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Legislative Update For May 10, 2017

I am a member of the Health Law Section’s Legislative Committee, along with attorneys Shawn Parker, and Scott Templeton. Together we drafted summaries of all the potential House and Senate Bills that have passed one house (crossed over) and have potential of becoming laws. We published it on the NC Bar Association Blog. I figured my readers would benefit from the Bill summaries as well. Please see below blog.

On behalf of the North Carolina Bar Association Health Law Section’s Legislative Committee,  we are providing the following 2017 post-crossover legislative update.

The North Carolina General Assembly has been considering a substantial number of bills of potential relevance to health law practitioners this session. The Health Law Section’s Legislative Committee, with the help of NCBA staff, has been monitoring these bills on virtually a daily basis.

The General Assembly’s rules provide for a “crossover date” during the legislative session, which this year was April 27. The importance of that date is essentially that, with certain caveats, unless a bill has passed one chamber (House or Senate) by the crossover date, the bill will no longer be considered by the legislature. The following listing provides brief descriptions of current proposed legislation, in two categories.

The first category includes bills that passed either the House or Senate by the crossover date, and therefore remain in consideration by the legislature. The second category includes bills that did not pass either chamber before the crossover date, but because the bills contain an appropriation or fee provisions, they may continue to be considered pursuant to legislative rules.

In addition to the bills listed below, a number of bills did not make crossover and do not meet an exception to the crossover rule, and are likely “dead” for this legislative session. We recognize, however, that the legislature is capable of “reviving” legislation by various mechanisms. The Legislative Committee continues to monitor legislation during the session, and in addition to this update, we may provide further updates as appropriate, and also anticipate doing a final summary once the legislature has adjourned later this year.

Bills That Passed One Chamber by the Crossover Date.

House Bills 

HB 57: Enact Physical Therapy Licensure Compact

Makes North Carolina a member of the Physical Therapy Licensure Compact, upon the 10th member state to enact the compact. Membership in the compact would allow physical therapists who hold licenses in good standing in any other compact state to practice physical therapy in North Carolina. Likewise, physical therapists holding a valid license in North Carolina would be able to practice physical therapy in any of other the compact member states.

 HB 140: Dental Plans Provider Contracts/Transparency

Provides that insurance companies that offer stand-alone dental insurance are subject to the disclosure and notification provisions of G.S. 58-3-227.

 HB 156: Eyeglasses Exemption from Medicaid Capitation

Adds the fabrication of eyeglasses to the list of services that are not included as part of transitioning the State Medicaid program to a capitated system.

HB 199: Establish Standards for Surgical Technology

Creates standards for surgical technology care in hospitals and ambulatory surgical facilities, specifically prohibiting employing or contracting with a surgical technologist unless that technologist produces one of four enumerated qualifications.

HB 206: N.C. Cancer Treatment Fairness

Requires insurance coverage parity so orally administered anti-cancer drugs are covered on a basis no less favorable than intravenously administered or injected anti-cancer drugs.

 HB 208 : Occupational Therapy Choice of Provider

Adds licensed occupational therapists to the list of providers for whom insurers are required to pay for services rendered, regardless of limitations to access of such providers within the insurance contract.

 HB 243: Strengthen Opioid Misuse Prevention (STOP) Act

Requires, among other things, practitioners to review information in the state-controlled substance reporting system prior to prescribing certain targeted controlled substance and limits the length of supply that a targeted controlled substance may be prescribed for acute pain relief.

HB 258: Amend Medical Malpractice Health Care Provider Definition

Includes paramedics, as defined in G.S. 131E-155, within the definition of health care provider for the purposes of medical malpractice actions.

HB 283: Telehealth Fairness Act

Requires health benefit plans to provide coverage for health care services that are provided via telemedicine as if the service were provided in person.

HB 307: Board Certified Behavioral Analyst/Autism Coverage

Adds board certified behavioral analysts as professionals that qualify for reimbursement for providing adaptive behavioral treatments under North Carolina’s mandatory coverage requirements for autism spectrum disorder.

 HB 403: LME/MCO Claims Reporting/Mental Health Amendments

Requires Local Management Entities/Managed Care Organizations (LME/MCOs) to use a state-designated standardized format for submitting encounter data, clarifies that the data submitted may be used by DHHS to, among other authorized purposes, set capitation rates. Also modifies multiple statutory requirements and references related to LME/MCOs. Limits the LME/MCOs’ use of funds to their functions and responsibilities under Chapter 122C. Also limits the salary of an area director unless certain criteria are met.

HB 425: Improve Utilization of MH Professionals

Allows licensed clinical addiction specialists to own or have ownership interest in a North Carolina professional corporation that provides psychotherapeutic services. Allows licensed professional counselors or licensed marriage and family therapist to conduct initial examinations for involuntary commitment process when requested by the LME and approved by DHHS.

HB 550: Establish New Nurse Licensure Compact

Repeals the current nurse licensure compact codified at G.S. 90-171.80 – 171.94 and codifies a substantially similar compact, which North Carolina will join upon adoption by the 26th state, allowing nurses to have one multi-state license, with the ability to practice in both their home state and other compact states.

HB 631: Reduce Admin. Duplication MH/DD/SAS Providers

Directs DHHS to establish a work group to examine and make recommendations to eliminate administrative duplication of requirements affecting healthcare providers.

Senate Bills 

SB 42: Reduce Cost and Regulatory Burden/Hospital Construction

Directs the N.C. Medical Care Commission to adopt the American Society of Healthcare Engineers Facility Guidelines for physical plant and construction requirements for hospital facilities and to repeal the current set of rules pertaining to such requirements under the current hospital facilities rules within the North Carolina Administrative Code.

