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An Ominous Cloud Looms Over NC’s Mental Health System! And Radix Malorum Est Cupiditas!

“There is an ominous cloud over North Carolina’s mental health care system that many fear is limiting access to care and treatment by those who need it the most,” wrote Jason deBruyn in Friday’s Triangle Business Journal article titled, “Mental Health Block.”

TBJ Pic

(Thanks, Jason, for the nice spread:) )

Two phrases that can never be good when linked together: “an ominous cloud” and “mental health care system.”  Upon reading “ominous cloud,” I get this dark (dare I say ominous?), dreary outlook on whatever the “ominous cloud” is  over.  Then to discover that the “ominous cloud” is over our mental health system here in NC, I get goosebumps and a pit in my stomach (and a bit of disgust at the sheer ineptness of the Department of Health and Human Services (DHHS)).

What is causing that “ominous cloud” over our mental health system? Well, according to Jason, the managed care organizations (MCOs) that were implemented across the state only this past year.

What are these MCOs you talk of?

The MCOs were established to manage the Medicaid mental health, developmentally disabled, and substance abuse services in NC.  If you want mental health services or are attempting to get prior authorization on behalf of a Medicaid recipient, then the buck stops with the MCO.  See my blog: “NC MCOs: The Judge, Jury and Executioner.” Or “NC MCOs: Accountability Must Be Somewhere!”

Here is a list of the MCOs along with the “correct toll free number” in case you wanted it:

LME-MCO CORRECT TOLL FREE NUMBER
Alliance Behavioral Health 1-800-510-9132
Cardinal Innovations Healthcare Solutions 1-800-939-5911
CenterPoint Human Services 1-888-581-9988
CoastalCare 1-855-250-1539
East Carolina Behavioral Health (ECBH) 1-877-685-2415
EastPointe 1-800-513-4002
MeckLINK 1-877-700-3001
Partners Behavioral Health Management 1-888-235-4673
Sandhills Center 1-800-256-2452
Smoky Mountain Center 1-800-849-6127
Western Highlands Network 1-800-951-3792

Going back to the “ominous cloud…”

Jason writes further that “under the state’s new payment system, MCOs have the unbridled authority to terminate providers in an attempt to keep costs down – with little accountability for the process.”

The only word I would change is “little” to “no.” But, then, maybe Jason was referring to the little accountability as arising from advocates such as myself who are fighting for the providers.

Have I not been saying this all along?  The MCOs can terminate providers with little (or no) accountability!! To save money!!

And who suffers?? The providers, yes.  And the Medicaid recipients!!   “Patients aren’t going to know where to go to access services,” Goldston says. “Those patients are going to suffer.”

Why? Why are these MCOs terminating providers and denying services to our most-needy population??  Have they no heart? No conscience?

One word answers all these questions:

Money

Radix malorum est cupiditas, meaning, in Latin, greed is the root of all evil.  In the Bible, 1 Timothy 6:10, starts “For the love of money is the root of all kinds of evil…”

“MCOs register as not-for-profit organizations and receive fixed amounts of money from the state, called their “capitation.” Unlike physical health care providers, when Medicaid patients receive mental health services, their providers bill these MCOs instead of the N.C. Department of Health and Human Services. If an MCO doesn’t spend up to its capitation level, it keeps the remainder. And therein lies the problem, say provider advocates,” writes Jason. (emphasis added).

And he is absolutely correct!

What was the MCOs’ response?

“The myth that we are trying to eliminate every provider in our network is not an accurate statement,” says Rob Robinson, chief operating officer for Alliance Behavioral Healthcare, the MCO that covers Wake, Durham, Johnston and Cumberland counties.

Mr. Robinson’s comment, however, is incorrect on, at least, two fronts: (1) the “myth” is not that the MCOs are trying to eliminate every provider; and (2) it is no myth.  The MCOs are, without question, terminating as many providers from the networks as possible without the appearance that services will not get rendered.  The MCOs need a certain number…just to appear that services are not getting cut.

So what is that magic number?

A client informed me a couple of months ago that Smokey Mountain Center (SMC) told him that SMC wants two providers per service per county.  If correct, hundreds and hundreds of providers will be put out of business.  And, hello…I thought the current Republican administration was pro small business!

Alliance has chopped its provider network recently.

