would not maintain a job if he or she found compliance.

Health Care Integration: A Glimpse Into My Crystal Ball

Throughout the history of health care, payors and payees of Medicare/caid have existed in separate silos. In fact, the two have combated – the relationship has not always been stellar.

Looking into my crystal ball; however, all will not be as it is now [that’s clear as mud!].

Now, and in the upcoming years, there will be a massive shift to integrate payors and payees under the same roof. Competition drives this movement. So does the uncertainty in the health care market. This means that under one umbrella may be the providers and the paying entities.

Why is this a concern? First – Any healthcare entity that submits claims to the federal government, whether it be a provider or payor, must comply with the fraud and abuse statutes. As such, there is a potential to run afoul of federal and state regulations regulating the business of health care. Payors know their rules; providers know their rules…And those rules are dissimilar; and, at times, conflicting. The opportunity to screw up is endemic.

Second – With the new responsibilities mandated by the Yates Memo, these new relationships could create awkward situations in which the head of the payor department could have knowledge (or should have knowledge) of an [alleged] overpayment, but because of the politics at the company or self-interest in the preservation of his or her career, the head may not want to disclose such overpayment. With the 60-day rule, the head’s hesitation could cost the company.

Let’s investigate:

The Affordable Care Act (ACA) reinvented health care in so many ways. Remember, the ACA is supposed to be self-funding. Taxes were not to increase due to its inception. Instead, health care providers fund the ACA through post payment and prepayment audits, ZPIC audits, CERTs, MFCU, MICs, RACs, and PERMs.

The ACA also made a whole new commercially-insured population subject to the False Claims Act. False statements are now being investigated in connection with Medical Loss Ratios, justifications for rate increases, risk corridor calculations, or risk adjustment submissions.

CMS imposes a duty to detect fraud, waste, and abuse (FWA). But what if you’re looking at your own partners?

medicare paying

 

The chart above depicts “old school” Medicare payment options for physicians and other health care providers. In our Brave New World, the arrows will be criss-crossed (applesauce), because when the payors and the payees merge, the reimbursements, the billing, and the regulatory supervision will be underneath the same roof. It’ll be the game of “chicken” taken to a whole new level…with prison and financial penalties for the loser.

Since 2011, kickback issues have exponentially grown. The Anti-Kickback Statute makes it a criminal offense for a provider to give “remuneration” to a physician in order to compensate the physician for past referrals or to induce future referrals of patients to the provider for items or services that are reimbursed, in whole or in part, by Medicare or Medicaid.

Imagine when payors and payees are owned by the same entity! Plus, the ACA amended the kickback statutes to eliminate the prong requiring actual knowledge or intent. Now you can be convicted of anti kickback issues without any actual knowledge it was ever occurring!!

Now we have the “one purpose test,” which holds that a payment or offer of remuneration violates the Anti-Kickback Statute so long as part of the purpose of a payment to a physician or other referral source by a provider or supplier is an inducement for past or future referrals. United States v. Borrasi,  2011 WL 1663373 (7th Cir. May 4, 2011).

There are statutory exceptions. But these exceptions differ depending on whether you are a payor or payee – see the potential criss-cross applesauce?

And, BTW, which types of health care services are bound by the anti kickback statutes?

  1. Clinical laboratory services;
  2. Physical therapy services;
  3. Occupation therapy services;
  4. Radiology services (including MRIs, Ultrasounds, and CAT scans);
  5. Radiation therapy and supplies;
  6. Durable medical equipment and supplies;
  7. Parenteral and enteral nutrients, equipment, and supplies;
  8. Prosthetics, orthotics, and prosthetic devices and supplies;
  9. Home health services;
  10. Outpatient prescription drugs; and
  11. Inpatient and outpatient hospital services.

 

Imagine a building. Inside is a primary care physician (PCP), a pediatrician, a home health agency, and a psychiatrist. Can the PCP refer to the home health agency? Can a hospital refer to a home care agency? What if one of the Board of Directors sit on both entities?

The keys to avoiding the anti kickback pitfalls is threefold: (1) fair market value (FMV); (2) arm’s length transactions; and (3) money cannot be germane to referrals.

However, there is no one acceptable way to determine FMV. Hire an objective appraiser. While hiring an objective appraiser does not establish accuracy, it can demonstrate a good faith attempt.

Number One Rule for Merging/Acquiring/Creating New Partnerships in our new Brave New World of health care?

Your attorney should be your new BFF!! (Unless she already is).

Another Win for the Good Guys! Gordon & Rees Succeeds in Overturning Yet Another Medicaid Contract Termination!