SB 161: Conforming Changes LME/MCO Grievances/Appeals

Provides a technical change to North Carolina LME/MCO enrollee grievance statutes by renaming “managed care actions” as “adverse benefit determinations” to conform to changes in federal law.

SB 368: Notice of Medicaid SPA Submissions

Directs DHHS to notify the General Assembly when DHHS submits to the federal government an amendment to the Medicaid State Plan, or decides not to submit a previously published amendment.

 SB 383: Behavioral Health Crisis EMS Transport

Directs DHHS to develop a plan for adding Medicaid coverage for ambulance transports to behavioral health clinics under Medicaid Clinical Coverage Policy 15.

SB 384: The Pharmacy Patient Fair Practices Act

Prohibits pharmacy benefits managers from using contract terms to prevent pharmacies from providing direct delivery services and allows pharmacists to discuss lower-cost alternative drugs with and sell lower-cost alternative drugs to its customers.

SB 630: Revise IVC Laws to Improve Behavioral Health

Makes substantial revisions to Chapter 122C regarding involuntary commitment laws.

Bills That Did Not Pass Either Chamber by the Crossover Date, But Appear to Remain Eligible for Consideration.

House Bills

HB 88: Modernize Nursing Practice Act

Eliminates the requirement of physician supervision for nurse practitioners, certified nurse midwives, clinical nurse specialists and certified registered nurse anesthetists.

HB 185: Legalize Medical Marijuana

Creates the North Carolina Medical Cannabis Act.  Among many other provisions, it provides that physicians would not be subject to arrest, prosecution or penalty for recommending the medical use of cannabis or providing written certification for the medical use of cannabis pursuant to the provision of the newly created article.

HB 270: The Haley Hayes Newborn Screening Bill

Directs additional screening tests to detect Pompe disease, Mucopolysaccharidosis Type I, and X-linked Adrenoleukodystrophy as part of the state’s mandatory newborn screening program.

HB 858: Medicaid Expansion/Healthcare Jobs Initiatives

Repeals the legislative restriction on expanding the state’s Medicaid eligibility and directs DHHS to provide Medicaid coverage to all people under age 65 with incomes equal to or less than 133 percent of the federal poverty guidelines. Appropriates funds and directs the reduction of certain recurring funds to implement the act. Additionally the bill creates and imposes an assessment on each hospital that is not fully exempt from both the current equity and upper payment limit assessments imposed by state law.

HB 887: Health Insurance Mandates Study/Funds

Appropriates $200,000 to fund consultant services to assist the newly established Legislative Research Commission committee on state mandatory health insurance coverage requirements.

HB 902: Enhance Patient Safety in Radiological Imaging.

Creates a new occupational licensure board to regulate the practice of radiologic imaging and radiation therapy procedures by Radiologic Technologists and Radiation Therapists.

Senate Bills

SB 73: Modernize Nursing Practice Act

Eliminates the requirement of physician supervision for nurse practitioners, certified nurse midwives, clinical nurse specialists and certified registered nurse anesthetists.

SB 290: Medicaid Expansion/Healthcare Jobs Initiative

Repeals the legislative restriction on expanding the state’s Medicaid eligibility and directs DHHS to provide Medicaid coverage to all people under age 65 with incomes equal to or less than 133 percent of the federal poverty guidelines. Appropriates funds, directs the reduction of certain recurring funds to implement the Act. Additionally the bill creates and imposes an assessment on each hospital that is not fully exempt from both the current equity and upper payment limit assessments imposed state law.

SB 579: The Catherine A. Zanga Medical Marijuana Bill

Creates the North Carolina Medical Cannabis Act.  Among many other provisions, it provides that physicians would not be subject to arrest, prosecution or penalty for recommending the medical use of cannabis or providing written certification for the medical use of cannabis pursuant to the provision of the newly created article.

SB 648: Legalize Medical Marijuana

Creates the North Carolina Medical Cannabis Act.  Among many other provisions, it provides that physicians would not be subject to arrest, prosecution or penalty for recommending the medical use of cannabis or providing written certification for the medical use of cannabis pursuant to the provision of the newly created article.

Please contact a member of the Health Law Section’s Legislative Committee should you have any questions regarding this report.  The Committee’s members are Knicole Emanuel, Shawn Parker, and Scott Templeton (chair).

Warning: Medicare/caid Billing Confusion May Lead to Jail Time

All health care providers are under serious scrutiny, that is, if they take Medicaid. In Atlanta, GA, a dentist, Dr. Oluwatoyin Solarin was sentenced to a year and six months for filing false claims worth nearly $1 million. She pled guilty, and, I would assume, she had an attorney who recommended that she plead guilty. But were her claims actually false? Did she hire a criminal attorney or a Medicaid attorney? Because the answers could be the difference between being behind bars and freedom.

Dr. Solarin was accused of billing for and receiving payments for dental claims while she was not at the office. U.S. Attorney John Horn stated that “Solarin cheated the Medicaid program by submitting fraudulent claims, even billing the government for procedures she allegedly performed at the same time she was out of the country.”

I receive phone calls all the time from people who are under investigation for Medicare/caid fraud. What spurred on this particular blog was a phone call from (let’s call him) Dr. Jake, a dentist. He, similar to Dr. Solarin, was under investigation for Medicaid fraud by the federal government. By the time Dr. Jake called me, his investigation was well on its way, and his Medicaid reimbursements had been suspended due to credible allegations of fraud for almost a year. He was accused of billing for and receiving payments for dental services while he was on vacation…or sick…or otherwise indisposed. He hired one of the top criminal attorneys, who advised him to take a plea deal for a suspended jail sentence and monetary recompense.

But, wait, he says to me. I didn’t do anything wrong. Why should I have to admit to a felony charge and be punished for doing nothing wrong?