Just recently, Alliance called for Requests for Proposals (RFPs) from all contracted providers within its catchment area.  Kinda like a tryout.  When I was in college at NCSU, I was on the cheerleading team.  I will never forget being a freshman and learning these routines that I would have to perform in front of a judge’s panel.  Literally hundreds of young men and women were all learning the same routine…all to perform for the tryouts.  In the middle of learning the routine with hundreds of people, I looked around and realized that only 8 girls and 8 guys would be chosen.  Which meant 90% of the people there would not be on the team.  I tried to remove the thought from my head.

When the D-Day arrived, there was simply a white piece of paper taped to the gymnasium’s window on the outside for anyone to see.  I had to walk up to the piece of paper, shuffle through the small crowd surrounding it, ignore others’ tears and congratulations, and look for my name.

Holding my breath, I searched for “Knicole Carson” (my maiden name). And I did not see it.  For a moment, I was crushed.  Then I saw “Nicole Carson.”  My name was on there, just misspelled.

What does college cheerleading tryouts have to do with NC Medicaid?

Alliance’s RFPs created a provider tryout.  Hundreds submitted.  Only a few were chosen.  Those few chosen were written on a piece of paper for all to see, and providers had to scan the list to see if they were chosen.

For Wake county, Alliance decided to award a 1 year contract for community support team (CST) to only 6 companies.  For the entire county of Wake, Alliance has determined that only 6 companies may provide CST to Medicaid recipients (with a 1 year contract).  Only 6 names were on the list.

For Durham county, Alliance decided to award a 1 year contract for CST to only 5 companies.  For the entire county of Durham, Alliance has determined that only 5 companies may provide CST (with a 1 year contract).  Only 5 names were on the list.

Now let’s go back to Mr. Robinson’s comment:

“The myth that we are trying to eliminate every provider in our network is not an accurate statement,” says Rob Robinson, chief operating officer for Alliance Behavioral Healthcare, the MCO that covers Wake, Durham, Johnston and Cumberland counties.

You are right, Mr. Robinson, you aren’t trying to eliminate “every provider.”  Just the ones that Alliance, in its subjective discretion, doesn’t want to deal with (I don’t care that I ended the sentence in a preposition).

Oh, and what about our State Plan?

Our State of North Carolina MH/DD/SA  Health Plan Renewal, states, in pertinent part, as an answer regarding concerns as to provider choice with MCOs, “network capacity studies and gap analyses were conducted by Cardinal Innovations Healthcare Solutions (CIHS) annually and prior to expansion the coverage area, and by the new PIHPs prior to start-up, as required. Access and provider choice appear to be as good as or better than it was prior to waiver implementation, although there is room for improvement in several areas.” (emphasis added).

Obviously, that was written a while ago and Cardinal, an MCO, was the entity conducting the study (cough, cough…bias…cough).  Regardless, we told the federal government that “provider choice appears to be as good or better than it was prior implementation.”  Are you kidding me???

How many providers didn’t make Alliance’s cut?

How many providers have MeckLINK terminated? Smokey Mountain?

Jason deBruyn was dead on when he said, “There is an ominous cloud over North Carolina’s mental health care system that many fear is limiting access to care and treatment by those who need it the most.”

The Future of NC Medicaid Behavioral Health: Will We Soon Be Down to Eight MCOs? Two More Monkeys Jumping off the Bed?!

Remember the song “10 Little Monkeys Jumping on the Bed?”

Ten little monkeys jumping on the bed.
One fell off and broke his head.
Mama called the doctor and the doctor said,
“No more monkeys jumping on the bed!”

Nine…Eight…Seven…Six…Five…Four…Three…

I used to love that song as a kid.  I have two siblings and I distinctly remember our jumping-on-the-bed-game-while-trying-to-push-the-others-off-game.  Many times we would sing “10 Little Monkeys Jumping on the Bed,” while trying to push our siblings off the bed.

Here in North Carolina we started with 11 managed care organizations (MCOs) across NC to manage behavioral health care for Medicaid recipients.

MCO map

See the map? We began with 11 MCOs.  Today, we have 10 (Western Highlands Network (WHN) is no more) with strong possibilities of reducing the number of MCOs to 9…and then 8.

Rumor has it that Centerpoint Human Services (Centerpoint) and MeckLINK Behavioral Healthcare (MeckLINK) are on the brink of nonexistence.  “One fell off and broke his head.”

