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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“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.


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.