I said, let me guess, Jake. You were the rendering dentist – as in, your NPI number was on the billed claim – but you hired a temporary dentist to stand in your place while you were on vacation, sick, or otherwise indisposed?

How did you know? Jake asks.

Because I understand Medicaid billing.

When my car breaks down, I go to a mechanic, not a podiatrist. The same is true for health care providers undergoing investigation for Medicare/caid fraud – you need a Medicare/caid expert. A criminal attorney,most likely, will not understand the Medicare/caid policy on locum tenens. Or the legal limitations of Medicaid suspensions and the administrative route to get the suspension lifted. Or the good cause exception to suspensions.

Don’t get me wrong, I am not advocating that, when under criminal, health care fraud investigation, you should not hire a criminal attorney. Absolutely, you will want a criminal attorney. But you will also want a Medicare/caid attorney.

What is Locum tenens? It is a Latin phrase that means temporary substitute. Physicians and dentists hire locum tenens when they go on vacation or if they fall ill. It is similar to a substitute teacher. Some days I would love to hire a locum tenens for me. When a doctor or dentist hires a temporary substitute, usually that substitute is paid by the hour or by the services rendered. If the payor is Medicare or Medicaid, the substitute is not expected to submit the billing and wait to be reimbursed. The substitute is paid for the day(s) work, and the practice/physician/dentist bills Medicare/caid, which is reimbursed. For billing purposes, this could create a claim with the rendering NPI number as Dr. Jake, while Dr. Sub Sally actually rendered the service, because Dr. Jake was in the Bahamas. It would almost look like Dr. Jake were billing for services billing the government for procedures he allegedly performed at the same time he was out of the country.

Going back to Dr. Jake…had Dr. Jake hired a Medicare/caid attorney a year ago, when his suspension was first implemented, he may have be getting reimbursed by Medicaid this whole past year – just by asking for a good cause exception or by filing an injunction lifting the suspension. His Medicaid/care attorney could have enlightened the investigators on locum tenens, and, perhaps, the charges would have been dropped, once the billing was understood.

Going back to Dr. Solarin who pled guilty to accusations of billing for services while out of the country…what if it were just a locum tenens problem?

Documentation Errors Could Affect Your License to Practice!

Written by Robert Shaw, Partner at Gordon & Rees.

Readers of this blog know well what financial harm can come from documentation problems, particularly resulting from Medicare and Medicaid auditors. But just as significantly, these problems can affect your participation rights in federal programs, and could even affect your license to practice. A case in point is a recent decision from the North Carolina Court of Appeals about disciplinary action taken against a dentist.

In Walker v. North Carolina Board of Dental Examiners, the Court of Appeals, in an opinion filed today, addressed findings by auditors that the dentist had not properly documented “the reasons for prescribing narcotic pain medications for a number of patients in her treatment records.” Well, you might ask, What Does The Rule Say? There is in fact a rule on the records that dentists must keep, similar to the rules in most other health care specialties. It is the Record Content Rule in 21 N.C.A.C. 16T .101.

(By the way, now is a great time to review every rule that you must follow in order to keep proper records and to figure out what the legal requirements are. Many providers did this at one time but fail to keep up to speed on the latest rule changes, which gets them into trouble. Or, they keep records based on how someone taught them. But, that’s not a legal defense!)

The Court of Appeals found that Dr. Walker did NOT violate the Record Content Rule, which does not require documentation of the medical reasons for prescribing pain medication. So, the Board of Dental Examiners got it wrong by citing Dr. Walker for a violation of 21 N.C.A.C. 16T .101. That rule only requires that the dentist document “[n]ame and strength of any medications prescribed, dispensed or administered along with the quantity and date.”

But that was not the end of the matter. The Board also cited Dr. Walker for violating N.C. Gen. Stat. 90-41(a)(12), which provides that the Board of Dental Examiners “shall have the power and authority to . . . [i]nvoke . . . disciplinary measures . . . in any instance or instances in which the Board is satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry[.]” This is very broad power.

So, what is the standard to be applied under this general “negligent in the practice of dentistry” statute? At the disciplinary hearing, two expert witnesses (other North Carolina dentists) testified that “the applicable standard of care require[s] North Carolina dentists to not only record [the] prescription [of] controlled substances, but the reason for prescribing those medications.” This is, in effect, an unwritten standard of practice that dentists, at least according to these witnesses, should follow in North Carolina. Perhaps importantly, Petitioner acknowledged that she had participated in training programs that advised that dentists should record the reasons for medications that they prescribe. But nevertheless, this rule was not in the North Carolina Administrative Code, a clinical coverage policy, or other policy statement published by the Board (at least that was cited in the opinion).

The Court of Appeals affirmed that the Board had the authority to discipline the petitioner for failing to follow these general standards of care in North Carolina, based on testimony of two practicing North Carolina dentists!

What does this mean? It means that your licensing board could cite general record-keeping practices in your field as the basis for disciplinary action against you under a catch-all negligence standard. While each board is governed by its own set of rules and statutory authority, Walker v. North Carolina Board of Dental Examiners is a powerful reminder that record-keeping is serious business, and you could be legally obligated to follow standard practices in your field in addition to the legal maze of federal and state regulations and policies governing health care records.

Knicole Emanuel Speaks Out on WRAL: You Do Not Pee in a Cup at the Dentist!

WRAL Knicole

http://www.wral.com/dentists-left-holding-bills-for-services-to-pregnant-women/15311392/

Or click here.

Federal Audit Spurs NC to Recoup from Dentists Who Accept MPW!!

When providers receive Tentative Notices of Overpayment (TNOs), we appeal the findings. And, for the most part, we are successful. Does our State of NC simply roll over when the federal government audits it??

