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Black and Blue Medicaid Budgets, the ACA, and the Fear of the Unknown…

“The oldest and strongest emotion of mankind is fear, and the oldest and strongest kind of fear is fear of the unknown”  H.P. Lovecraft, “Supernatural Horror in Literature.”  I completely agree.  The unknown scares me way more than the known.

The unknown is what creates fear, right?  For example, my husband is scared of heights.  It is not the “heights” per se that scare him.  He says that when he is high up, he gets an abnormal and understandably disturbing sense to throw himself off the ledge.  He is scared, not of heights, but of his reaction to heights.  Similarly, remember when I had an anxiety attack while I repelled (fell without any control) down the 22-story Wells Fargo building to raise money for the Special Olympics?  To see my disastrous descend off of the Wells Fargo building, see my blog: “The Future of Managed Care in Medicaid and the Fear of the Unknown.”

But unknowns to a Medicaid budget can be disastrous.

For those of you who live in North Carolina, you probably got some snow last Wednesday.  I live in Raleigh, and we got about 3 inches.  My law firm was actually closed Wednesday. While I have to say that it takes a lot of snow to close a law firm (I mean, come on, think of how much money we lost by having a non-productive day.  Luckily, I work for a firm that cares more about the safety of its employees than the bottom line), I do live in the South.  And snow scares us (actually, not snow per se (we aren’t actually scared of the little white flakes), but the fear of the unknown…what can happen because of snow?)

A few weeks ago snow was in the forecast (not on the ground) and my daughter’s school closed.  Seriously, there was no snow, yet my daughter’s school was cancelled..  And Tuesday evening, the night before the Great Blizzard of 2014, the grocery store was slammed with people buying milk and bread (just in case we are stuck in our homes for weeks and could be on the brink of starvation due to the 3 inches of snow).  My husband, being the good southerner that he is, keeps our water running all night to prevent freezing pipes.  He also covers the vents outside with towels.

Needless to say our house was prepared for the snow.

But there are always unknowns.  Especially when it comes to Medicaid budgets.

Our unknowns regarding the Great Blizzard of 2014?  (1) No sled; and (2) Skinny, unpadded sleds = a bruised body.

We woke up Wednesday to 3 inches of snow and no sled.  And our 8-year-old was aching to sled.  How do we not have a sled? Hello…we are from the south.  It snows here maybe every 3 years.  So we run to Ace Hardware, because, according to my husband, it is family owned and run.  Ace had 4 sleds left (obviously other southerners were quicker to think of sleds than we).  Three of the sleds were very thin.  Almost like a towel, but more stiff and made of plastic.  One of the remaining sleds was thicker…a tad thicker than a boogey board with two yellow handles on each side.  Of course, my daughter chose the thicker one, leaving me with the skinny, unpadded sled.

We drove to Shelley Lake at which there is a VERY steep, almost, straight-down hill.  Seriously, I had to climb up on my knees because I couldn’t stand without sliding backward.  And, due to the skinny, unpadded sled, as I shot down the hill, I felt every bump…every jolt…every drop….on my knees, elbows and belly.  But it was fun, so we kept at it!  My daughter yelled, “Best day ever!” (Which made me smile ear to ear).

My other unknown?  Skinny, unpadded sleds equal a sore body with black and blue knees and elbows after 4-5 hours  of sledding (and climbing up the steep hill).  Again, chalk it up to me being a southerner.  Literally, the last time I sledded was when Madison was 4…the Great Blizzard of 2010….and I didn’t have a skinny, unpadded sled then.

So here I am today, writing this, but unable to cross my legs or wear skirts above my knees or people would think that….hmmmm…..what would people think if they saw my swollen, bruised knees?  That I jumped up and down on my knees?  That something fell on my knees?  That I fell on my knees?  That someone beat me up…but only my knees?  It is an odd thing to have bruised knees.  They are very difficult to explain.

So too are Medicaid budgets.  And Medicaid expenditures.  Something always comes up.  There is always grey (or black and blue).  And they are very difficult to explain.

