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Darkness Surrounds MCO Mergers: Are Closed Meetings for MCOs Legal?

Recently, Eastpointe Human Services’ board voted unanimously to consolidate with Cardinal Innovations Healthcare, which would make the merged entity the managed care organization (MCO) overseeing 1/3 of NC’s Medicaid, behavioral health services – 32 counties, in all.

The Board’s decision is subject to the approval of the Secretary, but Eastpointe hopes to consolidate by July 1st.

Whether a consolidation between Eastpointe and Cardinal is good for Medicaid recipients and/or our community, I have no opinion.

But the reason that I have no opinion is because the negotiations, which all deal with public funds, have occurred behind closed doors.

Generally, it is our public policy that public bodies’ actions are to be conducted openly. This is why you can stroll on over to our courthouse and watch, virtually, any case be conducted.  There are rare cases in which the court will “seal” or close the record, such as to protect privileged health information or the identity of children.  Our public policy that strongly encourages open sessions for public entities exists for good reason.  As tax payers, we expect full disclosure and transparency as to how our tax dollars are being used.  In a way, all tax paying NC residents are shareholders of NC.  Those who spend our tax dollars owe us a fiduciary duty to manage our tax dollars in a reasonable and responsible manner, and we should be able to attend all board meetings and review all meeting minutes. The MCOs are the agents of the single state entity, Department of Health and Human Services (DHHS), charged with managing behavioral health care for the Medicaid and state-funded population suffering with mental health/developmentally disabled /substance abuse (MR/DD/SA) issues.  As an agent of the state, MCOs are public entities.

But, as I am researching the internet in search of Eastpointe and Cardinal board meeting minutes, I realize that the MCOs are initiating closed meetings and quoting N.C. Gen. Stat. § 143-318.11, ” Closed sessions” as the  basis for being able to conduct closed sessions.  And the number of closed sessions that I notice is not a small number.

The deliberations of a merger between two MCOs are highly important to the public. The public needs to know whether the board members are concerned about improving quality and quantity of care. Whether the deliberations surround a more inclusive provider network and providing more services to those in need. Whether the deliberations consider using public funds to create playgrounds or to fund more services for the developmentally disabled. Or are the board members more concerned with which executives will remain employed and what salaried are to be compensated?

You’ve heard of the saying, “Give him an inch and he’ll take a mile?”  This is what is going through my mind as I review the statute allowing public bodies to hold closed sessions.  Is the statute too open-ended? Is the closed session statute a legal mishandling that unintentionally, and against public policy, allows public meetings to act privately? Or are the MCOs misusing the closed session statute?

So I ask myself the following:

1. Is N.C. Gen. Stat. § 143-318.11 applicable to MCOs, or, in other words, can the MCOs conduct closed sessions? and, if the answer to #1 is yes, then

2. Are the MCOs overusing or misusing its ability to hold closed sessions? If the answer to #3 is yes, then

3. What can be done?

These are the three questions I will address in this blog.

Number one:

Is N.C. Gen. Stat. § 143-318.11 applicable to MCOs, or, in other words, can the MCOs conduct closed sessions?

According to the statute, “”public body” means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of The University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function.”

The MCOs are bodies or agents of the state that are composed of more than 2 members and exercises or is authorized to exercise administrative or advisory functions to the extent allowed by the Waivers.

I determine that, in my opinion, N.C. Gen. Stat. § 143-318.11 is applicable to the MCOs, so I move on to my next question…

Number two:

 Are the MCOs overusing or misusing its ability to hold closed sessions?

As public policy dictates that public bodies act openly, there are enumerated, statutory reasons that a public body may hold a closed session.

A public body may hold a closed session only when a closed session is required:

  1. “To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes.
  2. To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.
  3. To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded.
  4. To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations, or to discuss matters relating to military installation closure or realignment. Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.
  5. To establish, or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract.
  6. To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.
  7. To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct.
  8. To formulate plans by a local board of education relating to emergency response to incidents of school violence or to formulate and adopt the school safety components of school improvement plans by a local board of education or a school improvement team.
  9. To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.”

Option 1 clearly applies, in part, to privileged health information (PHI) and such.  So I would not expect that little Jimmy’s Medicaid ID would be part of the board meeting issues, and, thus, not included in the minutes, unless his Medicaid ID was discussed in a closed session.

I cannot fathom that Option 2 would ever be applicable, but who knows?  Maybe Alliance will start giving out prizes…

I would assume that Option 3 is used most frequently.  But notice:

“General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant.”

Which means that: (1) the closed session may only be used to talk about specific legal strategies and not general policies.  For example, arguably, an MCO could hold a closed session to consult with its attorney whether to appeal a specific case, but not to discuss whether, generally, the MCO intends to appeal all unsuccessful cases.

and

(2) the MCO cannot call for a closed session “on the fly” and only because its attorney happens to be participating in the board meeting.

As I am rifling through random board meeting minutes, I notice the MCO’s attorney is always present.  Now, I say “always,” but did not review all MCO meeting minutes. There may very well be board meetings at which  the attorneys don’t attend. However, the attorney is present for the minutes that I reviewed.

Which begs the question…Are the MCOs properly using the closed sessions?

Then I look at Options 4, and 5, and 6, and 7, and 8, and 9…and I realize, Geez, according to one’s interpretation, the statute may or may not allow almost everything behind closed doors. (Well, maybe not 9).  But, seriously, depending on the way in which each Option is interpreted, there is an argument that almost anything can be a closed session.

Want to hold a closed session to discuss why the CEO should receive a salary of $400,000? N.C. Gen. Stat. § 143-318.11(5)(ii).

Want hold a closed session to discuss the anonymous tip claim that provider X is committing Medicaid fraud? N.C. Gen. Stat. § 143-318.11(7).

Want to hold a closed session to discuss how an MCO can position itself to take over the world? N.C. Gen. Stat. § 143-318.11(4).