A recent audit by Health and Human Services (HHS) Office of Inspector General (OIG) finds that:

“We recommend that the State agency:

  • refund $1,038,735 to the Federal Government for unallowable dental services provided to MPW beneficiaries after the day of delivery; and
  • increase postpayment reviews of dental claims, including claims for MPW beneficiaries, to help ensure the proper and efficient payment of claims and ensure compliance with
    Federal and State laws, regulations, and program guidance.”

MPW is Medicaid for Pregnant Women.  Recently, I had noticed that a high number of dentists were receiving TNOs.  See blog.  I hear through the grapevine that a very high number of dentists recently received TNOs claiming that the dentists had rendered dental services to women who had delivered their babies.

Now we know why…

However, my question is: Does NC simply accept the findings of HHS OIG without requesting a reconsideration review and/or appeal?

It seems that if NC appealed the findings, then NC would not be forced to seek recoupments from health care providers.  We already have a shortage of dentists for Medicaid recipients.  See blog and blog.

And if the federal auditors audit in similar fashion to our NC auditors, then the appeal would, most likely, be successful. Or, in the very least, reduce the recouped amount, which would benefit health care providers and taxpayers.

Whenever NC receives a federal audit with an alleged recoupment, NC should fight for NC Medicaid providers and taxpayers!!  Not simply roll over and pay itself back with recoupments!

This audit was published March 2015.  It is September.  I will look into whether there is an appeal on record.

Dealing with Medicaid/Medi-Cal Temporary Suspensions in California – Tips Based on Our Firm’s Experience

Josh Urquhart, a fellow health care attorney at Gordon & Rees’ Denver office, wrote an addendum to my blog from Monday. His comments are on-point and worth reading.

You can find his blog here.

He offers several, specific California- and DHCS-specific tips. However, these tips are analogous to all states and all dentists who accept any government-funded insurance, especially Medicaid.

Here is his last paragraph:

“I know that some of this might be frightening. My first thought after putting pen to paper on this post was to that scene in Empire Strikes Back, when Luke tells Yoda he isn’t afraid, and Yoda tells him ominously “you will be.”  But there is a reason for my sturm und drang. As Knicole says, state Medicaid agencies have a good bit of leverage in these overpayment and fraud and abuse investigations, and in my opinion, DHCS falls towards the very top end of that list. This isn’t a time for providers to put their heads in the sand and figure that they’ll deal with any problems with DHCS later down the line if and when something happens. By that point, it very well might be too late – or at the very least, the providers will have missed the best chance (or even the second best chance) to prevent or resolve any problems cheaply and quickly.”

I have to say…it is so nice being a part of a firm with such an amazing wealth of knowledge about health care…and across the entire nation!!  At GR, I am now part of a “deep bench” of experienced health care attorneys. (Sorry to toot our horn, but it is really nice!!)

Plus, I learned something new from Josh’s blog.  Who knew that “sturm und drang” is an actual phrase and not a sad oversight of spellcheck?? I started to let Josh know of the misspelled phrase until I googled it.  Maybe I will try these words on Words with Friends.

OIG Finds Questionable Billing! California Medicaid Dentists: Expect Withholdings or Other Penalties!

Currently, dentists who accept Medicaid are ripe for pickings as targets for regulatory audits from both the federal and state governments. Actually, this is true for any provider that accepts Medicaid. It just happens that, recently, I have noticed an uptick in dental audits both in North Carolina and nationwide. Some dentists, who accept pregnancy Medicaid, may even bear the burden of determining pregnancy prior to a teeth cleaning…however, that is a topic for another day.  Although, I tell you what, if my dentist asked whether I were pregnant prior to cleaning my teeth, he may have an abnormally red cheek the remainder of the day and I may join Crossfit.

Moving on….

Generally, dentists tend to not accept Medicaid. The reimbursement rates barely cover overhead. Add high regulatory compliance requirements, the likelihood of undergoing audits, and the government’s robust and zealous desire to tackle fraud, waste, and abuse (FWA), and it is no wonder why most dentists opt to not accept Medicaid. See blog. And blog.

Those dentists (and other providers) that do make the decision to accept Medicaid, these brave and noble souls, are subject to onerous audits; the result of a recent California audit is probably sending shock waves through the California dental community.

335 dental providers in California have been targeted by OIG as having questionable billing issues. Sadly, this is only the beginning for these 335 providers. Now the state will audit the providers, and these 335 providers may very well become the subject of a payment withhold in the near future.

What will happen next?

I will look into my crystal ball, otherwise known as experience, and let you know.

First, the Office of Inspector General (OIG) recently published a report called: “QUESTIONABLE BILLING FOR MEDICAID PEDIATRIC DENTAL SERVICES IN CALIFORNIA.

One can only imagine by the title that OIG found alleged questionable billing. Otherwise the title may have been, “A Study into Medicaid Billing for Medicaid Pediatric Dental Services,” instead of “Questionable Billing.” With such a leading title, a reader knows the contents before reading one word.

What is questionable billing?

Importantly, before addressing what IS questionable billing, what is NOT questionable billing? Questionable billing is not abhorrent billing practices. Questionable billing is not wasteful billing or abusive billing. And questionable billing is certainly not fraudulent billing. That is not to say that some of these questionable billing will be investigated and, perhaps, fall into one the aforementioned categories. But not yet. Again, these dentists have a long journey ahead of them.

In this context, questionable billing seems to mean that the OIG report identifies dentists who perform a higher number of services per day. OIG analyzed rendering dental providers’ NPI numbers to determine how many services each rendering provider was providing per day. Then OIG compared the average Medicaid payment per kid, number of services per day, and number of services provided per child per visit. OIG determined a “threshold” number for each category and cited questionable billing practices for those dentists that fell egregiously outside the thresholds. Now, obviously, this is a simplistic explanation for a more esoteric procedure, but the explanation is illustrative.

