Blog Archives

Goodbye, 2020: New Resolutions for Health Care Providers

By Ashley Thomson. (Knicole Emanuel‘s law partner. See below for a bio).

As 2020 ends and we look forward to starting a new chapter in 2021, we offer you this little nugget of advice—a resolution that sounds deceptively easy—read your mail.  Yes, friends you heard it here first. . . the best thing you can do to protect yourself, your business, your patients, and your loved ones is to read the dang mail.  Email, text messages, real mail, carrier pigeon or messages in a bottle.  READ THEM!  

2020 brought us a lot of curve balls and unexpected events but some of those events could have been avoided had mail been opened and read.

CMS and its third party contractors hold a lot of power in the healthcare world and can cause your practice to come crashing down by hitting send or putting a forever stamp on a letter.  A regular practice of reading your mail can avoid that CMS avalanche of doom. [1]

You may be reading this and thinking, you’ve got to be crazy I always read my mail.  Or perhaps you are thinking, this is the easiest new year’s resolution yet—all I have to do is read the mail.

Don’t be too hasty with your self-confidence. This is a hard practice to establish and an even harder one to maintain.

First, you have to actually read the mail.  All of the mail.  Even the mail you think will contain bad news.  Constitutional due process requires only notice NOT successful notice. If successful notice were required, “then people could evade knowledge, and avoid responsibility for their conduct, by burning notices on receipt—or just leaving them unopened.” See Ho v. Donovan, 569 F.3d 677, 680 (7th Cir. 2009). “Conscious avoidance of information is a form of knowledge.” Id.

Second, you need a policy or procedure regarding the opening and reading of mail.  One client we worked with did not have a system for logging mail once it was received in the office.  Mail was lost.  Deadlines were missed.  Payments from the largest payer were suspended. The cost – too much to print.

It’s like that old Mastercard ad, yes, I’m talking to those of you out there who were around in the late 90s.[2] 

The cost of establishing a policy for logging in mail. . . zero.   

The cost of reading mail. . . zero.

The cost of neglecting your mail, missing deadlines, and losing your practice. . . priceless.

So, as this year ends and you contemplate ways to improve your practice in 2021, please, please, please take our advice and READ YOUR MAIL.


[1]It’s not just CMS that has holds the mailbox power.  Just ask the City of North Charleston, SC.  A motorist’s emailed complaint to the city over injuries sustained in an accident was not forwarded to the insurance carrier resulting in a multi-million dollar default judgement against the city.  See Campbell v. City of North Charleston, 431 S.C. 454,459 (SC Ct. App. 2020) (holding that “the failure to forward an email did not amount to good cause shown for failure to timely file an answer).   

[2] For those of you who have no idea what we are talking about see https://www.aaaa.org/timeline-event/mastercard-mccann-erickson-campaign-never-got-old-priceless/  

Click for past blogs with other helpful tips to avoid Medicare and Medicaid recoupments. medicaidlaw-nc.wordpress.com – Tip #2. 4. 6.

Ashley Thomson brings 20 years of extensive in-house, hospital counsel and law firm experience to our team.  Well-versed in a variety of disciplines, her emphasis is in health care, insurance and compliance, specifically medical malpractice, employment, healthcare and privacy law compliance and defense, including matters involving HIPAA. Ashley has also been heavily involved in risk management, patient safety, corporate governance, contract and policy drafting, negotiations and healthcare management. Prior to joining Practus, Ashley served as Associate General Counsel for Truman Medical Center (TMC) where she oversaw litigation, managed all aspects of their corporate compliance matters, including governmental audits and investigations, cybersecurity issues, HIPAA enforcement, 340B compliance and provider-based billing.  As their Staff Litigation Counsel, she defended and litigated medical malpractice and general liability matters on behalf of the hospital, its employees, physician group and residents. Prior to joining TMC, Ashley was an Associate Attorney for Husch Blackwell.

Ashley is an outdoors woman at heart. When she’s not working, she’s hiking, walking, working in her yard, or playing with her kids. She’s also an avid reader and a football fan especially when she’s watching her favorite team, the Kansas City Chiefs! 