Getting placed on prepayment review is normally a death sentence for most health care providers. However, our health care team here at Gordon Rees has been successful at overturning the consequences of prepayment review. Special Counsel, Robert Shaw, and team recently won another case for a health care provider, we will call her Provider A. She had been placed on prepayment review for 17 months, informed that her accuracy ratings were all in the single digits, and had her Medicaid contract terminated.

We got her termination overturned!! Provider A is still in business!

(The first thing we did was request the judge to immediately remove her off prepayment review; thereby releasing some funds to her during litigation.  The state is only allowed to maintain a provider on prepayment review for 12 months).

Prepayment review is allowed per N.C. Gen. Stat. 108C-7.  See my past blogs on my opinion as to prepayment review. “NC Medicaid: CCME’s Comedy of Errors of Prepayment Review“NC Medicaid and Constitutional Due Process.

108C-7 states, “a provider may be required to undergo prepayment claims review by the Department. Grounds for being placed on prepayment claims review shall include, but shall not be limited to, receipt by the Department of credible allegations of fraud, identification of aberrant billing practices as a result of investigations or data analysis performed by the Department or other grounds as defined by the Department in rule.”

Being placed on prepayment review results in the immediate withhold of all Medicaid reimbursements pending the Department of Health and Human Services’ (DHHS) contracted entity’s review of all submitted claims and its determination that the claims meet criteria for all rules and regulations.

In Provider A’s situation, the Carolinas Center for Medical Excellence (CCME) conducted her prepayment review. Throughout the prepayment process, CCME found Provider A almost wholly noncompliant. Her monthly accuracy ratings were 1.5%, 7%, and 3%. In order to get off prepayment review, a provider must demonstrate 70% accuracy ratings for 3 consecutive months. Obviously, according to CCME, Provider A was not even close.

We reviewed the same records that CCME reviewed and came to a much different conclusion. Not only did we believe that Provider A met the 70% accuracy ratings for 3 consecutive months, we opined that the records were well over 70% accurate.

Provider A is an in-home care provider agency for adults. Her aides provide personal care services (PCS). Here are a few examples of what CCME claimed were inaccurate:

1. Provider A serves two double amputees. The independent assessments state that the pateint needs help in putting on and taking off shoes. CCME found that there was no indication on the service note that the in-home aide put on or took off the patients’ shoes, so CCME found the dates of service (DOS) noncompliant. But the consumers were double amputees! They did not require shoes!

2. Provider A has a number of consumers who require 6 days of services per week based on the independent assessments. However, many of the consumers do not wish for an in-home aide to come to their homes on days on which their families are visiting. Many patients inform the aides that “if you come on Tuesday, I will not let you in the house.” Therefore, there no service note would be present for Tuesday. CCME found claims inaccurate because the assessment stated services were needed 6 days a week, but the aide only provided services on 5 days.  CCME never inquired as to the reason for the discrepancy.

3. CCME found every claim noncompliant because the files did not contain the service authorizations. Provider A had service authorizations for every client and could view the service authorizations on her computer queue. But, because the service authorization was not physically in the file, CCME found noncompliance.

Oh, and here is the best part about #3…CCME was the entity that was authorizing the PCS (providing the service authorizations) and, then, subsequently, finding the claim noncompliant based on no service authorization.

Judge Craig Croom at the Office of Administrative Hearings (OAH) found in our favor that DHHS via CCME terminated Provider A’s Medicaid contract arbitrarily, capriciously, erroneously, exceeded its authority or jurisdiction, and failed to act as accordingly to the law. He ruled that DHHS’ placement of Provider A on prepayment review was random

Because of Judge Croom’s Order, Provider A remains in business. Plus, she can retroactively bill all the unpaid claims over the course of the last year.

Great job, Robert!!! Congratulations, Provider A!!!

A New Year and We Will “Ring In” Even Lower PCS Reimbursement Rates: Time for Litigation?

Merry Christmas, everyone!!! And Happy New Year!!

I hope everyone had a wonderful holiday! Personally, Christmas was wonderful for my family.  I actually took some days off.  And our 9-year-old girl received way too many presents.  Plus, I learned that we should be spending way less on her!! We bought her a new saddle, bridle and breast-strap for her horse, but, when asked what she received for Christmas, she tells everyone about the $2 marshmallow gun she received, not the saddle. Regardless, we were able to spend quality time together with my mom and dad and 2 sisters.  My husband Scott, however, got the flu and he has been in bed for the last few days…yuck! But he was healthy on Christmas.

We have been truly blessed this year, and I want to thank you all for reading my blog.