This study of California Medicaid dentists is not first dental study OIG has undertaken. Recently, OIG studied Medicaid dentists in New York, Louisiana, and Indiana. What stands out in the California Medicaid dental study is the volume of dentists involved in the study. In Indiana, OIG reviewed claims for 787 dentists; in New York it reviewed claims for 719 dentists, and in Louisiana, OIG studied 512 dentists’ claims, all of whom rendered services to over 50 Medicaid children.

In California, OIG studied 3,921 dentists.

Why such a difference?

Apparently, California has more dentists than the other three states and more dentists who accept Medicaid. So, if you are Medicaid dentists, apparently, there is more competition in California.

Juxtapose that, in California, in 2012, only 3 periodontists, 3 prosthodontists, 2 endodontists, and 1 oral pathologist provided services to 50 or more children with Medicaid in California.

Going back to the audit findings…

OIG considered dentists who exceeded its identified threshold for one or more of the seven measures to have questionable billing.

The result?

OIG identified 329 general dentists and 6 orthodontists out of 3,921 providers as having with questionable billing. But these findings are only the beginning of what will, most likely, become a long and tedious legal battle for these 335 providers. Lumping together so many dentists and claiming questionable billing practices will inevitably include many dentists who have done nothing irregular. Many other dentists, will have engaged in unintentional billing errors and may owe recoupments. But I foresee a very small number of these dentists to actually have committed fraudulent billing.

Here is an example found in the OIG’s report, OIG identified that 108 dentists provided stainless steel crowns to 18% of the children served by these dentists, compared to an average of only 5% of children receiving stainless steel crowns by those served by all general dentists (non-Medicaid).

Another example is that 98 dentists provided pulpotomies to 18% of the children, while the statewide percentage is 5% to undergo pulpotomies.

Do these examples show that 108 dentists providing stainless steel crowns and that 98 dentists providing pulpotomies are improperly billing?

Of course not.

It is only logical that dentists who accept Medicaid would have a significantly higher number of pulpotomies compared to dentists who service the privately insured. Usually, although not always, a Medicaid recipient will have more issues with their teeth than those privately insureds. In order to qualify for Medicaid, the family must live in poverty (some more than others with the expansion of Medicaid in some states). Some of kids in this population will have parents who do not harp on the importance of dental hygiene, thus allowing many kids in this population to have decay in their teeth. Obviously, this is a generalization; however, I am confident that many studies exist to back up this generalization.

Therefore, if you accept  my generalization, it makes sense that Medicaid dentists perform more pulpotomies than private insurance dentists.

And stainless steel crowns go hand in hand with pulpotomies. Unless you extract the tooth after the removal of the decay, you will need to provide a stainless steel crown to protect the tooth from future damage.

What will happen next?

OIG admits in its report that “our findings do not prove that providers either billed fraudulently or provided medically unnecessary services, providers with extreme billing patterns warrant further scrutiny.”

Which is precisely what will happen next…”further scrutiny”…

The OIG report recommends to California that it:

• Increase its monitoring of dental providers to identify patterns of questionable billing
• Closely monitor billing by providers in dental chains
• Review its payment processes for orthodontic services
• Take appropriate action against dental providers with questionable billing

It is that last recommendation, taking appropriate action, which will determine the future course for these 335 Medicaid providers. Because, as many of you know if you have followed my blog, the California Department of Health Care Services (DHCS) has a large toolbox with a considerable amount of tools for which it may yield its power against these providers…right or wrong. The same goes for all state Medicaid agencies. When it comes to a Medicaid provider and a Medicaid state agency, there is no balance of powers, in fact, there is only one power. Instead the scales of justice have one arm on the ground and the other raised in the air. There is an imbalance of power, unless you arm yourself with the right allies.

Possible future actions by DHCS:

• Payment suspensions
• Withholds of all reimbursements
• Post payment review
• Prepayment review

And combinations thereof.

DCHS stated that “it will review the dental providers referred by OIG and will determine by December 2015 what appropriate action may be warranted. Should there exist any provider cases not previously evaluated by existing program monitoring efforts, DHCS will take appropriate action through the available channels.”

First, December 2015 is a short timeframe for DCHS to audit 335 providers’ records and determine the proper course of action. So, expect a vendor for DCHS to be hired for this task. Also, expect that an audit of 335 providers in 7 months will have flaws.

These California dentists and orthodontists need to arm themselves with defense tools. And, quickly. Because it is amazing how fast 7 months will fly by!!

The report also states that OIG will be undertaking a study in the future to determine access to dental care issues.  I will be interested in the result of that study.

These possible penalties that I already enumerated above are not without defenses.

These 335 CA Medicaid dental providers have administrative remedies to prevent these possible penalties.   In other words, these 335 CA Medicaid dental providers do not have to take this lying down. Even though it appears that an imbalance of power exists between the state agency and the providers, these providers have appeal rights.

The second that any of these providers receive correspondence from DCHS, it is imperative that the provider contact its attorney.

Remember, some appeals have very short windows for which to appeal.  Do not miss an appeal deadline!!

Shortage of Dentists Who Accept Medicaid: The Shortage Continues

Here is a repost from over a year ago.  But, recently, I met a orthodontist that accepts Medicaid.  He informed me that very, very few orthodontists accept Medicaid in North Carolina.  I was reminded of this post and realized that, sadly, nothing has changed.  In fact, if any change has occurred, I venture to say that less dentists accept Medicaid after the implementation of NCTracks.

 I’ve blogged before about the shortage of dentists for Medicaid recipients. Just see my post “Medicaid Expansion: BAD for the Poor” to read about Deamonte Driver’s story and why he died due to not being able to find a dentist accepting Medicaid. But, today and yesterday, I decided to conduct my own personal investigation. (remember, this was almost a year ago).