Centerpoint and MeckLINK are, however, moving forward to nonexistence in entirely different ways.  Centerpoint is looking to merge with two MCOs.  Both Partners Behavioral Health Management  (Partners) and Smoky Mountain Center (SMC) are getting updates as to Centerpoint’s merger plans.  Will Centerpoint break up its catchment area and merge with 2 MCOs? Or are those 2 MCOs the contenders?  Not sure. But either way, Centerpoint will be eliminated in the near future.

If SMC absorbed Centerpoint entirely, SMC will be HUGE!!

SMC began with Alexander, Alleghany, Ashe, Avery, Caldwell, Cherokee, Clay, Graham, Haywood, Jackson, Macon, McDowell, Swain, Watauga and Wilkes Counties (15 counties).  Then SMC ate up WHN and acquired Buncombe, Henderson, Madison, Mitchell, Polk, Rutherford, Transylvania and Yancey counties. (15 + 8 = 23 counties).

Centerpoint manages behavioral health care for Forsyth, Stokes, Davie and Rockingham counties.

(15 + 8 + 5 = 28 counties).  Over 1/4 of NC’s counties.  The MCO map would be dominated by dark blue, and, as North Carolinians, let me ask you, do we want our state dominated by dark blue? What about Wolfpack red? 

Here is the MCO map, as of October 2013:

October 2013 MCOs

Partners’ catchment area is light yellow and includes Burke, Catawba, Cleveland, Gaston, Iredell, Lincoln, Surry, and Yadkin counties (all in the west and bordering SMC’s catchment area).  If SMC continues to expand, like Stephen King’s “The Blob,” SMC may ooze into Partners. 

Unlike Centerpoint, at least on paper, MeckLINK is not willingly jumping off the bed and breaking its head.  MeckLINK is the only MCO run by a county (Mecklenburg county).  See the lone red county? In May, state lawmakers passed a bill that says a county can’t run its own organization.  Mecklenburg County Commissioners voted last Tuesday to work out a deal with Cardinal Innovations Healthcare Solutions (Cardinal) or dissolve MeckLINK when its contract expires next April.

Cardinal’s catchment area is purple and includes 15 counties.

But do not underestimate the power of usurping MeckLINK, even though it is only one county.  Mecklenburg county is one of NC’s most populous counties, which means it receives a hefty Medicaid budget.

Ten little MCOs jumping on our heads
One fell off; its assets in the reds,
DMA called the doctor and the doctor said
No more MCOs jumping on our heads.
 
Nine little MCOs jumping on our heads…

So which MCOs will survive? How soon until we only have 8 MCOs? Will all the MCOs be replaced with out-of-state, huge MCOs?  Will the future MCOs manage all Medicaid services?  Will there be carve-outs?  These are unanswered questions as we embark into the future of NC Medicaid managed care. 

One thing we do know is we started with 11 MCOs (all of whom were deemed solvent and competent by a state contractor) and, not even 1 year later, WHN falls…MeckLINK falls…and Centerpoint falls.

11…10…9…8…

Maybe the 11 MCOs were not solvent and competent in the first place.  Why else would the MCOs keep jumping off and breaking their heads?  Silly monkeys.

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

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

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

Let me explain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Strong language!

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

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

Here is the chart depicting those results:

Compliance chart2

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

I mean…Wow! Wow! Wow! Wow! Wow!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The next chart demonstrates the MCO’s solvency.

Solvency

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

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

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

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

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

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

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

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

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

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

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

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

Zombie-like.

Stepford-like.

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

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

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

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

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

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

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

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

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

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

Me?

You?

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

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

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

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

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

I do not know.

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

Other legislative entities have done this.

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

NM legislature

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

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

Then…

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

Then…

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

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

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

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

Mecklenburg county

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

See article.

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

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

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

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

DEMAND ACCOUNTABILITY!!

Let our elected officials know that:

There is NOT statewide consistency with the MCOs. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NC Taxpayers Demand Accountability as to Behavioral Health Care Medicaid Funds (And That Medicaid Recipients Reap the Benefit of Such Funds).

I ask you, why do employees of an MCO receive better health care plans with Medicaid dollars than a Medicaid recipient with Medicaid dollars?

The State of North Carolina is accountable to me, and every taxpaying citizen, for taxes spent. 