I received an email today from an owner of a home care agency that reminded me that, especially during the holidays, many people are struggling.  This home care agency owner, “we will call him Al,” informed me that he potentially will be closing his agency, which would put approximately 130 employees out of work. Al told me that his agency has been struggling over the past few years with the decrease in personal care services (PCS) reimbursement rate.

Al is not the only home care agency owner who has contacted me in the last few months bemoaning about the low PCS reimbursement rates.  The PCS reimbursement rates are set by legislature, most of the time in the budget bills.  For example, the General Assembly passed the budget this past year, which will decrease the PCS reimbursement rates by another 3% beginning January 1, 2015. (Happy New Years).

See below, which is from another blog post: “PCS Medicaid Reimbursement Rates Are TOO LOW to Maintain Adequate Quality of Care, in Violation of the Code of Federal Regulations!

“SECTION 12H.18.(b). During the 2013-2015 fiscal biennium, the Department of Health and Human Services shall withhold reduce by three percent (3%) of the payments … on or after January 1, 2014” (emphasis added).”

The PCS reimbursement rate became $13.88. Session Law 2014-100 was signed into law August 7, 2014; however, Session Law 2014-100 purports to be effective retroactively as of October 2013. (This brings into question these possible recoupments for services already rendered, which, in my opinion, would violate federal and state law, but such possible violations (or probable or currently occurring violations are a topic for another blog).

It is without question that the Medicaid reimbursement rate for PCS is too low. In NC, the PCS reimbursement rate is currently set at $13.88/hour (or $3.47/15 minutes). It is also without question that there is a direct correlation between reimbursement rates and quality of care.

Because Medicaid pays for approximately 67% of all nursing home residents and recipients of home health care in USA, the Medicaid reimbursement rates and methods are central to understanding the quality of care received by PCS services and the level of staffing criteria expected.

PCS for adults are not a required Medicaid service. As in, a state may opt to provide PCS services or not. As of 2012, 31 states/provinces provided PCS services for adults and 25 did not. Most notably, Florida, Virginia, and South Carolina did not provide PCS services for adults. See Kaiser Family Foundation website.

According to Kaiser Family Foundation, “For the personal care services state plan option, the average rate paid to provider agencies [across the nation] was $18.19 per hour in 2012, a slight increase from $17.91 per hour in 2011. In states where personal care services providers were paid directly by the state or where reimbursement rates were determined by the state, the average reimbursement rate was $16.31 per hour in 2012. Medicaid provider reimbursement rates are often set by state legislatures as part of the budget process.”

What can be done regarding these low PCS reimbursement rates in NC???

In order to change legislation, one of two avenues exist: (1) lobbying; or (2) litigation.

Over the past few years, while the PCS reimbursement rates have continued to decrease, the associations involved with home care organizations and long term care facilities (companies that provide PCS) have emphasized the lobbying aspect.  No litigation has been filed demanding a reasonable PCS reimbursement rate.

Obviously, the lobbying aspect has yielded less than desirable results.  Instead of increasing the PCS reimbursement rate, the General Assembly has continually decreased the rate.

When one line of attack does not work, you try another.

Maybe it is time for litigation.

PCS Medicaid Reimbursement Rates Are TOO LOW to Maintain Adequate Quality of Care, in Violation of the Code of Federal Regulations!

I recently spoke at the Association for Hospice and Home Care (AHHC) and the NC Association for Long Term Care Facilities (NCLTCF) conferences. At issue at both conferences was the reimbursement rate for personal care services (PCS), which is extremely important to both home health agencies (HHAs) and long-term care facilities (LTCFs).

Both AHHC and NCLTCF, as associations, are vital to the HHAs and LTCFs across the state. Associations provide a network of peers, up-to-date information, and lobbying efforts. The old saying, “United we stand, divided we fall,” comes to mind.

The saying, “United we stand, divided we fall,” was originally coined by Aesop, one of my favorite storytellers of all time, in the story “The Four Oxen and the Lion,” which goes like this:

“A lion used to prowl about a field in which four oxen used to dwell. Many a time he tried to attack them; but whenever he came near they turned their tails to one another, so that whichever way he approached them he was met by the horns of one of them. At last, however, they fell a-quarrelling among themselves, and each went off to pasture alone in a separate corner of the field. Then the lion attacked them one by one and soon made an end of all four.”

UNITED WE STAND, DIVIDED WE FALL.”