Think about it…we expect our legislature to come up with how much we will spend the future year based on the past.  The General Assembly does not have a crystal ball (that I know of).  Yet we expect the budget to be correct, and we expect to not exceed the budget.  Otherwise we are over the budget.  And bruised.

Last year, 2013, State Auditor Beth Wood stated that we had exceeded the State Medicaid budget by hundreds of millions of dollars for at least three years running.  She estimated that going over the Medicaid budget by so much money cost the tax payers $1.2 billion.  But how can you budget medical necessity for Medicaid recipients?

Well, NC is asking the feds for permission to decrease Medicaid spending by freezing Medicaid reimbursement rates.  We have approximately 10 or more requests to the Center for Medicare and Medicaid Services (CMS) to freeze the Medicaid reimbursement rates for a range of Medicaid services. 

How else do we try to decrease Medicaid spending?  By hiring some managed care organizations (MCOs) to manage behavioral health and placing the risk of going over budget on the MCOs.  Hello, people, rationally, how do you think that the risk-based model will be implemented by the MCOs.  Surely the MCOs will be happy to have lots of providers in their catchment areas and happy to have lots of recipients so the MCO can pay out lots of money and receive little-to-no profit.  And we live in Disneyland, and all the animals help us clean our homes!

The concept of MCOs managing behavioral health is not inherently bad.  The WAY in which NC implemented MCOs and the pay-structure IS inherently bad.  Even CMS agrees with me.  See my blog: “CMS Declares the Payment Structure for the MCOs Violates A-87…”So what Happens Now?”

So, besides freezing reimbursement rates and outsourcing risk, how else could we manage Medicaid costs?

DECREASE ADMINISTRATIVE COSTS.

Medically necessary Medicaid services should not be decreased.  Reimbursement rates should be raised, not slashed.  Medicaid providers should have the incentive to accept Medicaid, not the converse.

Decreasing administrative costs accomplishes decreasing Medicaid expenditures without harming the medically necessary Medicaid services to Medicaid recipients.

On the national level, between 2010 and 2011, total Medicaid expenditures increased by 6.4%.  However, in 2012, the federal Health and Human Services Department (HHS) estimates that Medicaid expenditures will increase only 1.1%.  HHS opines that the slower growth of Medicaid expenditures is because of States’ efforts to limit growth in light of budget constraints and the knowledge that the States will be liable for more Medicaid recipients (if such state expands) after the temporary federal matching reimbursement under the Affordable Care Act (ACA).  In other words, we are spending less on Medicaid services.

Just to  get perspective on how important Medicaid is to our overall budget and tax dollars, total Medicaid spending in 2011 was $432.4 billion with the feds paying $275.1 billion or 64% and the states paying $157.3 billion or 36%.  That is a lot of tax dollars!

In 2011, nationally, administration costs increased from 2010 by 8.7%.  This increase in the highest percentage increase in administrative costs since 2003.

And North Carolina’s administrative spending is abnormally high.

Back in October 2013, our State Auditor Beth Wood was quoted saying, “The administrative spending for the state’s Medicaid program is 38 percent higher than the average of nine states with similarly sized Medicaid programs,” Wood maintained. “While those states on average have administrative costs of 4.5 percent, the state of North Carolina spent over 6 percent of its total budget on administrative cost. In real dollars that means that the state is spending $180 million more than the average of our peer states.”

$180 million more than peer states spent on administrative costs…not services to Medicaid recipients…not reimbusements to providers accepting Medicaid….just for administrative costs.

On a national level, Medicaid administrative costs are only expected to increase.

Over the next 10 years, Medicaid expenditures are projected to increase at an average annual rate of 6.4% and to reach $795.0 billion by 2021.  Average enrollment is projected to increase at an average annual rate of 3.4% over the next 10 years and to reach 77.9 million in 2021.  See CMS report.

 Because of the ACA , Medicaid expenditures are expected to increase by a total of $514 billion from 2012 through 2021.  See id.