Similarly, executives of a corporation owe a duty to shareholders to account for stock crashing.  Remember Enron? What a disaster!

Enron has been dubbed the biggest audit failure.  Enron shareholders filed a $40 billion law suit after the company’s stock price, which achieved a high of US$38.44 per share in mid-2000, plummeted to less than $1 by the end of November 2001.  And why did the shareholders sue?  Because they lost money?  Well, yes, but it is much more.  The reason the shareholders lost money is because the executives of Enron owed a duty to the shareholders, basically, to be accountable to report correct data on financials.

Apparently, Enron’s financial statements were complex and confusing to shareholders.  It has been said that from 1997 until its demise, “the primary motivations for Enron’s accounting and financial transactions seem to have been to keep reported income and reported cash flow up, asset values inflated, and liabilities off the books.” Bodurtha, James N., Jr. (Spring 2003). “Unfair Values” – Enron’s Shell Game. Washington, D.C.: McDonough School of Business. p. 2. CiteSeerX: 10.1.1.126.7560.  Arthur Anderson was the audit and accounting firm, which also went belly up due to Enron.  But Enron’s financials were false and, ultimately, led to numerous convictions.

Now, I am certainly NOT comparing the State of North Carolina to Enron.  I am merely providing an example of a possible result when accountability is ignored.  When the fiduciary duty owed is not fulfilled.

Not completely unlike corporate financials, North Carolina creates a budget every fiscal year (yeah, I get it, not completely similar either). 

When the Medicaid budget is created each year, which is more than $18 billion, I, as a taxpayer, expect those Medicaid dollars allocated to the Medicaid budget to be spent for the benefit of Medicaid recipients.  Medicaid money should be spent on Medicaid providers, who service Medicaid recipients.  I expect that administration costs be kept at a minimum.  I expect that Medicaid providers receive timely, prompt payments, and I expect that Medicaid recipients receive good, quality, and continuing health care.

I do not expect the State to cover the health care for everyone.  Not even most people.  I understand that funds are not limitless in government and that there must be limitations on spending, otherwise our great State will become another Detroit. 

However, I do expect that the funds that ARE allocated to Medicaid to BE allocated for the benefit of the Medicaid recipients. Period.

In the past year, we have implemented the Managed Care Organizations (MCOs) to manage Medicaid behavioral health care.  In theory, the MCOs were implemented to cut down the administrative costs for DHHS.  Basically…outsourcing.  In theory, it sounds good.

DHHS’ administration costs are out-of-control.  After the January 2013 Performance Audit on DHHS, State Auditor Beth Wood said North Carolina’s administrative costs are 38 percent higher than the average of nine states because of “structural flaws” in how DHHS operates the Medicaid program.

So, in response to these high administrative costs (among other things), we took the administration of behavioral health from DHHS and delegated that administration to the MCOs.  With the number of employees in Health and Human Services over 17,000 employees and the average MCO employing only a couple hundred, it seems, on its face, to be a good idea.  Surely these MCOs can and will run more efficiently that the government! Right?

(The other assumption in outsourcing is that DHHS administrative costs would actually decrease due to the MCOs, but I have seen no indication of this). I have seen no indication of the “structural flaws” in how DHHS operates the Medicaid program being fixed.

According to the website indeed.com, the average salary for a person working at NC DHHS is $47,000.  In addition to the average salary, you also need to contemplate that employees of NC DHHS qualify for basic health benefits at no cost.  However, if a DHHS employee wants to have his or her spouse covered or an insurance plan above the “basic plan,” there is a nominal cost. (The standard plan (above a basic plan) for an employee is still low, only $22.76/mo).

Health insurance premiums are a HUGE expense.  So when calculating salaries, if an employee receives free health care, in essence, the salary is higher…due to not having to pay premiums every month.  Health care premiums add up.  For example, I pay $750.00 monthly for health insurance for me and my husband. That’s $9000/year! Yikes!! (No, for real, yikes!!)  If Williams Mullen paid my health insurance premium, in essence, my salary would increase by $9000/year.

Including health care and trying to underestimate instead of overestimate, I calculate the average salary, including health care premiums, at NC DHHS at about $52,000-ish.