I think “The Four Oxen and the Lion” is indicative as to the importance of an association, generally. An association is truly essential when it comes to lobbying. There are two times during which we have a potential impact as to the wording of statutes: (1) During the forefront, by lobbying efforts; and (2) At the backend, through litigation. Obviously, if the forefront is successful, then there becomes no need for the backend.

Much to my chagrin, in my explanation above, I am the “backend.” Hmmmm.

Because I am a litigator and not a lobbyist, I am only called upon if the forefront fails.

In the last session, the General Assembly enacted Session Law 2014-100, which reduced the Medicaid reimbursement rates for all services by 3%.

“SECTION 12H.18.(b). During the 2013-2015 fiscal biennium, the Department of Health and Human Services shall withhold reduce by three percent (3%) of the payments … on or after January 1, 2014” (emphasis added).”

The PCS reimbursement rate became $13.88. Session Law 2014-100 was signed into law August 7, 2014; however, Session Law 2014-100 purports to be effective retroactively as of October 2013. (This brings into question these possible recoupments for services already rendered, which, in my opinion, would violate federal and state law, but such possible violations (or probable or currently occurring violations are a topic for another blog).

It is without question that the Medicaid reimbursement rate for PCS is too low. In NC, the PCS reimbursement rate is currently set at $13.88/hour (or $3.47/15 minutes). It is also without question that there is a direct correlation between reimbursement rates and quality of care.

Because Medicaid pays for approximately 67% of all nursing home residents and recipients of home health care in USA, the Medicaid reimbursement rates and methods are central to understanding the quality of care received by PCS services and the level of staffing criteria expected.

PCS for adults are not a required Medicaid service. As in, a state may opt to provide PCS services or not. As of 2012, 31 states/provinces provided PCS services for adults and 25 did not. Most notably, Florida, Virginia, and South Carolina did not provide PCS services for adults. See Kaiser Family Foundation website.

According to Kaiser Family Foundation, “For the personal care services state plan option, the average rate paid to provider agencies [across the nation] was $18.19 per hour in 2012, a slight increase from $17.91 per hour in 2011. In states where personal care services providers were paid directly by the state or where reimbursement rates were determined by the state, the average reimbursement rate was $16.31 per hour in 2012. Medicaid provider reimbursement rates are often set by state legislatures as part of the budget process.”

See the below chart for a state by state comparison:

PCS across country 1

PCS country 2

Why should we care about the Medicaid PCS reimbursement rates?

1. Low reimbursement rates directly, and negatively, impact quality of care.
2. The aides who provide the PCS services, whether in someone’s home or at a LTCF, are often, him or herself on Medicaid.
3. It is in our best interest as a public for home health care agencies and LTCF to continue to accept Medicaid recipients.
4. It is in our best interest as a public for home health agencies and LTCF to stay in business.

#1: Low reimbursement rates directly, and negatively, impact quality of care.

42 U.S.C.A §1396a requires that a state provide Medicaid reimbursement rates at a level to “assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population…”

In an article entitled “Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities,” written by Charlene Harrington, James H Swan, and Helen Carrillo, the authors found that the Medicaid nursing home reimbursement rates were linked to quality of care, as to both RN hours and total nursing hours.

“Resident case mix was a positive predictor of RN hours and a negative predictor of total nursing hours. Higher state minimum RN staffing standards was a positive predictor of RN and total nursing hours while for-profit facilities and the percent of Medicaid residents were negative predictors.”

Numerous other articles have been published in the last few years that cite the direct correlation between reimbursement rates and quality of care.

The argument can be made that $13.88 is too low a reimbursement rate to ensure adequate quality of care. However, again, because this rate was not prevented at the forefront, it would entail a “backend” act of litigation to adjust the current reimbursement rate. (It is important to note that beginning next year, there will be an additional reduction of rate by another 1%).

#2: The aides who provide the PCS services, whether in someone’s home or at a LTCF, is often, him or herself on Medicaid.

According to the Paraprofessional Healthcare Institute, an advocacy group for home care workers, 1 in 4 home health workers has a household income below the federal poverty line and more than 1 in 3 do not have health insurance.

Think about this…home care workers provide PCS to the elderly, disabled, and needy, many of which are on Medicaid and Medicare. Home care workers work full-time changing diapers, assisting with ambulation, dressing, and grooming for the elderly, yet 1 in 4 home care workers are eligible for Medicaid themselves.

Currently, federal minimum wage is $7.25/hour. 18 states have minimum wage equal to the federal minimum wage, including North Carolina. 23 states set minimum wage higher than the federal level. Washington D.C. pays the highest minimum wage at $9.50/hour.