In an atmosphere in which there is little to no supervision of the actions of the MCOs, who is monitoring whether the MCOs are overusing or misusing closed sessions?

Number three:

What can you do if you think that an MCO is holding closed sessions over and above what is allowed by N.C. Gen. Stat. § 143-318.11?

According to N.C. Gen. Stat. § 143-318.16A, “[a]ny person may institute a suit in the superior court requesting the entry of a judgment declaring that any action of a public body was taken, considered, discussed, or deliberated in violation of this Article. Upon such a finding, the court may declare any such action null and void. Any person may seek such a declaratory judgment, and the plaintiff need not allege or prove special damage different from that suffered by the public at large.”

Plus, according to N.C. Gen. Stat. § 143-318.16A, “[w]hen an action is brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A, the court may make written findings specifying the prevailing party or parties, and may award the prevailing party or parties a reasonable attorney’s fee, to be taxed against the losing party or parties as part of the costs. The court may order that all or any portion of any fee as assessed be paid personally by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation; provided, that no order against any individual member shall issue in any case where the public body or that individual member seeks the advice of an attorney, and such advice is followed.”

 In sum, if you believe that an MCO is conducting a closed session for a reason not enumerated above, then you can institute a lawsuit and request attorneys’ fees if you are successful in showing that the MCO knowingly or intentionally committed the violation.

We should also appeal to the General Assembly to revise, statutorily, more narrowly drafted closed session exceptions.

Medicaid Closed Networks: Can Waivers Waive Your Legal Rights?

Sorry for the lapse in blogging. I took off for Thanksgiving and then got sick. I hope you all had a wonderful Thanksgiving!!

While I was sick, I thought about all the health care providers that have been put out of business because the managed care organization (MCO) in their area terminated their Medicaid contract or refused to contract with them. I thought about how upset I would be if I could not see my doctor, whom I have seen for years. See blog for “You Do Have Rights!

Then I thought about…Can a Waiver waive a legal right?

Federal law mandates that Medicaid recipients be able to choose their providers of choice. Court have also held that this “freedom of choice” of provider is a right, not a privilege.

42 U.S.C. § 1396a states that Medicaid recipients may obtain medical services from “any institution, agency, community pharmacy, or person, qualified to perform the service or services required… who undertakes to provide him such services….” Id. at (a)(23).

So how can these MCOs restrict access?

First, we need to discuss the difference between a right and a privilege.

For example, driving is a privilege, not a right. You have no right to a driver’s license, which is why you can lose your license for things, such as multiple DUIs. Plus, you cannot receive a driver’s license unless you pass a test, because a license is not a right.

Conversely, you have the right to free speech and the right to vote. Meaning, the government cannot infringe on your rights to speak and vote unless there are extraordinary circumstances. For example, the First Amendment does not protect obscenity, child pornography, true threats, fighting words, incitement to imminent lawless action (yelling “fire” in a crowded theater), criminal solicitation or defamation. Your right to vote will be rescinded if you are convicted of a felony. Furthermore, you do not need to take a test or qualify for the rights of free speech and voting.

Likewise, your choice of health care provider is a right. It can only be usurped in extraordinary circumstances. You do not need to take a test or qualify for the right. (Ok, I am going to stop underlining “right” and “privilege” now. You get the point).

Then how are MCOs operating closed networks? For that matter, how can Blue Cross Blue Shield (BCBS) terminate a provider’s contract? Wouldn’t both those actions limit your right to choose your provider?

The answer is yes.

And the answer is simple for BCBS. As for BCBS, it is a private company and does not have to follow all the intricate regulations for Medicare/caid. 42 U.S.C.  § 1396a is inapplicable to it.

But Medicaid recipients have the right to choose their provider.  This “freedom of choice” provision has been interpreted by both the Supreme Court and the Seventh Circuit as giving Medicaid recipients the right to choose among a range of qualified providers, without government interference (or its agents thereof).

What does this mean? How can a managed care organization (MCO) here in NC maintain a closed network of providers without violating the freedom of choice of provider rule?

The “Stepford” answer is that we have our Waivers in NC, which have waived the freedom of choice. In our 1915 b/c Waiver, there are a couple pages that enumerates certain statutes. We “x” out the statutes that we were requesting to waive.

It looks like this:

waiver1

Furthermore, federal law carves out an exception to freedom to choose right when it comes to managed care. But to what extent? It the federal carve unconstitutional?

But…the question is twofold:

  • Would our Waiver stand up to federal court scrutiny?
  • Can our state government waive your rights? (I couldn’t help it).

Let’s think of this in the context of the freedom of speech. Could NC request from the federal government a waiver of our right to free speech? It sounds ludicrous, doesn’t it? What is the difference between your right to free speech and your right to choose a provider? Is one right more important than the other?

The answer is that no one has legally challenged our Waiver’s waiver of the right to freedom of provider with a federal lawsuit claiming a violation of a constitutionally protected right. It could be successful. If so, in my opinion, two legal theories should be used.

  1. A § 1983 action; and/or
  2. A challenge under 42 CFR 431.55(f)

Section 1983 creates a federal remedy against anyone who deprives “any citizen of the United States… of any rights, privileges, or immunities secured by the Constitution and laws” under the color of state law. 42 U.S.C. § 1983. The Supreme Court has explained that § 1983 should be read to generally “authorize[] suits to enforce individual rights under federal statutes as well as the Constitution.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119 (2005).

Section 1983 does not authorize a federal remedy against state interference with all government entitlements, however; “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). But the courts have already held that the freedom to choose your provider is a right.

In 2012, the Seventh Circuit confirmed that § 1983 authorizes Medicaid recipients to sue to enforce the right to freely choose among qualified health providers.