Since the MCOs went “live,” the Medicaid tax dollars that would have been held by NC DHHS, are now divvied up and bestowed upon each MCO.  Today, we have 11 MCOs, but soon Smokey Mountain Center will take over Western Highlands, bringing us to 10 MCOs.  Plus, according to a recent article published, “Frustrations With MeckLINK Grow as Denials for Care Increases,” MeckLINK is financially unstable.  We may soon be down to 9.  But, as for now, 11 MCOs receive the federal and state tax dollars for Medicaid behavioral health.

Key point? Tax dollars.

CenterPoint Human Services (CenterPoint), one of the MCOs, staffs approximately 200 employees (about 19 part-time). Out of the 200-ish employees, 41 employees receive salaries over $75,000 (including health care).  Almost 1/4 of CenterPoint’s employees have salaries OVER $75,000. 

145 employees receive salaries over the NC DHHS average salary: $52,000. 

Let’s talk about the price of health care.  Remember, these are OUR tax dollars.

Employee A has a base salary of $45,500.  But A received $16,965 in medical contribution.  Remember, my insurance for me and my husband costs $9,000/year.  For $16,965, how big of a family are we taxpayers covering?

Employee B has a base salary of $43,500. (Now, let me preface this example with…I hope…I pray…that this one example is a typo on CenterPoint’s financials, because, if not, this is outrageous!).  According to CenterPoint’s financials, Employee B gets $84,658 in medical contributions. Including FICA contribution, dental, short and long-term disability, 401K, etc., Employee B receives $136,716 in total compensation.  Admittedly, I have no way to confirm whether this is a typo….and, I must admit, I really hope it is. Regardless, according to CenterPoint’s financials Employee B receives $84,658 in medical contributions for a total of $136,716 total compensation, but with a base pay of only $43,500.

But here it is in black and white (and yellow) (toward the bottom):

Health Insurance

Three other employees, C, D, and E, have base salaries of $49,750, $49,000, and $47,100, respectively, and medical contributions of $12,007 each.  And here I thought MY health insurance was expensive…

The number $12,007 is popular.  12 employees in total receive $12,007 in medical contributions for a total of $144,084 (for 12 employees).

Another employee gets $16,965 in medical contribution with a base salary of $47,100.

Now let’s talk about the Medicaid recipients’ behavioral health care services.

Since the MCOs went live, it is indisputable that less behavioral health services are being authorized by the MCOs.  (Why the government has not addressed this tragedy, I do not know).  Another question is how many less behavioral health care servies?  I have my suspicions that if we were shown the number of behavioral health care services authorized last year compared to this year, the line would look like \. 

Remember the chart from yesterday?

MeckLINK_June_Slide

And this chart only shows one county. One MCO.

NC DHHS is handing over millions (just the behavioral health portion of the Medicaid funds) of Medicaid dollars to the MCOs.  But the money is not going to service Medicaid recipients.  The Medicaid dollars are paying salaries at every MCO, as well as the employees’ families’ health insurance plans.  What Medicaid funds go to the recipients for medically necessary services?  Seems to decrease every day.

I ask you, why do employees of an MCO receive better health care plans with Medicaid dollars than a Medicaid recipient with Medicaid dollars?

Aren’t Medicaid funds supposed to be for Medicaid recipients?

Maybe instead of all this administrative waste, we should just buy private health insurance for all Medicaid recipients. It would probably be cheaper.  And the medically necessary services would

                                                                                                  NOT

                                                                                                            LOOK

                                                                                                                     LIKE

                                                                                                                            THIS.

Going back to the State of North Carolina’s accountability to me and all taxpayers as to Medicaid tax dollars spent, I have not seen any investigation as where the behavioral health care Medicaid money is being spent.

The same article from above stated something that made me extremely concerned.  In “Frustrations With MeckLINK Grow as Denials for Care Increases,” the article cites that “[o]nce MCOs took over, North Carolina stopped tracking what care patients are receiving. A health official said the database goes blank. That means the state does not know how many North Carolinians received services, what those services were, or what was denied. It can compare MCOs financials, but not their care.” (emphasis added).

Are you kidding me? The State of North Carolina, which is accountable to me and all taxpayers, cannot determine whether the Medicaid dollars being handed over to the MCOs are being used appropriately????

Yet 145 employees at CenterPoint receive salaries over the NC DHHS average salary: $52,000!  145 out of 200-ish, to be exact.  Some employees are receiving health insurance contributions of over $10,000/year…and NC cannot determine how many Medicaid recipients received medically necessary behavioral health care??