PCS reimbursement rates in NC are $3.47/15 minutes, or $13.88/hour. $13.88 is above the federal and NC minimum wage of $7.25. However, just because the PCS reimbursement rate is $13.88/hour does not mean that the PCS workers are receiving $13.88/hour. The owners of HHAs and LTCFs pay their workers much less than $13.88/hour; they have overhead, insurance, taxes, salaries, etc. to pay…not to mention a percentage of the $13.88/hour needs to be allocated to profit (albeit, however, small).

According to the Bureau of Labor Statistics, in 2013, the average PCS worker’s salary in NC is $19,392/year, or $1,660/month. Working 40 hours a week, a salary of $17,280 equates to approximately $10.10/hour. Obviously, $10.10 is well-above our $7.25 minimum wage, although difficult to make ends meet.

The average fast food worker’s hourly wage is $7.73.

In order for an increase of hourly pay, of any amount, for home health workers, the Medicaid PCS reimbursement rate would need to be increased.

With the current PCS rate at $13.88/hour, home health workers are getting paid between $8.00-11.00/hour. In order for PCS workers to receive $15.00/hour, the PCS rate would need to be increased by $2.00-5.00/hour.

#3: It is in our best interest as a public for HHAs and LTCFs to continue to accept Medicaid recipients.

What if HHA and LTCF refused to accept Medicaid recipients because the reimbursement rates are simply too low?

With the number of people dependent on Medicaid, if HHAs and LTCFs refused Medicaid recipients, our elderly and disabled would suffer.

Perhaps the average length of life would decrease. Perhaps we would implement legal euthanasia. Perhaps the suicide rate would increase. Perhaps the homelessness percentage would reach an all-time high. Is this the world in which you want to live?? Is this the world in which you want to age??

In my opinion, the way we treat our elderly, disabled and needy population is a direct reflection on the level of civilization or educated sophistication.

Here is an excerpt of an article published in 2013 when China passed its new Elderly Rights Law:

Korea: Celebrating old age
Not only do Koreans respect the elderly, but they also celebrate them. For Koreans, the 60th and 70th birthdays are prominent life events, which are commemorated with large-scale family parties and feasts. As in Chinese culture, the universal expectation in Korea is that roles reverse once parents age, and that it is an adult child’s duty — and an honorable one at that — to care for his or her parents.

The U.S. and U.K.: Protestantism at play
Western cultures tend to be youth-centric, emphasizing attributes like individualism and independence. This relates back to the Protestant work ethic, which ties an individual’s value to his or her ability to work — something that diminishes in old age. Anthropologist Jared Diamond, who has studied the treatment of the elderly across cultures, has said the geriatric in countries like the U.K. and U.S. live “lonely lives separated from their children and lifelong friends.” As their health deteriorates, the elderly in these cultures often move to retirement communities, assisted living facilities, and nursing homes.”

#4: It is in our best interest as a public for HHAs and LTCFs to stay in business.

Or we can become more like the Koreans. At least, in this one respect, would emulating the Korean attitude be so bad?

Conclusion

Obviously, we cannot shift the American attitude toward the elderly, disabled and needy within one generation.

But we CAN increase the PCS reimbursement rate.

Here, the forefront was not as effective as needed. Maybe there is a need for a “backend” act of litigation…

Medicaid, Medicare, Nursing Facilities, and Death and Taxes: Our Uncertain Future for Our Aged Population

There are few “knowns” in life. In 1789, Benjamin franklin penned a correspondence to Jean-Baptiste Leroy, in which he wrote, “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”

Certainly the phrase “death and taxes” had existed prior to Franklin’s 1789 usage, but considering how famous Franklin became in history for our country, many people attribute the phrase to Franklin.

Think about it. Nothing is certain, but death and taxes. It is a rather bleak view of the world. Why not “nothing is certain except happiness and sadness?” Or “nothing is certain but you being alive and dying?” Why do both “certain” items have to be bleak?

For purposes of this blog, I am using my own phrase:

“Nothing is certain except old age, unless you die early.”

For one day, we will all be old (unless we die early). And when we age, as much as we would love to ignore the fact, the fact is that most of us will be placed in an assisted living facility (ALF) or a nursing home of some sort.

But what will the world of ALFs look like 20…30…40 years from now? With the low Medicare and Medicaid reimbursement rates for personal care services (PCS), how many nursing homes will exist in the future?

Already, in Massachusetts, nursing homes are dropping like flies due to low reimbursement rates. What does this mean to the aged population?

In NC, our PCS reimbursement rate continues to be slashed. What will this mean for our aged population?