(First, let me assure you that this blog is not condemning dentists for not accepting Medicaid recipients. I am informatively (I know, not a word) pointing out the facts. We cannot expect dentists to accept Medicaid when the Medicaid reimbursements dentists receive cannot even cover their costs.)

I googled “Raleigh dentist” and called, randomly, 20 dentists listed. I said the same thing to each receptionist, “Hi. I was wondering whether you accept Medicaid.” Every office had a receptionist answer (no recording asking whether I wanted to continue in English or Spanish). Every office receptionist was very sorry, but the dental practice did not accept Medicaid. 0. Zero out of a random 20.

So I went on North Carolina Department Health and Human Services’ (DHHS) website for dental providers. I pulled up the dental providers, and, lo, and behold, 44 pages were full of dental providers for Medicaid recipients. Literally, 1,760 dental providers are listed (44 pages times 40 lines per page). (However, some practices are listed more than once, so this number is an approximation).

I thought, Wow. Tons of dentists in North Carolina accept Medicaid. Then I looked again. On the far right side of the chart, there is a space for whether the dental practice is accepting new clients. Roughly 1/2 of the listed dental providers are NOT accepting new Medicaid clients.

I called a few of the dentists in Wake County accepting Medicaid. Again, I asked whether they accepted Medicaid. One stated, “Yes, but not at the moment.” Another said, “Yes, but only for children 21 and under.” Another gave a blanket, “Yes.

So that’s Wake County…what about more rural counties?

I called a few dentists in Union County. Two practices did not answer. One dental practice answered and gave me a “Yes.” According to the DHHS chart of Medicaid-accepting dental providers, 20 dentists in Union County accept Medicaid. 4 of which are not accepting new clients and one dental practice is listed as the health department. There are no orthodontists in Union County accepting Medicaid.

The phone numbers for two dental providers in Swain County were changed or disconnected. There are only 3 dental providers in Swain County. There are no orthodontists in Swain County.

There is only 1 dental provider accepting Medicaid in Pamlico County. According to the DHHS chart, the one dental provider is not accepting new patients. There are no orthodontists in Pamlico County.

Polk County lists 3 dentists accepting Medicaid, but not one of the dentists are accepting new clients. There are no orthodontists in Polk County.

Mitchell County has 4 dental providers acccepting Medicaid. But 3 of those dental practices are not accepting new clients. There are no orthodontists in Mitchell County

In Clay County, the only dental practice accepting Medicaid recipients is the health department.

In Ashe County, there are 3 dentists listed that will accept Medicaid. Only 2 are accepting new clients, one of which is the health department. There are no orthodontists in Ashe County.

In Alamance County, there are 4 dentists listed by DHHS who will accept Medicaid patients. The first one I called (a orthodontist) told me that they accepted Medicaid patients only from certain general dentists. The second one was not accepting new patients. The third one (also an orthodontist) informed me that Medicaid does not cover orthodontia services for Medicaid recipients over 21 (I must sound old!!!) The fourth dental practice’s voicemail informed me that the office is only open Wednesdays and Thursdays for limited times. Of the 4 dental practices accepting Medicaid, 3 were orthodontists, one did not accept new clients. The only general dentist (pediatric) only practiced in the local office two days a week.

Shortage of dentists accepting Medicaid? You decide.

“NCTracks is on Track” and Once You Tell a Falsehood, You Have to Tell a Dozen More Lies to Stick to That Falsehood

Today the Department of Health and Human Services (DHHS) released a press release touting, “NCTracks is on Track.”

Despite all the publicity from the media that so many Medicaid providers are suffering, that so many Medicaid providers have not been paid since June 20, 2013, that so many Medicaid providers are close to bankruptcy (some have already closed offices), and despite all the Medicaid providers’ statewide, outcries of nonpayment, and some providers even escalating their outcries to threats of lawsuits due to nonpayment of Medicaid reimbursements, DHHS, still, steadfastly, remains pertinaciously and obtusely rigid in its declaration that NCTracks is great. “Problems?” asks DHHS.  “Sure, minor problems. But nothing major…”

Yet, because of problems with NCTracks:

  • A dentist in Winston-Salem, NC, was forced to close one of two practices and terminate 6 staff.
  • A pediatric physician in Elkins, NC, could not afford groceries for a week until her husband was paid.
  • A home health company in Granite Falls, NC, is close to closing is doors, terminating all staff, and ceasing to help the Medicaid recipients.
  • An oral surgeon was forced to manually enter all claims, day and night, causing time away from Medicaid patients and mental anguish, including sleeplessness and emotional bouts.
  • At least 3 behavioral health providers (that I know of) have stopped accepting Medicaid.
  • At least 5 dentists (that I know of) have stopped accepting Medicaid.
  • A pediatric physician was forced to borrow money from his or her parents to keep the practice open.
  • A pediatric dentist in Charlotte was forced to take out a $100,000 loan to keep the practice open.
  • Medicaid providers have spent countless hours on the phone, taking away desperately needed, clinical time from Medicaid recipients, only to receive zero help from “Helpline operators” with no knowledge of NCTracks.
  • A group of Medicaid providers became so frustrated that they started a Facebook page called “NC Tracks Problems.  As of today, NC Tracks Problems has 86 members, including me, so really, 85 Medicaid providers who are so frustrated that they joined a Facebook page to vent, ask for help, and console one another.

I guess DHHS would say to those providers who have been forced to close offices, have been unable to afford groceries, have had to terminate staff, and have cried themselves to sleep from stress, “Don’t worry. It’s just small glitches.  We should have it all figured out within 90 days.”