In Planned Parenthood, the court was confronted with an Indiana state law prohibiting state agencies from providing state or federal funds to any entity that performs abortions or maintains or operates a facility in which abortions are performed – regardless of whether there is any nexus between those funds and the abortion services. See Planned Parenthood, 699 F.3d at 967 (7th Cir. 2012). In other words, the law effectively prohibited entities that perform abortions from receiving any state or federal funds for any (non-abortion) purpose.

The Court found that the restrictions violated the Medicaid recipients’ right to freedom of choice of provider.

There are, as always, more than one way to skin a cat. You could also attack the Waiver’s waiver of the freedom to choose your health care provider by saying the NC is violating 42 CFR 431.55.

Notice the last sentence in subsection (d) in the picture above. In our Waiver, NC promises to abide by 42 CFR 431.55(f), which states:

(f) Restriction of freedom of choice—
(1) Waiver of appropriate requirements of section 1902 of the Act may be authorized for States to restrict beneficiaries to obtaining services from (or through) qualified providers or practitioners that meet, accept, and comply with the State reimbursement, quality and utilization standards specified in the State’s waiver request.
(2) An agency may qualify for a waiver under this paragraph (f) only if its applicable State standards are consistent with access, quality and efficient and economic provision of covered care and services and the restrictions it imposes—
(i) Do not apply to beneficiaries residing at a long-term care facility when a restriction is imposed unless the State arranges for reasonable and adequate beneficiary transfer.
(ii) Do not discriminate among classes of providers on grounds unrelated to their demonstrated effectiveness and efficiency in providing those services; and
(iii) Do not apply in emergency circumstances.
(3) Demonstrated effectiveness and efficiency refers to reducing costs or slowing the rate of cost increase and maximizing outputs or outcomes per unit of cost.
(4) The agency must make payments to providers furnishing services under a freedom of choice waiver under this paragraph (f) in accordance with the timely claims payment standards specified in § 447.45 of this chapter for health care practitioners participating in the Medicaid program.

Basically, to argue a violation of 42 CFR 431.55, you would have to demonstrate that NC violated or is violating the above regulation by not providing services “consistent with access, quality and efficient and economic provision of covered care and services.”

So, while it is true that NC has requested and received permission from the Center of Medicare and Medicaid Services (CMS) to restrict access to providers, that fact may not be constitutional.

Someone just needs to challenge the Waiver’s waiver.

Broken Promises and the NC Waiver: You Do NOT Get Your Choice of Provider!!

“One can talk good and shower down roses, but it’s the receiver that
has to walk through the thorns, and all its false expectations.” –Anthony Liccione

In the 1968 Presidential campaign, Richard Nixon stated that “new leadership will end the war” in Vietnam. Also, in a 1968 interview, Nixon said he had “no magic formula” or “gimmick” for ending the Vietnam War. Then, in his memoirs, Nixon stated he never claimed to have such a plan. This is called a broken election promise.

Sadly, Richard Nixon’s broken election promise was not the first, nor would it be the last. We have become used to politicians making election promises and breaking those same promises which got them elected once they are in office.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

“Read my lips: no new taxes.”

Over the last few years, I have written ad nausem about accountability and proper supervision when it comes to the Managed Care Organizations (MCOs) in North Carolina. The other day, I was reviewing some pertinent federal regulations and came across this:

§ 438.52 Choice of MCOs, PIHPs, PAHPs, and PCCMs.

• General rule. Except as specified in paragraphs (b) and (c) of this section, a State that requires Medicaid beneficiaries to enroll in an MCO, PIHP, PAHP, or PCCM must give those beneficiaries a choice of at least two entities.

Obviously, North Carolina is not adhering to the above-referenced requirement.

Pull up the Waiver. In order to offer Medicaid enrollees only one MCO or other such entity, North Carolina would have had to request a waiver of 42 CFR § 438.52.If you rely on Medicaid for behavioral health care and live in Wake County, you have no choice but to rely on the provider network of only entity, Alliance Behavioral Health (Alliance), to receive services. For example, you do not get to choose between Alliance’s provider network and Eastpointe Behavioral Healthcare’s (Eastpointe) provider network. Staying with the same theoretical hypothesis, if your provider was not anointed with the gift of being in Alliance’s network, then you do not get to stay with your provider.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

Similar to President Barack Obama’s contention quoted above, we made similar promises to the Center for Medicare and Medicaid Services (CMS). Our promises are found within our Waivers. We have two Waivers, one for the developmentally disabled population and one for the mentally ill/substance abuse population. Each Waiver waives certain federal exceptions. However, in lieu of the federal requirements, we make certain promises to CMS. In order to waive 42 CFR § 438.52, we made certain promises to CMS in order to circumvent the necessary provisions of 42 CFR § 438.52.

The State sought a waiver of section 1902(a)(4) of the Act:

“The State seeks a waiver of section 1902(a)(4) of the Act, which requires States to offer a choice of more than one PIHP or PAHP per 42 CFR 438.52. Please describe how the State will ensure this lack of choice of PIHP or PAHP is not detrimental to beneficiaries’ ability to access services.”

Here are our promises:

“Under these circumstances, the State does not believe that making only one plan available in each geographic area of the State will negatively impact recipients’ access to care.”

“The LMEs have decades of experience locating and developing services for consumers with MH/IDD/SAS needs, and over the years, have built strong and collaborative working relationships with the providers of these services.”

“These providers support this initiative and consumers have at least as much choice in individual providers as they had in the non-managed care environment.

“Enrollees will have free choice of providers within the PIHP serving their respective geographic area and may change providers as often as desired. If an individual joins the PIHP and is already established with a provider who is not a member of the network, the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.

“If you like your doctor, you can keep your doctor. If you like your health care plan, you can keep your health care plan.”

My two personal favorites among the State’s promises to CMS are: (1) “consumers have at least as much choice in individual providers as they had in the non-managed care environment;” and (2) the PIHP will make every effort to arrange for the consumer to continue with the same provider if the consumer so desires.”

These promises, in reality, are utter horsefeathers.