As a taxpayer, I am appalled. And I want accountability!!

Where is the fiduciary duty to taxpayers?

NC Medicaid MCOs: You Cannot Prove a Negative!

In philosophy, you learn about “evidence of absence.” It’s kind of like a logical assumption based on the LACK of evidence. Such as: P implies Q is false, but Q is false, therefore P is false.  Or Knicole takes a break from blogging on the weekends.  Knicole did not blog today, therefore it must be a weekend.

There is also some who say you cannot prove a negative.  You cannot prove that flying reindeer do not exist; it is up to the flying reindeer to prove they do exist.  Personally, I think this way of thinking is pessimistic and leaves little room for faith.  But, in some circumstances, such as…how are my tax dollars being used for Medicaid recipients, I do not want a non-proven negative.  I want proof.

Recently, WFAE, Charlotte’s NPR News station, ran a piece entitled, “Frustrations with MeckLINK Grows as Denials for Care Increase.”

The point of the article was the drastic decrease in behavioral health service authorizations within MeckLINK’s catchment area (Mecklenburg county) for Medicaid services since MeckLINK went live.

Here is the chart WFAE provided in its article:

MeckLINK_June_Slide

If this graph is correct, MeckLINK has some serious questions to answer to taxpayers. Within 4 months, the number of mental health Medicaid consumers in Mecklenburg county decreased OVER HALF??!!!  From 1,518 to 689!

Did the 829 people, who were receiving mental health services back in February/March 2013, move from Mecklenburg county/die/heal (in order to not need the mental health services in June)? Or has MeckLINK (and other MCOs) simply begun to deny medically necessary mental health services???

If it is the latter and not the former, I ask, as a taxpayer, where did my Medicaid tax dollars go? To MeckLINK salaries?  And, if it is the latter and not the former, as a person concerned with mental services, especially for Medicaid recipients, I ask, what has happened to the 829 Medicaid recipients no longer receiving mental health services??  Hospitalization? Incarceration? Homelessness? Or just sitting at home depressed…unable to function as they could when they did receive services?

Well, Ben Bradford, of WFAE, asked MeckLINK’s chief financial officer, Ken O’Neil, this question.

O’Neil’s answer? The evidence of absence.

O’Neil revealed that MeckLINK is on tenuous financial footing. It ran a deficit in May and June at a rate that would put it out of business in less than a year.  He also argues those deficits are proof that MeckLINK isn’t sacrificing care for profit.

See Article.

O’Neil argues that MeckLINK’s deficits are proof that MeckLINK is not sacrificing care for profit.  Proof that flying reindeer do not exist!

O’Neil contends that MeckLINK’s deficit proves that MeckLINK is not denying medically necessary services to mentally ill Medicaid recipients. BTW: O’Neil contends this non-proven negative despite the graph showing that more than half of recipients in Mecklenburg county are no longer receiving services.

O’Neil’s contention (that a deficit proves MeckLINK is not sacrificing care for profit) has a gaping, logistic flaw.

Remember my blog, published June 10, 2013? “Higher Medicaid Administrative Costs = Less Medicaid Money for Providers to Service Recipients

In this blog, I wrote about CenterPoint’s “hefty salaries to its top-executives.  In addition to these hefty salaries, CenterPoint pays for all employees’ health insurance, as well as the health insurance for all employees’ families!!”

I estimated (and probably underestimated) that CenterPoint, by paying for its employees and employees’ families’ health premiums, was spending approximately $1.5 million in health care premiums…money that should have gone to Medicaid recipients.

So MeckLINK’s (O’Neil’s) contention that MeckLINK’s deficits are proof that MeckLINK is not sacrificing care for profit is flawed.  Where is the proof that MeckLINK is not over-paying its top executives? Where is the proof that MeckLINK is not over-spending on its employees, i.e., paying for employees’ health care premiums…as well as the families of employees?

Well, I found a few graphs published by DMA that caused me more reason to believe that O’Neil’s “proof of a negative” is flawed.

DMA issues reports on the MCOs.  A recent dashboard report cites that, in its “Trends to Watch,”

1. Behavioral health related claims (e.g., Inpt MH, ICF/MR, CAP-MR and non-physician practitioners) continue to decline with the implementation of BH MCOs. Please note that several of the BH-related types of service have volatile costs per service unit and service units per recipient. This is a consequence of the drastic drop in utilization due to the implementation of MCOs and does not reflect a widespread trend. We will likely remove several of these types of service from the report soon.