It has been 30 days, plus.  Many providers will not make it through 90 days.  Providers and their staff will be unemployed.  (Our taxes that have been paid to CSC for NCTracks, additional tax dollars will then be paid to providers and staff for unemployment benefits). Medicaid recipients will not receive medically necessary services.  But, at least, DHHS won’t lose face.  Because if DHHS refuses to accept the fact that serious problems exist with NCTracks, then those serious problems do not exist.  If DHHS refuses to acknowledge that a pediatric physician could not afford groceries because of NCTracks, then it must not be true.

I am reminded of fable, “The Monkey and the Dolphin.”  Anyone remember this fable?

Just in case, you don’t remember “The Monkey and the Dolphin,” it is an Aesop’s fable.

Summary:

A sailor set sail and brought a monkey for entertainment (I mean, who wouldn’t?). Nasty weather caused the ship to sink and the sailor and the monkey were swimming at sea.  A dolphin sees the monkey and, mistaking him for a human, helps the monkey swim to shore. (I have no idea why the dolphin did not actually  get the real human, but then we would have no moral of a story).

During the swim to Greece (apparently they were close to Greece), the dolphin asks the monkey if he is an Athenian (Athens, Greece…get it?). The monkey, trying hard to act like a human, yet also acting like many humans I know, who try to sound way cooler than they are, answers that, not only is he an Athenian, but he hails from the noblest family in Athens.  Getting closer to Athens, the dolphin asks whether the monkey is familiar with the Piraeus, a famous harbor in Greece.  The monkey, having to continue with his facade/falsehood of hailing from a noble family residing in Athens, but having no idea what Piraeus is, imagines that the Piraeus is a person and responds that Piraeus is one of his best friends.

The dolphin realizes the monkey has been lying and drowns him (I agree, drowning for lying is a somewhat harsh punishment, but this was a long time ago and fictional).

The moral of the story:

“He who once begins to tell falsehoods is obliged to tell others to make them appear true, and, sooner or later, they will get him into trouble.” (Obviously, Aesop lived before any feminist movement).

Or, once you tell a falsehood, you have to tell a dozen more lies to stick to that falsehood. -Knicole Emanuel

Remember back when NCTracks first went live? The first week of July?

Five days after NCTracks went live, DHHS announced that NCTracks is operational and successfully processed its 1 millionth claim.  A few quotes about glitches, but nothing big.

Then, July 8, 2013, DHHS touts that NCTracks is so great, so wonderful that NCTracks pays providers ahead of schedule.

We hail from the noblest family in all of Athens!!

Then, August 5, 2013, “NCTracks is on Track.”

Oh, yes, Piraeus…he’s my best friend!!!

So what do we expect DHHS to do? Publicly declare NCTracks a total and complete failure?

No.  Nor do I purport that NCTracks is a total and complete failure.  Just that serious problems exist with NCTracks and that the administration should admit that serious problems exist with NCTracks, not gloss over serious problems and not ignore the elephant in the room (because it is an exceptionally large elephant).  Take responsibility.  Take accountability.  Admit problems exist and propose solutions.

Nor do I wish to downplay the successes of NCTracks.  Obviously, some providers are getting paid, and that is a great thing.

But do not turn a deaf ear to the many, many providers who are not getting paid.  And who are truly suffering.  Do not continue tell more lies to make the first falsehood appear true.

A few months ago, my little girl lied to me about brushing her teeth.  We had recently been camping, and I had thrown all our bathroom supplies in one bag in order for us girls to walk to the shower together.  We got home and my girl unpacked her suitcase, but she did not have the toiletries bag with her toothbrush to unpack.  I didn’t think about her toothbrush. Monday, Tuesday and Wednesday, I used my toiletries out of the bag (yes, I did not unpack…I was tired and trying to catch up on work), but did not notice her toothbrush was in the bag in my bathroom.  Monday, Tuesday, and Wednesday night my husband and I asked my little girl whether she brushed her teeth.  She said yes.  Not only did she say yes, but she approached me and him, opened her mouth wide, and purported to breath deeply onto us so we could smell her breathe (in truth, the little booger was making the noise of breathing on us, but not really letting air come out).  My husband went upstairs Thursday night (our bedroom is downstairs; hers is upstairs) to cut off her light…she had fallen asleep reading.  He cut off her bathroom light and noticed there was no toothbrush in her bathroom.  The next morning was not pretty.  My husband confronted her about not having a toothbrush.  I believe the interrogation went like this (at 6am):

Husband: You’ve brushed your teeth every night this week , right?

Daughter:  Yes, sir.

Husband:  You sure?

Daughter:  Yes, sir.

Husband:  Ok, let’s go upstairs and you show me your toothbrush.

Daughter:  [Pause]

Husband:  [Knowing he has her caught] Come on. Come show me your toothbrush.

Daughter:  [With tears welling up in her eyes] I don’t know where it is.

[Skip a bunch of lines.] [Obviously, the girl’s teeth were funky.]

Husband:  Daughter, I am not angry that you did not brush your teeth.  I am angry that you lied about it.

If you are a parent, you have said this. I am not angry about [your action]; I am angry that you lied about it.

In this blog, I have intentionally NOT used “lie” and “falsehood” interchangeably.  Maybe its a small, mundane technicality, but, in my mind, a “lie” and a “falsehood” are different.  In my mind, a lie is just wrong…intentional and with malice.  A falsehood, in my mind,  is a “white lie.”  Wrong….but not SO bad.  More like…sweetie, you look great in those pants.

My quote: “Once you tell a falsehood, you have to tell a dozen more lies to stick to that falsehood,” you start with a falsehood…a white lie…but you have to tell lies to make people believe that falsehood.  Falsehoods don’t start out intentional and with malice.