Over and over my provider clients come to me because one of the MCOs has terminated their Medicaid contract, usually for absolutely no valid reason. Over and over my provider clients tell me that their consumers are devastated by the news that they may lose their provider. I have had consumers contact me to beg me to help the provider. I have had consumers appear in court stating how much they want that particular provider. I have had provider clients cry in my office because their consumers are so upset and regressing because of the news that they may have to find another provider.

Yet, we have promised CMS that consumers have just as much choice in providers than when there was no managed care.

In the words of Dorothy from the Wizard of OZ, “You ought to be ashamed of yourself. Frightening him like that when he came to you for help.”

Similarly, our Medicaid recipients go to their providers for help. They create relationships…trust…bonds. And the MCOs are terminating these very providers, most for invalid and erroneous reasons, and, certainly, without the consideration of our promise to CMS.

But, remember, we are told the PIHPs will make every effort to keep the consumer with the chosen provider…

It would be interesting to do a public records request as to how many providers have been terminated by the MCOs in the last 2 years. Because, even if only 1 provider were terminated in the past 2 years and its consumers still wanted to go to that particular provider, then our State has broken its promise.

Apparently, due to my outspoken positions, DHHS will no longer honor my public records requests, which I think is absolutely preposterous. I am, still, a paying taxpayer last time I checked, which is every pay-day when I only get 60% of my wages. If any of you would submit this public records request, please forward it to me. I would be grateful for the information.

Personal Care Services: Will the Fear of the “F” Word (Medicaid Fraud) Cause PCS in the Home to Be Eradicated???

In my career, I call it the “F” word:

Fraud.

Its existence and fear of existence drives Medicare and Medicaid policies.

It is without question that Medicare and Medicaid fraud needs to be eliminated.  In fact, for true Medicare and Medicaid fraud, I propose harsher penalties.  Think about what the fraudulent provider is doing…taking health care dollars from the elderly and poor without providing services.  Medicare and Medicaid recipients receive less medically necessary services because of fraudulent providers.

Just recently, in Charlotte, on April 9, 2014, V.F. Brewton, of Shelby, N.C., was sentenced to 111 months in prison, three years of supervised release and ordered to pay $7,070,426 in restitution to Medicaid and $573,392 to IRS. On April 8, 2014, co-defendant, R. S. Cannon, of Charlotte, was sentenced to 102 months in prison, three years court supervised release and ordered to pay $2,541,306 in restitution.  See press release.  Ouch!

On November 21, 2013, in Miami, Fla., Roberto Marrero, who ran Trust Care, was sentenced 120 months in prison.  From approximately March 2007 through at least October 2010, Trust Care submitted more than $20 million in claims for home health services. Medicare paid Trust Care more than $15 million for these fraudulent claims. Marrero and his co-conspirators have also acknowledged their involvement in similar fraudulent schemes at several other Miami health care agencies with estimated total losses of approximately $50 million. See article.  Ouch!

However, there are never the stories in the newspapers and media about all the services actually rendered to Medicare and Medicaid recipients by upstanding providers who do not commit fraud, but, instead, work very hard every day to stay up-to-date on regulations and policies and who do not reap much profit for the services provided.  I guess that doesn’t make good journalism.

I recently attended the Association for Home and Hospice Care (AHHC) conference in RTP, NC.  I met wonderful and non-fraudulent providers.  Each provider I met was passionate and compassionate about their job.  The only time money was brought up was to discuss the low reimbursement rates and the low profit margin for these providers.

In fact, one of the speakers even opined that, because of the alleged prevalence of fraud in home health care, the federal and state governments will continue to cut reimbursement rates for home health and hospice until over 50% of the agencies operate at a loss by 2017.  That is a dismal thought!  What happened to our right to pursue a career without intervention?

One provider informed me that, upon his or her information and belief, there is a chance that PCS, which is an optional program under Medicaid, may be wiped out in the near future by the General Assembly (PCS for home health and assisted living facilities, not the recipients covered by the Waiver).

What are personal care services (PCS)?

In the world of Medicaid and Medicare, there are a number of different types of PCS.  No, actually, I think it is more apropos to say there are a number of different PCS recipients in the world of Medicaid and Medicare.

First, the definition/eligibility requirements:

Personal Care Services (PCS) are available to individuals who have a medical condition, disability, or cognitive impairment and demonstrate unmet needs for, at a minimum three of the five qualifying activities of daily living (ADLs) with limited hands-on assistance; two ADLs, one of which requires extensive assistance; or two ADLs, one of which requires assistance at the full dependence level. The five qualifying ADLs are eating, dressing, bathing, toileting, and mobility.  See DMA website.

PCS are provided to developmentally disabled people under the 1915 b/c Waivers, people who reside in nursing homes and long-term assisted living facilities, and people who qualify to receive PCS in their homes.  For purposes of this blog, I am writing about the latter three types of recipients.  All 50 states allow PCS for qualified individuals, but the qualifications differ among the states.

In this day and age, the “F” word drives Medicaid and Medicare policies.  Without question Medicaid fraud exists.  Whether Medicaid fraud is as prevalent as some may believe, I am not sure.  I have certainly witnessed honest providers accused of Medicaid fraud.

And home health care providers are viewed by some, generally, as the providers who can most easily commit Medicaid fraud (with which I do not agree, but must concede that home health care is more difficult to monitor).  For example, a home health care provider goes to a person’s home and provides services.  Who would know whether the home health care provider was billing for services on days he or she did not go to the recipient’s house? Not the recipient, because the recipient has no idea for what dates the provider is billing.  Unlike an assisted living facility or nursing home that is easier to monitor and would have the documentation to show that the recipient actually lived in the facility.

Because of the alleged prevalence of fraud in home health care, apparently, (and with no independent verification on my part) some in North Carolina are questioning whether we should continue to reimburse PCS with Medicaid dollars, particularly as to home health.  But if we stopped reimbursing for PCS in the homes, what would be the alternative?  How would it affect North Carolinians? Would eliminating PCS save tax dollar money? Stop fraud?