In the past few years, with approval from the Center for Medicare and Medicaid Services (CMS), NC Department of Health and Human Services (DHHS) has lowered the reimbursement rates for non-medical PCS provided both in the home and in a facility.

In October 2013, DHHS officials proposed to CMS a cut in the Medicaid PCS hourly rate by $2.40 per hour, down to $13.12 per hour, retroactive to July 1 (At the time, the PCS hourly rate was $15.52 and allowed up to 130 hours of care per month or, roughly, 4 hours a day).

Interestingly, DHHS has the PCS reimbursement rate for facilities and for home health care providers the same. Yet, facilities face much higher overhead, staffing costs, and building and equipment costs than does a home care provider. So why do both different types of providers receive the same reimbursement rate?

Prior to 2010, DHHS had two separate PCS rates, one for facilities and one for home health care providers. Obviously, the reimbursement rate in facilities was higher than the PCS rate for home health care providers to account for the additional overhead costs.

However, Disability Rights of NC warned DHHS that paying lower reimbursement rates for people living in the home versus a facility violated the Americans with Disabilities Act (ADA). The U.S. Department of Justice (DOJ) agreed, and, in 2012, the General Assembly (GA) had to make a decision: (1) lower the reimbursement rate for PCS in facilities; (2) increase the reimbursement rates for PCS in the home; (3) or come up with some innovative way to not violate the ADA.

Feeling pinched, the GA passed legislation that made it more difficult for recipients to qualify for PCS and decreased the number of allowable hours of PCS to from 130 to 80 hours per month, although if a person suffered from dementia, the PCS provider could get an extra 50 hours/week.

Plus, starting January 1, 2014, the shared savings plan went into effect, which decreased reimbursement rates by 3% across the board.

What does all this mean? It points to a couple of things.

Nursing facilities are facing financial distress.

In Massachusetts nursing facilities have already begun to close down. As of May 19, 2014, within 5 months, 4 nursing homes have gone out of business. According to The Boston Globe, the 4 nursing homes closed because they were “unable to make ends meet with the money they get from Medicaid because reimbursement rates have not increased in nearly a decade, according to the Massachusetts Senior Care Association, the industry trade group. Scores more are on the edge of shutting down.”

Scores more are on the verge of shutting down? For those of you who do not recall Lincoln’s speech, “Four scores and seven years ago…,” a score equals 20. According to the Boston Globe scores are on the verge of shutting down??? 40? 60?

With our aged population growing by the day, what does the future look like for nursing homes and the aged population?

Nothing may be certain except death and taxes, but I think it is certain that you will grow old, unless you die early.

The Future of Managed Care in Medicaid and the Fear of the Unknown

The unknown.  No one likes the unknown.  Especially people, like me, who try so desperately to maintain control over our lives. 

But the future of Medicaid in North Carolina is unknown.  We have all heard Governor McCrory talk about expanding managed care to all Medicaid services, not just behavioral health care, but for all medical services.  Here in NC, our experience with managed care organizations (MCOs) has not been all sunshine and roses.  So, when we hear…let’s expand the MCO system to all Medicaid services, I am reminded of the feeling I had this past Saturday as I stood on the side of the Wells Fargo building, 30-stories up, facing background, with a harness and a helmet on, when the rappel guy said, “Ok…now lean back and let go…”

OK….so is anyone wondering how I managed rappelling down the 30-story Wells Fargo building downtown Raleigh this past Saturday in the name of Special Olympics North Carolina?

Answer: I DID NOT MANAGE WELL!!!

I do not kid you when I say that I thought that I would enjoy rappelling. I envisioned myself bouncing off the side of the building, laughing, and doing straddle jumps. I envisioned myself getting to the bottom with an adrenaline rush and an immediate need to sign-up for next year’s Over The Edge charity event.

So, what actually happened?  Picture this:

I am standing on the edge of a 30-story building.  I have 20 pounds of equipment attached all around my body.  I am donning a helmet and gloves.  I have never seen any of the equipment that is wrapped around my body.  The pro-rappellers are saying things like “rigger,” “descenders,” and “carabiners.”  They are obviously all hard-core, banging rapellers, which I, most certainly, am not.

In order to get on the ledge of the building, you have to climb up onto the ledge…as in, take your 2 arms and hoist your body up onto the ledge…sit down on your bum with your back to the 30-story view…and, then, completely stand up…. on a ledge… in order to lean back and jump off the building.

If you can envision preparing yourself for a jump off a 30-story building without your heart racing, then you are way cooler than I.