I have SO many issues with this “trend.”  Such as: “Continue to decline.” “With the implementation of BH (behavioral health) MCOs.”  “Drastic drop in utilization.”  “Due to the implementation of BH MCOS.”  “Not reflect a widespread???”  (Aren’t the MCOs statewide?).  “We will…remove?… several of these services from the report”….WHY? We don’t want to track the fact that the mentally ill are not receiving Medicaid services?

The DMA Dashboard Report also depicts numerous graphs.  Many of the graphs depict last fiscal years’ Medicaid services’ dollars spent (with a blue line) and this years’ Medicaid services’ dollars spent (with the red line).

Most years, both last fiscal year and this fiscal year, are fairly similar.

Such as Medicaid physicians’ office visits:

Example pic

Notice the interplay between the red and blue lines.  The expenditures for physicians’ office visits from last fiscal year to this fiscal year is, relatively, similar.

Now let’s look at a behavioral health service (ICF/MR):

Chart DMA

See the difference?

The blue line depicts last fiscal year.  The red line depicts the current fiscal year.  The left side of the graph shows dollars, while the bottom side shows months.

As you can see, the blue line (last fiscal year) shows a semi-constant, horizontal line with a small down tick in April 2012.  The red line, however, (this fiscal year) begins where the blue line left off, but, then, in January-ish 2013, a massive decrease in dollars spent.

So….a massive decrease….surely the MCOs were not paid the same…oh, and surely not more!!!???

Because, remember, if an MCO has a deficit, that means that the MCO is “not sacrificing care for profit.”

Here is DMA’s graph on MCO capitation payments per 1000 eligibles:

Capitation Pic

Now, mind you, I am no math expert, but this chart, to me, appears to show a 700% plus uptick in MCO capitation payments.

So, according to O’Neil, MeckLINK is running at a deficit, at least for a couple of months.  Yet, DMA’s graphs demonstrate a decrease in mental health services and an increase in payments to MCOs.

Hmmmm.

Here are proofs of negatives:

The fact that Knicole did not blog today proves that it is a weekend. (Surely, Knicole was not just too busy on a weekday to get out a blog).

MeckLINK’s deficits are proof that MeckLINK is not sacrificing care for profit.  (Surely, MeckLINK did not pay hefty salaries to top executives or all health care premiums for employees and families). 

You cannot prove a negative.  But you CAN show proof.

Preliminary Injunctions: In NC Medicaid, Extraordinary Circumstances Call for Extraordinary Measures

Preliminary injunctions…Prior to law school, had you asked me what a preliminary injunction was I probably would have said, generally, that an injunction is a legal remedy to stop someone from doing something.

Now, post-law school and after approximately 13-years of legal experience, I know now that I would have been only partially right prior to law school.

First, I understand that preliminary injunctions are extraordinary measures.  But don’t extraordinary circumstances call for extraordinary measures?

There are 2 types of injunctions: preventive and mandatory.

How could an injunction help you, as a Medicaid provider? (And, believe me, it can!!)

I have used injunctions in many different ways to help Medicaid providers.  Here are some examples:

  • A provider’s Medicaid contract is terminated…a preventive injunction can be put in place to stay the termination until a determination of the termination’s validity (Secret: If any entity other than the Department of Health and Human Services (DHHS), Division of Medical Assistance (DMA) terminated the Medicaid contract, most likely, the termination is not valid).
  • A provider’s Medicaid reimbursements are suspended…a preventive injunction can be put into place to stay the suspension of payments until a determination of the suspension’s validity.
  • A provider, who has provided Medicaid services for years and has had a Medicaid contract with DHHS for years, is denied enrollment by a Managed Care Organization (MCO)…a mandatory injunction could force the MCO to contract with the provider.

The last example is an example of a mandatory injunction.  Mandatory injunctions, generally, are more difficult to convince a judge to order than a preventive injunction.  However, in the context of Medicaid, generally, the providers have compelling stories that will warrant any type of injunction…extraordinary circumstances.

But a preliminary injunctions is not the first step.

Normally when I draft a Motion for Preliminary Injunction, I use North Carolina Civil Procedure, Rule 65.

Rule 65. Injunctions.