Nationally, Medicaid spending on program administration totaled $20.2 billion in 2011—$11.4 billion in Federal expenditures and $8.9 billion in State spending.  See id.

Total Medicaid expenditures grew slightly faster in 2011 than in 2010, at a rate of 6.4 percent. Expenditures on benefits grew somewhat more slowly (6.3 percent) than in 2010, but administration expenditures increased at the fastest rate since 2003 (8.7 percent).  See id.

The point?

Each year we have more citizens who qualify for Medicaid.  Because of the ACA, we have the largest increase in the number of Medicaid recipients, quite possibly, ever in the history of Medicaid, except maybe during its inception.

Yet, the number of providers willing to accept Medicaid is not rising.  “The average rate of acceptance among family physicians, dermatologists, cardiologists, orthopedic surgeons and obstetrician/gynecologists in all 15 markets surveyed was 45.7 percent last year, according to data gathered from nearly 1,400 medical offices last year.”  “The 2014 survey showed a drop from 55.4 percent acceptance in 2009.”  See 2014 Survey by Merritt Hawkins.

Here is the formula:

More Medicaid recipients + Higher administrative costs + Fewer providers accepting Medicaid = Catastrophe? Medicaid recipients not receiving the medically necessary services? The cost of administrating Medicaid takes away from medically necessary services to Medicaid recipients?

Black and blue Medicaid budgets?

Here in NC, we have opted to not expand Medicaid.  However, not expanding does not equal less Medicaid recipients (obviously it means less than had we expanded), but regardless of expansion, the number of Medicaid recipients increase every year.  Just like our general population grows.

While NC has not expanded, NC has not cut Medicaid administrative costs.  Instead, we are freezing reimbursement rates and allowing the MCOs to cut mental health services and terminate providers.  Yet, our Medicaid population continues to grow, despite not expanding Medicaid.  More and more providers are opting to not accept Medicaid.

“North Carolina spent over 6 percent of its total budget on administrative cost. In real dollars that means that the state is spending $180 million more than the average of our peer states.”  Beth Wood.

“We exceeded the State Medicaid budget by hundreds of millions of dollars for at least three years running.”

So what will become of our Medicaid state budget?  Will our budget get black and blue from unexpected bumps in the road?  Do we have a sled that is too skinny and unpadded?

The worst fear is the fear of the unknown.

Medicaid Card Warning: This Card Could Cause the State to Recoup From Your Estate!

Have you ever wondered about warning labels? I mean, some of them are so ridiculous that you have to wonder who the person was that created the need for such a ridiculous warning label.

For example, the warning label on the sleep-aid Nytol warns, “May cause drowsiness.” I hope so!

This weekend my husband and I let friends borrow our chainsaw.  The warning on the chainsaw says, “Do not hold on wrong side of chainsaw.”  Really? What moronic person would grab a chainsaw by the saw blade?  But the warning is there, so there must have been at least one person who held the chainsaw by the saw blade, turned on the saw and…you know.

Then comes my personal favorite…my egg carton from the grocery store states, “This product may contain eggs.” My egg carton!  Really?

Medicaid cards should come with warning labels.  Multiple warning labels.  Such as:

“Warning: You may not be able to find a physician willing to accept Medicaid.”

Or

“Warning:  This may not be your card. Review the name prior to use.”

Or

“Warning:  This card could lead to you losing your home.”

What?

For most people, your home is your biggest investment in your lifetime.  Many people want to pass their houses down to children, or, at least, give the children the right to sell the home and keep the money.  To some, the home is the biggest inheritance…maybe the only inheritance.

So how can NC take your home if you are on Medicaid?

According to NC Department of Health and Human Services (DHHS), the estates of Medicaid recipients may be subject to estate recovery if (1) The Medicaid recipient applied on or after October 1, 1994.  (Considering it is 2014, I would guess that most people fall into this category); and one of the following:

(a) is under age 55 and an inpatient in a nursing facility, intermediate care facility for the intellectual developmentally disabled, or other medical institution, and cannot reasonably be discharged to return home; or

(b) is 55 years of age or older and is living in medical facility and receiving medical care services, or home and community-based services, or In Home Care Services (IHC). 