Executive Orders and Presidential Memorandums: A Civics Lesson

Before the informative article below , I have two announcements!

(1) My blog has been “in publication” for over eight (8) years, this September 2020. Yay! I truly hope that my articles have been educational for the thousands of readers of my blog. Thank you to everyone who follows my blog. And…

(2) Knicole Emanuel and her legal team have moved law firms!!! We are now at PractUS, LLP. See the video interview of John Lively, who started my new law firm: here. It’s a pretty cool concept.

Click here: For my new bio and contact information.

Ok – Back to the informative news about the most recent Executive Orders…

My co-panelist on RACMonitor, Matthew Albright, gave a fascinating and informative summary on the recent, flurry of Executive Orders, and, he says, expect many more to come in the near future. He presented the following article on RACMonitor Monitor Monday, August 10, 2020. I found his article important enough to be shared on my blog. Enjoy!!

By Matthew Albright
Original story posted on: August 12, 2020

Presidential Executive Order No. 1 was issued on Oct. 20, 1862 by President Lincoln; it established a wartime court in Louisiana. The most famous executive order was also issued by Lincoln a few years later – the Emancipation Proclamation.

Executive orders are derived from the Constitution, which gives the president the authority to determine how to carry out the laws passed by Congress. The trick here is that executive orders can’t make new laws; they can only establish new – and perhaps creative – approaches to implementing existing laws.

President Trump has signed 18 executive orders and presidential memorandums in the past seven days. That sample of orders and memos are a good illustration of the authority – and the constraints – of presidential powers.

An executive order and a presidential memorandum are basically the same thing; the difference is that a memorandum doesn’t have to cite the specific law passed by Congress that the president is implementing, and a memorandum isn’t published in the Federal Register. In other words, an executive order says “this is what the President is going to do,” and a memorandum says “the President is going to do this too, but it shouldn’t be taken as seriously.”  

Executive orders and memorandums often give instructions to federal agencies on what elements of a broader law they should focus on. One good example of this is the executive order signed a week ago by President Trump that provides new support and access to healthcare for rural communities. In that executive order, the President cited the Patient Protection and Affordable Care Act as the broad law he was using to improve access to rural communities.

Executive orders also often illustrate the limits of presidential authority, a good example being the series of executive orders and memorandums that the president signed this past Saturday, intended to provide Americans financial relief during the pandemic.

One of the memorandums signed on Saturday delayed the due date for employers to submit payroll taxes. The idea was that companies would in turn decide to stop taking those taxes out of employees’ paychecks, at least until December.  

By looking at the language in the memorandum and seeing what it does not try to do, we can learn a lot about presidential limits.

The memorandum does not give employers or employees a tax break. That power rests unquestionably with Congress. The order only delays when the taxes will be collected. Like the grim reaper, the tax man will come to your door someday, even if you can delay when that “someday” is.  

Also, the tax delay is only for employers, and – again, another illustration of the limits of presidential power – it doesn’t tell employers how they should manage this extra time they have to pay the tax. That is, companies could decide to continue to take taxes out of people’s paychecks, knowing that the taxes will still have to be paid someday.

Another memorandum that the president signed on Saturday concerned unemployment benefits. That order illustrates the division in powers between the federal Executive Branch and the authority of the states.

The memorandum provides an extra $400 in unemployment benefits, but in order for it to work, the states would have to put up one-fourth of the money. The memorandum doesn’t require states to put up the money; it “calls on” them to do it, because the President, unless authorized by Congress, can’t make states pay for something they don’t want.

Executive orders and memorandums are reflective of my current position as the father of two pre-teen girls. I can declare the direction the household should go, I can “call on them” to play less Fortnite and eat more fruit, but my orders and their subsequent implementation often just serve to illustrate the limits – both perceived and real –of my paternal power.

Programming Note: Matthew Albright is a permanent panelist on Monitor Mondays (with me:) ). Listen to his legislative update sponsored by Zelis, Mondays at 10 a.m. EST.

United Behavioral Health SLAMMED by Judge for Improperly Denying Behavioral Health Care Services

We have had parity laws between mental and physical health care services on the books for years. Regardless of the black letter law, mental health health care services have been treated with stigma, embarrassment, and of lesser importance than physical health care services. A broken leg is easily proven by an X-Ray; whereas a broken mind is less obvious.