When we evaluate the effects of whether to continue to reimburse for PCS with Medicaid dollars, we aren’t only talking about those served by PCS, but also the companies and all employees providing the home health.  In 2012 in NC, approximately 40,000 were employed in home health.

Why is home health care important (or is it?)? Should we allow the “F” word to erase PCS  in home health?

What is the alternative to home health?  Answer: (1) Assisted living facilities?  (2) Nursing homes? (3) A dedicated, family caregiver?  (4) Nothing?

While there are, I am sure, many reasons that PCS in home health care is vital to our community, for the purposes of this blog, I am going to concentrate on cost savings to the taxpayers.  Home health costs us (taxpayers) less money than other alternatives to home health.

Also, understand please that I am not advocating that everyone should receive home health instead of entering nursing homes or assisted living facilities.  Quite the contrary, as both nursing homes and assisted living facilities are essential to NC.  I am merely pointing out that all the services (home health, nursing homes, and assisted living facilities) are important.

What is the difference between assisted living and nursing homes?

An assisted living community provides communal living, usually with social activities, a cafeteria, laundry service, etc.  I always think of my grandma at Glenaire in Cary, NC.  She plays bridge, attends a book club, and even takes a computer course!  She actually joined Facebook a couple of years ago!

A nursing home, on the other hand, provides 24-hour supervision by a licensed or registered nursing staff.  Generally, the folks eligible to be admitted into an assisted living facility will be eligible to receive PCS (see the above definition/eligibility requirements).  So, logically, the clientele in an assisted living facility receiving PCS could, in some cases, also be eligible to receive PCS in their home.  Obviously a number of factors come into play to determine whether a person goes into an assisted living facility versus staying at home and receiving home health care: eligibility, family issues, money, condition of your home, money, desire for independence, money, health issues, and money.

Because of the level of supervision and skill required in a nursing home, a nursing home will be much more expensive than an assisted living facility.  Insomuch as the assisted living facility will be less expensive than a nursing home, home health care, because you are paying for your own room and board, will be cheaper than both.

The average national cost for an assisted living facility in 2012 was $3,550/month.  That’s $42,600/year.  The average cost for an assisted living facility in 2012 in NC was $2900/month.

The average cost for a nursing home in NC for a semi-private room is $73,913 and $82,125 for a private room.  That’s $225/day for a private room.  For that price, you could get a room at a Ritz Carlton! (albeit not in a touristy area).

You think nursing homes are expensive in NC? Don’t move to NY!! In NY, for a semi-private room it costs $124,100/year and $130,670/year for a private room ($358/day!). Florida is a bit more expensive that NC too.  In Florida, on average, a semi-private room in a nursing home costs $83,950 and a private room is approximately $91,615.

On the flip side, the average cost for a homemaker is $38,896.  A home health aide costs, on average, $40,040.

If, in fact, NC ceases to reimburse PCS in home health, many of the people residing in their homes and relying on Medicaid-covered PCS will be forced to leave their homes for, in some case, more expensive alternatives.

Though the odd contrast may not be easily seen, there is an argument that erasing PCS in the home may actually cost the tax payers more.  Not to mention that erasing PCS in home health would drive agencies bankrupt and staff jobless.

Remember, I have no verification that our General Assembly would or would not eradicate PCS in the home environment.  It was mere speculation in a conversation.  But the conversation got me thinking about the delicate balance of Medicaid services in NC.  And how one abrupt and drastic change could change our health care system and capitalist ideas so quickly.

And, arguably, all because of the speculative “F” word.  What is that political phrase we heard so much in the last elections? Oh, yes, maybe we should use a scalpel, not an ax?

MCOs Terminating Providers and Restricting the Freedom of Choice of Providers for Medicaid Recipients: Going To Far?

Who remembers Dennis Kozlowski?  He is the former CEO of Tyco International, and his net worth is estimated at $600 million.  However, his residence? A mansion? On his own island?

Nope.  He is currently serving 8.33 to 25 years at the Mid-State Correctional Facility in Marcy, New York.

In 2005 he was convicted of crimes related to $81 million in unauthorized bonuses and the payment by Tyco of a $20 million investment banking fee to Frank Walsh, a former Tyco director.  See Wikipedia.

So here you have this “rich-as-crap,” millionaire…going about his business, no doubt believing that he is smarter than anyone else and that he will never get caught.  Then all Hades breaks lose and he goes from Armani $10,000 suits to an orange, cotton jumpsuit.  Talk about riches to rags!

Now, I am by no means comparing Kozlowski’s criminal actions to NC managed care organizations (MCO).  By no means.  I am merely demonstrating that it is easy to continue doing the wrong thing…UNTIL you get caught.

Here’s a less dramatic example:

My eight-year-old has a hard time with food.  She eats slowly and we constantly have to tell her to eat.  (We think she has sinus problems and can’t taste the food…which we are looking into).  Anyway, last week when we cleaned her room, I found a stack of bags of carrots.  Like 10 bags of carrots.  I had been putting bags of carrots in her lunch and each day, she was hiding the carrots under the bed.  She didn’t want me to know that she wasn’t eating her carrots.  Again, she thought she wouldn’t get caught, so she kept doing the wrong thing….UNTIL she got caught.

Here in North Carolina, we have now set up this MCO system for Medicaid recipients needing behavioral health care services.

These MCOs have only gone live this past year.  These are new entities.  Our 1915 b/c Waiver (Waiver), which gives the MCOs the authority to do certain things is new. 

But, what if, these new entities are NOT following the Waiver?

Won’t they just keep not following the Waiver until they get caught?

That’s what Kozlowski did.  That’s what my 8-year-old did.

If you know Medicaid, you understand that federal law requires a “single state entity” to manage Medicaid.  In North Carolina the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) is our “single state entity.” 