“NCTracks is operational and successfully processed its 1 millionth claim.”  “NCTracks is so great, so wonderful that NCTracks pays providers ahead of schedule.”  “NCTracks is on Track.”

I am not angry/upset/disappointed that NCTracks is not working for some providers.  (OK, maybe a little (or a lot)…but, to me, the fact that NCTracks is not perfect the 1st month it went “live” is not the issue). It’s the fact that DHHS is refusing to admit that serious problems exist.

The toothbrush is still packed, but DHHS is claiming to have brushed its teeth with its BFF Piraeus.

DMA’s Own Error Regarding NCTracks Causing Dentists Undue Hardship?

As a Medicaid attorney and a bloggist (is that a word?), I tend to get numerous phone calls during the day from people with “information” or “evidence” that will, if I use it correctly, “take down Medicaid.” Numerous callers claim to have “smoking guns.” First of all, I do not wish to take down Medicaid. I only wish that Medicaid recipients receive good, quality healthcare, Medicaid providers receive reasonable reimbursements , and the State of North Carolina manages Medicaid in a cost-efficient, effective manner. One can dream, right?

With all the “smoking gun” phone calls, I rarely publish a blog without considerable research. Today, I am bucking my own rule. This blog is unverified. This blog is based-off of a telephone call.  The only reason I am publishing an unverified blog is because (a) Medicaid is so crazy right now…so many changes…so many players…so many bad things happening to Medicaid providers that, I believe, the more information the better; (b) I do not believe I could ever verify this blog completely; and (c) if this blog is even partially correct, maybe, I will educate/inform some dentists who accept Medicaid.

I received a phone call today from a dental provider in the western part of North Carolina.  She gave me some pretty disturbing information about NCTracks.  According to her, (we will call her Jane), NOT ONE dental Medicaid provider has received Medicaid reimbursements from NCTracks, which went live July 1, 2013. (Now, obviously, Jane has not contacted every dentist in NC who accepts Medicaid, so this information is not verified). However, according to Jane, her information source, besides her colleagues and friends with whom she has discussed this issue, is the Division of Medical Assistance (DMA). So this is not verified, but…

Still…what if it is only 1/2 true? Then Department of Health and Human Services (DHHS) has been less than upfront regarding the success of NCTracks.

If an NCTracks problem were so widespread, wouldn’t DHHS have issued some sort of statement? So I looked.  I found:

For Immediate Release
Monday, July 8, 2013
Contact: news@dhhs.nc.gov
              919-855-4840

Raleigh, N.C. – Today, the North Carolina Department of Health and Human Services (DHHS) announced that NCTracks will successfully pay its first round of Medicaid claims this week, surpassing expectations of many health care providers.

“NCTracks is working so well after its first week in operation, we will pay many claims a full week ahead of schedule,” said Joe Cooper, Chief Information Officer for DHHS. “We are continuing to address specific technical issues as they come up, but this should be welcome news to North Carolina’s hospitals, long-term care facilities, physicians, dentists and pharmacies.”

Working so well that NCTracks will be paying providers a week early???? Really?  This same quote was published in the Triangle Business Journal three days ago in an article explaining that providers have not “sounded praise bells to quite the same tone, [but] there hasn’t been a widespread negative outcry either.”

According to Jane, who runs 6 dental practices, Jane has not received 1 penny from Medicaid since June 20, 2013 (the cut-off for billing before NCTracks went live). Almost 1 month. In order to meet payroll, Jane was forced to get a loan from a bank.  So far, Jane’s dental practice is owed approximately $300,000 in unpaid Medicaid reimbursements, no small amount, especially when Medicaid reimbursements barely cover administrative costs as it is.

To make matters worse, Jane was informed by the Division of Medical Assistance (DMA) that the Wednesday, June 17, 2013, checkwrite (EFT effective date) will not occur.  She also heard that the Tuesday, July, 23 2013, checkwrite date will not occur unless quick and drastic measures are taken.

Jane said that, at first, Jane was worried that she was not doing something correctly and that the lack of reimbursements were somehow her fault.  She contacted DMA and asked many questions. 

She heard (unverified) that DMA knows of this issue (the issue that zero dental providers are receiving reimbursements from NCTracks) and that DMA has admitted via email that DMA, itself, made a mistake that led to the nonpayment of Medicaid reimbursements to dentists.  As in, the fact that dentists have received zero reimbursements since NCTracks’ inception is due to DMA’s own fault. (Something about incorrectly linking providers’ Medicaid numbers…)

Without Medicaid reimbursements, many smaller dental practices will be forced to close because they simply cannot function without these Medicaid reimbursements; they won’t be able to make payroll.

While I readily admit that this blog is unverified, if it is correct that all (or even most) dentists are not receiving Medicaid reimbursements, then I say, “Shame!”

If this is a widespread, state-wide issue for all dental providers who accept Medicaid, I say, “Shame on you, DHHS, for not publicizing that Medicaid reimbursements are not being paid to dentists across the board.”  Many dental providers are probably, as Jane did at first, wondering what they are doing wrong.  They have probably wasted hours and hours reviewing the billing claims and trying to assess what the problem is (probably blaming the billing person at their office).

We all understand DHHS’ utter abhorrence if (a) this were true; and (b) the media found out, but, AT THE VERY LEAST, publicize the issue to the dental providers adversely affected.

NCTracks has been a heated issue for DHHS since the beginning.

Before NCTracks ever went live, the NC Office of State Auditor issued a report that NCTracks had failed to fully test a new $484 million computer system scheduled to begin processing Medicaid claims on July 1. See my blog on NCTracks.

Since July 1, 2013, when NCTracks went live, I have heard numerous complaints. But, from I have seen in the media, DHHS has touted NCTracks’ success, saying, despite some bugs (which are to be expected), NCTracks has done great.

What about the dentists?