In an unprecedented Decision ripe with scathing remarks against Optum/United Behavioral Health’s (UBH) actions, a Court recently ruled that UBH improperly denied mental health services to insureds and that those improper denials were financially-driven. A slap-on-the-wrist, this Decision was not. More of a public whipping.

In a 106-page opinion, the US District Court, Northern District of California, slammed UBH in a blistering decision finding that UBH purposely and improperly denied behavioral health care benefits to thousands of mentally ill insureds by utilizing overly restrictive guidelines. This is a HUGE win for the mental health community, which often does not receive the parity of services (of physical health) that it is legally is entitled. U.S. Chief Magistrate Judge Joseph Spero spared no political correctness in his mordacious written opinion, which is rarity in today’s vitriolic world.

2019- Spero

The Plaintiffs filed a lawsuit under the Employee Retirement Income Security Act of 1974 (ERISA), saying the insurer denied benefits in violation of the terms of their insurance plans and state law. The Plaintiffs consisted of participants in UBH health care plans and who were denied mental health care services.

Judge Spero found United Behavioral’s guidelines were influenced by financial incentives concerning fully-funded and self-funded ERISA plans:

“While the incentives related to fully insured and self-funded plans are not identical, with respect to both types of plan UBH has a financial interest in keeping benefit expense down … [A]ny resulting shortcomings in its Guideline development process taints its decision-making as to both categories of plan because UBH maintains a uniform set of Guidelines for fully insured and self-funded plans … Instead of insulating its Guideline developers from these financial pressures, UBH has placed representatives of its Finance and Affordability Departments in key roles in the Guidelines development process throughout the class period.”

Surprisingly, this decision came out of California, which is notoriously socially-driven. Attorneys generally avert their eyes when opinions come from the 9th District.

Judge Spero found that UBH violated “generally accepted standards of care” to administer requests for benefits.

The Court found that “many mental health and substance use disorders are long-term and chronic.” It also found that, in questionable instances, the insurance company should err on the caution of placing the patient in a higher level of care. The Court basically cited the old adage – “Better safe than sorry,” which seems a pretty darn good idea when you are talking about mental health. Just ask Ted Bundy.

Even though the Wit Decision involved private pay insurance, the Court repeatedly cited to the Center for Medicare and Medicaid Services’ (CMS) Manual. For example, the Court stated that “the CMS Manual explains, [f]or many . . . psychiatric patients, particularly those with long-term, chronic conditions, control of symptoms and maintenance of a functional level to avoid further deterioration or hospitalization is an acceptable expectation of improvement.” It also quoted ASAM criteria as generally accepted standards, as well as LOCUS, which tells me that the law interprets the CMS Manual, ASAM criteria, and LOCUS as “generally accepted standards,” and not UBH’s or any other private pay insurance’s arbitrary standards. In fact, the Court actually stated that its decision was influenced by the fact that UBH’s adopted many portions of CMS’ Manual, but drafted the language in a more narrow way to ensure more denials of mental health benefits.

The Court emphasized the importance of ongoing care instead of acute care that ceases upon the end of the acute crisis. The denial of ongoing care was categorized as a financial decision. The Court found that UBH’s health care policy “drove members to lower levels of care even when treatment of the member’s overall and/or co-occurring conditions would have been more effective at the higher level of care.”

The Wit decision will impact us in so many ways. For one, if a State Medicaid program limits mental health services beyond what the CMS Manual, ASAM criteria, or LOCUS determines, then providers (and beneficiaries) have a strong legal argument that the State Medicaid criteria do not meet generally accepted standards. Even more importantly, if the State Medicaid policies do NOT limit mental health care services beyond what the CMS Manual, ASAM criteria, and LOCUS defines, but an agent of the State Medicaid Division; i.e, a managed care organization (MCO) deny mental health care services that would be considered appropriate under the generally accepted standards, then, again, both providers and beneficiaries would have strong legal arguments overturning those denials.

I, for one, hope this is a slippery slope…in the right direction.