The Center for Medicare and Medicaid Services (CMS) is the federal agency that has to “ok” our State Plan and all Waivers.  The State Plan outlines the organization and function of DMA.  CMS has to authorize our State Plan, including each and every amendment to our State Plan.  Our State Plan is basically “The Law of Medicaid in NC.”  NC is required to follow the State Plan or risk losing federal funding for our Medicaid system.

Our Waivers, on the other hand, are our allowable exceptions to “The Law of Medicaid in NC.”  Think of the State Plan as the general rule and the Waivers as the exceptions.  Generally, all cars must stop at a red light.  The exceptions are police cars, ambulances and fire trucks with the sirens blaring and lights flashing.

Our State Plan states, generally, DHHS, DMA is the single state entity for Medicaid and must make all administrative and managerial decisions for the program.  The 1915 (b)/(c) Waiver says…well, the exception is that the local management entities (LMEs) or managed care organizations (MCOs) have SOME responsibilities. 

BTW: People in NC keep calling the MCOs:”LME/MCOs.”  In fact, I was at a meeting during which a a representative from DHHS called the MCOs “LME/MCOs.”  The woman asking the question with the microphone asked, “Why don’t we just drop the “LME” portion and call them “MCOs,” not “LME/MCOs?”  To which the gentleman answered, “Old habits are hard to break.”

Our 1915 b/c Waiver “waives” Section 1902(a)(4) of the Social Security Act, the freedom of choice of providers.  Generally, a Medicaid recipient has the freedom to choose a provider from whom he or she wants to receive services.  Our Waiver says, “Ok, Medicaid recipient, you can choose from any provider within your MCO’s catchment area.”  Meaning, if Sally the Medicaid recipient lives in Wake county, Sally could choose any provider within Alliance’s catchment area, Cumberland, Durham, Wake and Johnson counties.

But the Waiver does not stop there.

In order for the federal government to allow NC to place this restriction on Medicaid recipients, because it is a restriction, NC had to make some promises.

We promised in our Waiver to the feds:

“These providers support this initiative and consumers have at least as much choice in individual providers as they had in the non-managed care environment.”

Hmmmmmm.

I do not have exact numbers, but I would wager that Alliance has terminated, refused to contract with, or denied a contract to at least 100 providers.  Considering in the recent RFP Alliance chose so few providers to serve its catchment area, I can only imagine how many providers no longer can provider services within Alliance’s catchment area.  100? 200?  See my blog: “An Ominous Cloud Looms Over NC’s Mental Health System! And Radix Malorum Est Cupiditas!”

Is terminating providers giving the consumers as much choice as they had in the non-managed care environment?

I think not.

 But who is going to stop them from continuing down this path of eliminating choice of providers within the catchment areas?

Obviously, DHHS has proved itself to be incapable of such a feat.

So the MCOs are going about their businesses…thinking no one will ever catch them…that they are free to do whatever they want…just like Kozlowski (without the criminal behavior…we hope)…just like my daughter hiding the carrots….

It’s human nature.

We just keep doing the same things over and over…UNTIL someone tells us we have to change. 

Who will tell the MCOs to follow the Waiver?  Will it take a judge?

What is the Difference Between the 1915 b/c Waiver and Technical Guide?

Do you know the difference between the 1915 b/c Waiver and the Technical Guide?

You should!  (If you provide Medicaid mental health or substance abuse services or services to developmentally disabled persons).

What is the 1915 b/c Waiver (the “Waiver”)?

It is a document (a very large document) that all health care providers, recipients and State agencies must adhere to in order for Medicaid recipients to receive the medically necessary services needed.  The consequence of anyone in NC not following the Waiver? The feds can come and recoup Medicaid money…or perform any other allowable remedy/punishment.  Basically, everyone in NC (germane to Medicaid) must follow the Waiver or answer to the federal government.

The Waiver applies to Medicaid recipients suffering mental health issues, developmental disabilities, and substance abuse.

The Centers for Medicare and Medicaid Services (CMS) granted the North Carolina Waiver, which operates under Section 1915 (c) of the Social Security Act. This Waiver operates concurrently with a 1915 (b) Waiver, the North Carolina Mental Health/Developmental Disabilities/ Substance Abuse Services Health Plan (NC MH/DD/SAS Health Plan).

In sum, the Waiver is a document approved by the federal government (CMS). The Waiver applies to Medicaid recipients suffering mental illness, developmental disabilities and substance abuse.  We must adhere to the Waiver…or else.

So what is the Technical Guide?

First, what is it not? If the Waiver is Medicaid “law,” the Technical Guide is not.

When you were in high school, did you ever read Cliffsnotes?  You know, your English teacher assigns “The Great Gatsby,” but you have so many other important things to do in high school other than to read “The Great Gatsby.” So you get the Cliffsnotes.  Easy enough, right?

Until your teacher tests on details in “The Great Gatsby” that were not in the Cliffsnotes…

I am NOT (capital N.O.T.) comparing the Technical Guide to Cliffsnotes.  The Technical Guide is approximately 350 pages.  If Cliffsnotes were 350 pages long, then the actual book would be over 1000 pages.  If the Division of Medical Assistance (DMA) were attempting to draft an abridged version of the Waiver with the Technical Guide, then someone grossly misunderstood the word “abridged.”

DMA prepares the Waiver, and (although I have never been present for the process of its creation) I believe that DMA works extraordinarily hard on the Technical Guide.

Despite, DMA’s hard work, the Technical Guide, generally, is  not identical to the Waiver.

If the Technical Guide were identical to the Waiver, then the Technical Guide and the Waiver would be identical, right?

The Technical Guide is supposed to be a “user-friendly” rendition of the Waiver.  Because, folks, I am here to tell you, the Waiver is NOT “reader-friendly.”