(a)        Preliminary injunction; notice. – No preliminary injunction shall be issued without notice to the adverse party.

(b)        Temporary restraining order; notice; hearing; duration. – A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (i) it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (ii) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required.

Temporary Restraining Order? I thought we were talking about injunctions!!! Now I am confused!!

Do not fret!

Notice that, according to Rule 65, a preliminary injunction may NOT be issued without notice to the adverse party.  However, a Temporary Restraining Order (TRO) CAN be granted withOUT notice to the adverse party.

How this plays out in real life is that, when I want an injunction, I file a “Motion to Stay, Temporary Restraining Order, and Preliminary Injunction.”  I file the Motion in the Office of Administrative Hearings (OAH), which is great, because, generally, the Administrative Law Judges (ALJs) have a deep understanding of Medicaid laws, rules and regulations.

According to Rule 65, the Judge, in his or her discretion may grant the TRO, then schedule the preliminary injunction within 7-10 days.

The fact that a Judge can grant a TRO quickly and without notice to the adverse party clearly shows how extraordinary a TRO is.

But extraordinary circumstances call for extraordinary measures.  Or, in Latin, “extremis malis extrema remedia.”

Example:

Alice is a health care provider who accepts Medicaid.  Alice has a small practice; she only has 3 employees and maybe 40 clients.  She provides mental health care to needy adults in Mecklenburg county.  MeckLINK is her MCO.  On August 1, 2013, MeckLINK sends correspondence to Alice stating that as of August 5, 2013, Alice’s Medicaid contract will be terminated.  Alice panics.  Not only is her small practice her only source of revenue…her livelihood…her career, but she would have to close her practice immediately if MeckLINK failed to pay her even one time.

What are Alice’s choices?

A:   Cry. Give up;

B:   Cuss out MeckLINK, only to have MeckLINK provide her additional legal bases for the termination;

C:   Appeal through MeckLINK’s informal appeal, only to have the termination become effective August 5th, despite the appeal, schedule the informal appeal within 30 days, and go bankrupt prior to the informal appeal; or

D:   Get a TRO/preliminary injunction

Personally, I go with ‘D.’

If you do file a Motion to Stay, TRO and Preliminary Injunction and the Judge follows the legal protocol, the TRO should be granted within a few days.  Then a preliminary injunction (PI) should be scheduled within 7-10 days.  At the PI hearing, you must show: (1) likelihood of success on the merits; and (2) irreparable harm.

How do you show likelihood of success on the merits? Well, in my example, MeckLINK was the acting entity taking the action to terminate Alice’s Medicaid contract.  But federal law dictates that a single state entity manage Medicaid.  It is my position that MeckLINK does not have the authority to unilaterally and without DHHS’ express authorization to terminate a Medicaid contract. Make the argument…show likelihood of success on the merits.

How do you show irreparable harm? Damages must be more than just monetary. Damages must be irreparable…as in, not fixable with mere money.  Obviously, monetary damages are at issue.  But also, goodwill/reputation in the community, staff morale, fear of bankruptcy, effect of bankruptcy on Alice, Alice’s family, staff, effect on Medicaid recipients (not receiving the medically necessary services), impact on the community, etc.  Show irreparable harm…get the PI.

Once you meet your burden of proof for preliminary injunction, then the injunction is upheld until a full hearing on the merits.  Usually, the full hearing on the merits will not be scheduled for many months.  So the PI enables you to continue to do business as usual…as if no termination had ever been threatened.  Status quo. (The existing state of affairs).

Had Alice’s TRO and PI NOT been granted?

Alice would have lost her business.  Her 3 staff members would have been unemployed.  Alice’s family would have been without income.  Her 3 staff would have been without income, perhaps they would have applied for unemployment.  Her landlord would not have been paid.  The 40-ish  Medicaid recipients would not have received medically necessary services.  The Medicaid recipients would have decomposed…perhaps becoming hospitalized or incarcerated…or on the street.  Alice’s reputation in the community would have been that “MeckLINK shut Alice down! She must have been doing something wrong.”  Alice would have become depressed…convinced that she were a failure.  Alice, due to zero income, would have lost her home; her husband would have left her.  (No one can really comprehend the harm of closing a business. The consequences could be more dire than my description).

These are extraordinary circumstances. And extraordinary circumstances call for extraordinary measures!