Also, In Home Care Services (IHC) claims for SA recipients ages 55 and over are subject to Medicaid Estate Recovery.

This estate recovery is not new.  Recently, I have seen a few articles on the internet that state that this estate recovery is a new addition to the Affordable Care Act (ACA).  This is incorrect information.  In 1965, estate recovery was optional and states could only recoup Medicaid costs spent on those 65 years or older.  In 1993, Congress passed a budget bill that required states to recover the expense of long-term care and related costs for deceased Medicaid recipients 55 or older. The 1993 federal law also gave states the option to recover all other Medicaid expenses.  The only change that the ACA made to the estate recovery rule is, by expanding Medicaid, providing more estates to be recovered.

“Warning: Medicaid can take your home!”

The estate recovery oddly seems to disproportionately affect people over 55 years of age.

DHHS does state that it will NOT seek a lien on your property while you are alive.  DHHS only seeks the estate recovery after your death.  DHHS also states that estate recovery is waived in some circumstances.  What circumstances are those? And why wouldn’t those circumstances apply to everyone?

What exactly can the state seek to recover?

“At a minimum, states must recover amounts spent by Medicaid for long-term care and related drug and hospital benefits, including Medicaid payments for Medicare cost sharing related to these services. However, they have the option of recovering the costs of all Medicaid services paid on the recipient’s behalf. The majority of states recover spending for more than the minimum of long-term care and related expenses.”  (emphasis added).  See HHS’s website.

Isn’t Medicaid intended to be free health care for low-income and needy people? If the state can recover from a person’s estate after death, did that person really receive free health care? Or was the health care merely a loan?

Warning on the Medicaid card: “Warning! By accepting Medicaid, you are authorizing the state to recover from your estate, and, in some circumstances, your home.” 

But the warning is very tiny print.

Study Shows the ACA Will Not Lead Physicians to REDUCE the Number of Medicaid Recipients, Supply and Demand, and Get Me My Pokemon Cards!

A recent “study” by Lippincott, Williams, and Wilkins is entitled “Doctors Likely to accept New Medicaid Patients as Coverage Expands.”  (I may or may not have belly laughed when I read that title).  See my blog “Medicaid Expansion: Bad for the Poor.”

The beginning of the article reads, “The upcoming expansion of Medicaid under the Affordable Care Act (ACA) won’t lead physicians to reduce the number of new Medicaid patients they accept, suggests a study in the November issue of Medical Care, published by Lippincott Williams & Wilkins, a part of Wolters Kluwer Health.”

The study was published October 16, 2013. (BTW: From what I can discern from the article, the title actually means that physicians will be forced to accept more Medicaid patients because there will not be additional physicians accepting Medicaid).  Odd title.

According to this study, the ACA will not cause doctors to reduce the number of Medicaid patients.  What does this study NOT say?  Nothing indicates that the ACA, which will allow millions more of Americans to become eligible for Medicaid, will cause MORE physicians to accept Medicaid.  Nor does the study state that the ACA will cause physicians to accept MORE Medicaid recipients.

Am I the only person who understands supply and demand?

Anyone remember the 1999 Toys.R.Us.com debacle? On-line shopping was just heating up.  I was in law school, and I, as well as millions of others, ordered Christmas presents on-line from Toys R Us.  I ordered a bunch of Pokemon trading cards for a nephew…remember those? Me either…I just bought them for my nephew.  Toys R Us promised delivery by December 10th. 

Toys R Us was, apparently, a very popular store that year, because Toys R Us is unable to package and ship orders in time to meet the December 10th deadline.  Nor could Toys R Us meet the deadline of Christmas.  Employees were working through the weekends.  About two days before Christmas, and just in time to create last-minute havoc during Christmas time, Toys R Us sends out thousands of emails saying, “We’re sorry.”