But….beware….if it comes down to a legal argument in a court of law, the Technical Guide is not law…the Waiver is law.  So if you are having your employees read the Technical Guide in lieu of the actual Waiver, you MAY be in violation of the Waiver, even though you meet the Technical Guide criteria.

For example, in the Technical Guide, for authorization of In-Home Intensive Supports, for prior authorization, a Medicaid recipient could use (for prior authorization):

“Until the participant has a Supports Intensity Scale assessment [SIS assessment], the NC SNAP is used and the participant must have a score of at least 4 or 5 in Medical and/or Behavioral.”

According to the Technical Guide, a SNAP score can be used in order to receive authorization for In-Home Intensive Services.

However, the Waiver says nothing about a SNAP score.  According to the Waiver, the ONLY document that can be used for prior authorization for In-Home Intensive Supports is the SIS assessment.

Period.

Not the SNAP!

Ambiguity? I think so…

But, when the English teacher tests on the details of “The Great Gatsby” that were not found in the Cliffsnotes, you fail.

Similarly, when you only follow the Technical Guide, you may find yourself (legally) holding the “Cliffsnotes of the Waiver.”

And liable.

The “Single State Agency” Medicaid Requirement: The Buck Stops With Whom?????

What is THE most important law? I’m sure most people would have a differing opinion.  Maybe you think the most important law is that it is against the law to murder a person. Or to not drive drunk.

Personally, I think the most important law of the United States begins, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  The Constitution of the United States.

Well, in the Medicaid arena, in my opinion, the most important law is the “single state entity” requirement.

Why is the “single state entity” requirement so important? 

Have any of you tried to read Title XIX of the Social Security Act? Or the 1915(b)(c) Innovations Waiver? The State Plan?

If you have, then you know how difficult Medicaid laws, rules and regulations are to read, much less understand.  It’s a bit like reading Chaucer in its original language, Middle English, in kindergarten…not impossible, you can sound out all the words…but, in the end, you have no idea what it was you just read.  Wife of whom?

What if we allowed 10 different companies, each with different employees, to implement/interpret Medicaid laws, rules, and regulations?

Each of the 10 companies would read the Medicaid laws, rules and regulations differently.

We would not have a statewide consistent Medicaid system.

Medicaid is tough enough, we, at least, need one agency to implement and interpret all of Medicaid.

Another example is if, suddenly, we had no president or federal government.  And all 50 states’ governors tried to run the country, as a country and not 50 independent states.  We would, obviously, have 50 different “leaders” trying to run one country with 50 different ideas as to how the country should be run.  There would be no nationwide uniformity.

Hence, the “single state agency” requirement.  DHHS must implement/administer/interpret all Medicaid decision for the sake of uniformity.

Not only is the “single state agency” requirement logical, it is federal law.

42 U.S.C. 1396 a(a)(5) requires states participating in the Medicaid program to designate a “single state entity” to operate the Medicaid program.  

In North Carolina, that “single state entity” is the Department of Health and Human Services (DHHS).

Remember the sign on Harry Truman’s desk? “The Buck Stops Here!” Meaning, as a president, President Truman understood that anything that went wrong in any federal department was on his shoulders.  He was the captain of the ship.  He was the big cheese. The buck stopped with Truman.

In NC Medicaid, the buck stops with DHHS.

According to federal law, the “single state entity” may contract with entities, such as Managed Care Organizations (MCOs), Recovery Audit Contractors (RACs), etc. to assist with certain functions of the Medicaid program.  But…that “single state entity” CANNOT delegate its authority to “issue policies, rules, and regulations on program matters.”  42 C.F.R. 431.10.

Moreover, the “single state entity” MUST NOT allow a contracted company to have authority to change or disapprove an administrative decision of the “single state entity.”  42 U.S.C. 1396a(a)(5) states that “either provide for the establishment or designation of a single State agency to administer or to supervise the administration of the plan.”

Similarly, in K.C. v. Shipman, the 4th Circuit Court of Appeals states that:

“If other State or local agencies or offices perform services for the Medicaid agency, they must not have the authority to change or disapprove any administrative decision of that agency, or otherwise substitute their judgment for that of the Medicaid agency with respect to the application of policies, rules, and regulations issued by the Medicaid agency.  42 C.F.R. § 431.10(e)(3).” (emphasis added).

Ok, pretty clear, right?

Then how can an MCO determine that a provider’s Medicaid contract should be terminated without DHHS’ authorization (which, I believe, is a substitute of judgment in applying policies)? How can an MCO determine that a Medicaid recipient’s services should be reduced (another substitution of judgment in applying policies) without DHHS’ authorization?

If you ask me, the MCOs cannot terminate a provider’s Medicaid contract or reduce services without DHHS’ authorization.  Substituting an MCO’s judgment in applying Medicaid policies is a violation of the “single state entity” requirement.

Yet….the MCOs are doing just that.

Even more scary is the recent MCO Communication Bulletin #55, dated August 2, 2013, which states:

MCO Communication Bulletin #55

Date:                August 2, 2013                                                            

To:                   LME-MCO CEOs

From:               Courtney Cantrell, Assistant Director, Behavioral Health Section

Subject:         Provider Appeals

Currently DMA is reviewing LME-MCO contract terminations and service denials when appealed due to LME-MCO manuals stating that appeals of denials should come to DMA prior to Office of Administrative Hearings (OAH).  DMA should not be a part of the LME-MCO appeals process.  We ask that you please correct your manuals by August 7, 2013, and share with your contract managers so that these appeals can be appropriately routed.

Yes, I agree, the author could have written this Communication Bulletin is a way that would have been easier to read. But, maybe that is the point.

I interpret this bulletin to say:

Right now, the MCO manuals instruct MCOs to send DMA all contract terminations and service denials prior to going to the OAH (litigation).  But, DMA does not want to be a part of the appeal process anymore.  Therefore, revise all MCO manuals to reflect that MCOs no longer need to send DMA contract terminations and service denials, even if those denials and terminations are appealed.