Ever heard the saying, “The first step is the hardest?”  Whoever said that had, obviously, rappelled off the Wells Fargo building.  Just prior to actually going over the edge, not only did my body have to battle the physical issues (shaking, breathing, and sweating), but my brain kicked into high gear.  I wanted to cry.  I cussed at the nice rappellers trying to comfort me.  My brain told me to give up and descend as we are meant to…via elevators.

The rappeller-volunteer said, “Lean back and let go!”

I cussed.  I screamed, “Get me off this building!!” to the nice rappeller-volunteers.  But, eventually (and, definitely, NOT gracefully) I started the descent down the building.  The entire way down, which, by the way, takes at least 15 minutes, I panicked; I hyperventilated; I prayed; I cussed; I tried to not spin; I made a very weak attempt of actually using the lever attached to my rope to make myself go down (No, I do not know the term for the apparatus); my muscles failed me….for 15 minutes.

Why?? Fear of the unknown.  I was in a completely new situation, and one in which I had no control.

Similarly, the unknowns of the future of Medicaid terrify providers, recipients, and advocates alike.  “Just lean back and let go!”

I am currently at the Association for Home and Hospice Care of North Carolina (AHHC) Leadership Convention in Wrightsville Beach.  (Which, BTW, is a great association).  The morning speaker, Scott Carbonara was fantastic.  He spoke about engaging fully in life, work, and family.

During lunch, I ended up sitting next to another attorney (unbeknownst to me at the time of sitting), who works for the National Council on Medicaid.

Another person who wants to talk about Medicaid sitting next to me during lunch? I felt like I drew the lucky straw.

Then she said that she helps implement managed care throughout the country.  She may as well have said that she teaches medical providers to refuse Medicaid and provide horrible services to Medicaid recipients.

You have to understand, if you have read my blogs, my opinion as to MCOs and mental health.

She must’ve read my horror on my face.  She said…”Oh, I know.  Most people do not have positive reactions when I explain my job.”

Me? I felt like I was standing on edge of the ledge with an unknown rappeller telling me to, “Lean back and let go!”  Trust me…

We proceeded to have a rather lengthy conversation.  I explained the effects of the MCOs on Medicaid recipients and behavioral health care providers here in NC. 

I explained to her that some MCOs are denying medically necessary assertive community treatment team services (ACTT) (a highly intense, 24-hour/day service for the most severely mentally ill) even when the recipients meet the continued stay criteria and do not meet discharge criteria.  I explained that the recipients who were undergoing discharge from ACTT were becoming hospitalized, incarcerated, homeless, and sometimes all of the above.

She was horrified.

“Why would the MCOs deny ACTT services if discharge criteria is not met?”  She said.  “It ends up costing more money, with the hospitalizations and incarcerations, than it would cost if the MCO actually authorized the mental health care needed.”  In other words, providing medically necessary services saves money, if you look at the totality of circumstances.

“Where is CMS?”

You win a prize! Ding! Ding! Ding!

I explained that our management of Medicaid services is bifurcated.  The MCOs are only in charge of behavioral health, not the total patient care.  The monetary incentive for the MCOs in NC is to provide the least expensive services to the least amount of Medicaid recipients through the least amount of Medicaid providers.

She said, “Well, the providers can choose to deal with the MCOs, right?”

Not in NC.  As the MCOs are jurisdictional, if the MCO in one county says that you cannot see your patients, another MCO in a different MCO may say otherwise.

She explained that her MCOs work completely differently.  (Here I was on the edge of the Wells Fargo building again).  We are just supposed to trust that other MCOs would act differently?

Then she told me why her MCOs would not act like our current MCOs.

In her MCO world, the MCOs manage ALL Medicaid services. If a recipient suffers high blood pressure, diabetes, and schizophrenia, the MCO handles all the recipients’ medical issues.  That MCO is in charge of the totality of the recipient’s care.  If the MCO denies ACTT services and the recipient is hospitalized, then the MCO has the burden of paying for that more expensive ER visit.  If the MCO denies ACTT services and the recipient is incarcerated without the proper care and medication, then that MCO has the burden of paying for all crisis care for the recipient that may occur from not receiving necessary services.  It costs less to provide proper care rather than let the recipient decompress and pay higher emergency costs. 

Hmmm…

She wanted to get a representative of one her MCOs to listen to my horror stories.  She tried to convince me that the MCOs she has worked with would approve all necessary services.  It’s just cheaper in the long run.

But, to me, there is fear of the unknown.

What if the MCOs she has worked with do NOT authorize services like she is describing??

How do we know that a new system would be better? I mean, we’ve all seen how great the new billing system NCTracks is…New is not always better.  Change is unknown, and the unknown is scary.