I also infer from this language that, since the inception of MCOs, DMA has not reviewed any contract terminations or service denials unless these denials and terminations are appealed.

 DMA does not review prior to the MCO terminating or denying services???? Where is the supervision? Where is the “single state agency?”

And then, even scarier, Bulletin #55 seems to say that DMA wants to be involved even LESS.

In essence, we have 10 MCOs, 10 jurisdictions, 10 interpretations of Medicaid laws, rules and regulations.  And no statewide uniformity.

I guess the buck stops with East Carolina Behavioral Health (ECBH)…and MeckLINK…and Alliance…and Smoky Mountain Center…and Cardinal Innovations…and Centerpoint Human Services…and CoastalCare…and EastPointe…and Partners Behavioral Health Management…and Sandhills…and (at least for a short time) Western Highlands…

That is a lot of bucks.

Mental Illnesses Pose Stigmata and Gov. McCrory States NC Mental Health System May Be Worst in Country

As to mental illnesses pose stigmata…duh. However, Gov. McCrory admitting that North Carolina’s mental health system may be the worst in the country…FINALLY!!!

Granted, I am not happy that NC may be the worst mental health system in the country.  But in order to fix something, you must acknowledge it is broken, or, in this case, a royal cluster.

Click here: Video Landing Page – WNCT | 9 On Your Side Greenville NC & Eastern NC News

Mental health takes center stage in Washington

…BUZZ ABOUT THE NEED TO ADDRESS MENTAL HEALTH PROBLEMS IN AMERICA. JEFF VARNER ……THE ISSUES OF GUN CONTROL AND MENTAL HEALTH AWARENESS.’ “9 ON YOUR SIDE” HAS INVESTIGATED NORTH CAROLINA’S MENTAL HEALTH SYSTEM. AND OUR INVESTIGATION  Jun 03, 2013

You will hear on this 9 on your side newscast video

following the commercial:

 

  “Governor McCrory came out of nowhere – admitted our

 Mental Health System is not only broken 

 it might be one of the worst systems in the county.”

 

Secretary Aldona Wos: Inherited a Medicaid Money Pit

 (It’s Not All Her Fault)

Hitler Freaks About NC Medicaid!

I did not produce this satirical video. Thanks to Geoffrey Zeger for his creativity!

NC Innovations Waiver: Not So Unbiased. It Matters the Disorder!?

There is a waiting list for the Innovations Waiver. I don’t know about you, but when I go to the grocery store and I am in line to check out, if someone butts in front of me without my permission (because they have one item) I call that “cutting in line.”  Apparently “cutting in line” is allowed in the Innovations Waiver.

The North Carolina Medicaid Innovations Waiver 1915 (b)/(c) Medicaid Waiver for MH/DD/SA Services supposedly set in place to serve those Medicaid recipients suffering from mental health, substance abuse, and developmental disabilities (MH/DD/SA).

Basically, if you are a woman in NC and have the possibility of having a baby, go ahead and apply for the NC Innovations Waiver at age 15.  Since there is a 7-10 year waiting period, if you happen to give birth to a developmentally disabled child within 7-10 years, then your child will be covered by the Innovations Waiver.

On the other side, if you do not apply pre-pregnancy, your developmentally disabled child will be 7-10 BEFORE the child would be covered by the Innovations Waiver.

On CNN today, I heard that treatment for an autistic child runs approximately $80,000/year.  That number is astronomical. If I made millions, MAYBE, $80,000 would be nothing to me.  But let’s be realistic.  How are these families with autistic children paying $80,000/year for health services? I know for a fact, I would not be able to fund that amount.

So, what if you have a “moderately” autistic child with limited funds? You would think that if you place your child on the Innovations Waiver at age 0, that your child would receive Waiver services within 7-10 years, according to the “wait list,” right?

Wrong.  The Innovations Waiver waiting period is not based on date. As in if you file your application in 2001 and another person files in 2005, the 2005 applicant may be bumped above you depending on subjective ideas on what determines “moderate” or “severe.”

Let someone intricately involved with the waiver explain:

A wonderful woman with an adult, mentally-handicapped child emailed the following to me:

“I was quite surprised to learn that the Registry of Unmet Needs (waiting list) for the NC Innovations 1915(c) waiver is NOT a date based, first come/first served, list by each of the 11 LME/MCO’s.  It is a date based listed by each and every one of the 100 NC Counties.  I learned this at the SMC (Smoky) Board of Directors meeting last Thursday (3/28/2013.)

If you are FIRST ON THE LIST in a County that is “over-served” based on “per capita” allocation of waiver slots, then you will not get one of the slots that were just allocated to your LME/MCO.

Think about that.  Here in Alexander County or Caldwell County a lot of people (that is who the “per capita” is: people) have lost jobs and moved away.  Those of us with slots, didn’t move.  It now looks as if Alexander County and/or Caldwell County are over-served!  And, think about this, those of us with slots CANNOT move because the slot belongs to the LME/MCO and not the person.

I will never understand how people with power can make such hateful decisions.  Who would have decided 100 lists is the correct way to get services to IDD people who are waiting for those services and who are eligible for “institutional level of care?”  I am begging you all to be the “truth speaking to power.”  I have argued repeatedly that the only list that should exist is a statewide list that is date based WITH exceptions for URGENT severe needs or emergencies.

Truth Speaking to Power:  Call the Governor!  Constituent Services:  919.733.5811.  I called.  I said:  “I have an urgent Medicaid issue I would like to make the Governor aware of.”  I explained the problem with 100 lists.  I asked the Governor to find out who the actual live human being was that made such a hateful, mean spirited decision.  I asked for an opportunity to speak with the Governor.  I also explained that I was going to send an email and I hoped other people would call, too.”

 

Maybe the Innovations Waiver allows “cutting in line,” but I still think its rude. A moderately severe autistic child needs help too.  And who determines which child is “moderate?”