I guess we all have to ask ourselves: Is the current NC MCO system bad enough to warrant a change to the unknown?

When you are standing on top the 30-story building, and are told to “Lean back and let go…”

Do you?

Or do you take the elevators?

On Medicaid? Need Home Health Aide Services? You Are Now Limited in Number of Visits.

New revisions to Medicaid policy limit the number of home health aide services for Medicaid recipients, regardless of medical need.

North Carolina Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) revised the Clinical Policy 3A. The revised policy took effect July 1, 2013.

Prior to this revised policy, home health aide services were limited to the amount, frequency, and duration of services as  ordered by the physician and documented in the Plan of Care (POC). As in, if you needed services four times a week, if your physician ordered the services and the need for such services were documented on the POC, you could receive home health aide services four times a week.

What are home health aide services?

“Home Health (not aide) Services, generally, include medically necessary skilled nursing services, specialized therapies (physical therapy, speech-language pathology, and occupational therapy), home health aide services, and medical supplies provided to beneficiaries who live in primary private residences. Skilled nursing, specialized therapies, and medical supplies can also be provided if the beneficiary resides in an adult care home (such as a rest home or family care home).”

Home health aide services are a subpart of Home Health Services.

“Home health aide services are hands-on paraprofessional services provided by a Nurse Aide I or II (NA I or NA II) under the supervision of the RN. The services are provided in accordance with the established POC to support or assist the skilled service (skilled nursing and specialized therapies).

Home health aide services help maintain a beneficiary’s health and facilitate treatment of the beneficiary’s illness or injury. Typical tasks include:

a. Assisting with activities such as bathing, caring for hair and teeth, eating, exercising, transferring, and eliminating.

b. Assisting a beneficiary in taking self-administered medications that do not require the skills of a licensed nurse to be provided safely and effectively.

c. Assisting with home maintenance that is incidental to a beneficiary’s medical care needs, such as doing light cleaning, preparing meals, taking out trash, and shopping for groceries.

d. Performing simple delegated tasks such as taking a beneficiary’s temperature, pulse, respiration, and blood pressure; weighing the beneficiary; changing dressings that do not require the skills of a licensed nurse; and reporting changes in the beneficiary’s condition and needs to an appropriate health care professional.”

See DMA Clinical Policy 3A, p. 1-3 (emphasis added).

The revised Policy 3A has 5 additional pages (it went from 29 pages to 34 pages, in total), but many more restrictions, many of which are without regard to medical necessity.

Such as, “Home health aide services must be limited to 100 total visits per year per beneficiary.”  Click here for the full text of the revised Policy 3A. Of course, always remember the exception for children: EPSDT.

Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) is a federal Medicaid requirement that requires the state Medicaid agency to cover services, products, or procedures for Medicaid beneficiary under 21 years of age if the service is medically necessary health care  to correct or ameliorate a defect, physical or mental illness, or a condition [health problem] identified through a screening examination (includes any evaluation by a physician or other licensed clinician).

For more information on EPSDT, see my blog: “EPSDT’s Impact on Medicaid Audits.”

 Now, going back to our Medicaid recipient in medical need of 4 home health aide services/week (208 visits/year), he or she is now limited to 100/year (almost 2 visits/week) (This math is using 52 week/year, not 52.1775).

There are other services possible, depending on the medical necessity. But as for home health aide services, you only get 100.

Remember, this limit not only affects Medicaid recipients (obviously the limit impacts the recipients most greatly), but, also, providers will have less work for their home health aides. As one of my readers pointed out to me, the aides are only making around $8/hour.

DMA Clinical Policy 3A, revised July 1, 2013, has other restrictions. See below for some other restrictions.

Skilled Nursing Visits

Pre-filling insulin syringes/Medi-Planner visits (RC 581) must be limited to a maximum of one visit every two (2) weeks with one (1) additional PRN visit allowed each month. There is a limit of 75 skilled nursing visits (inclusive of, and in any combination with, RC 550, RC 551, RC 559, RC 580, RC 581, and RC 589) per beneficiary per state fiscal year.

Miscellaneous Code T1999        

Use of the T1999 code for billing miscellaneous supplies is limited as follows:

  • A maximum of $250 per beneficiary per state fiscal year may be billed without prior approval required.
  • Any amount over $250 per beneficiary per state fiscal year, whether for a single item or a cumulative total, requires prior approval.
  • A maximum of $1,500 per beneficiary per state fiscal year may be billed.

Are these new restrictions only because of a tight Medicaid budget? My question is when does medical necessity for Medicaid recipients become a factor in policy limits?