Obviously, Toys R Us was slammed by the media, and thousands of consumers were highly ticked off…including me.

I had to go to the mall (a place to which I detest going) on Christmas Eve (the worst day to shop of the entire year, except Black Friday, which I also avoid) to get my nephew a present.

Toys R Us learned its lesson.  It outsourced its shipping to Amazon.com, which, obviously, has the whole shipping thing down pat.

Hypothetical:

50 million people are currently eligible for (and receive) Medicaid services (these numbers are purely fictional, as I do not know the real numbers…I basically estimated 1 million per state, which, I am sure, is an underestimation).  Say there are 3.5 million physicians that accept Medicaid (70,000/state, which is probably a high estimation, when we are considering only physicians and not health care providers, generally). 

Our hypothetical yields 14.28 Medicaid recipients per physician.  Or a ratio of 14.28:1.

Media state that, if NC expanded Medicaid, that 587,000 more North Carolinians would be eligible for Medicaid if NC expanded Medicaid.

Using NC as a state average, 29.35 million more people would be eligible for Medicaid if all states expanded Medicaid (obviously not all states are expanding Medicaid, but, in my hypothetical, all states are expanding Medicaid).  This equals a total of 79.35 million people in America on Medicaid.

But….no additional physicians….

Because, remember, according to the Lippincott study, the upcoming expansion of Medicaid under the Affordable Care Act (ACA) won’t lead physicians to reduce the number of new Medicaid patients they accept.  But the ACA does not lead more physicians to accept Medicaid or physicians to accept more Medicaid patients.

This brings the ratio to 22.67:1.  8 1/2 new patients per one physican…and, BTW, that one physician may not be accepting new Medicaid patients or may not have the capacity to accept more Medicaid patients.  It’s a Toys R Us disaster!!!  No one is getting their Pokemon trading cards!!!

Why not? Why won’t the ACA lead more physicians to accept Medicaid?  Why won’t the ACA lead physicians to accept more Medicaid recipients?

Didn’t the ACA INCREASE Medicaid reimbursement rates?  Wouldn’t higher reimbursement rates lead more physicians to accept Medicaid and physicians to accept more Medicaid recipients???  I mean, didn’t you hear Obama tout that Medicaid rates would be increased to Medicare rates?  I know I did.

One average, Medicaid pays approximately 66% of Medicare reimbursement rates.  Obviously, every state differs as to the Medicaid reimbursement rate.

The ACA, however, slashes the Medicare budget by 716 million from 2013 to 2022.  The cuts are across-the-board changes in Medicare reimbursement formulas for a variety of Medicare providers, including hospitals, nursing homes, home health agencies, and hospice agencies.   Furthermore, the ACA creates the Independent Payment Advisory Board (IPAB), which is intended to determine additional Medicare reimbursement rate cuts. IPAB will be creating a new Medicare spending target; it will be comprised of 15 unelected bureaucrats.  The board will be able to make suggestions to Congress to reign in Medicare spending, and one of the biggest tools the IPAB has is cutting physician reimbursement rates.

It’s the old smoke and mirrors trick…We will raise Medicaid rates to Medicare rates…pssst, decrease the Medicare rate so we can meet our own promise!!

While I am extremely happy to hear that, at least according to the Lippincott study, the ACA will not lead physicians to reduce the number of Medicaid patients they accept, I am concerned that the ACA will not lead more physicians to accept Medicaid and physicians to accept more Medicaid recipients.

In fact, the study states that “[t]he data suggested that changes in Medicaid coverage did not significantly affect doctors’ acceptance of new Medicaid patients. “[P]hysicians who were already accepting (or not accepting) Medicaid patients before changes in Medicaid coverage rates continue to do so,” Drs Sabik and Gandhi write.  I bet the Drs. did not ask, “Would you continue to accept Medicaid, if you knew that your practice would endure more audits, post-payment reviews, possible prepayment reviews, and, in general, suspensions of reimbursements if anyone alleges Medicaid fraud, irrespective of the truth?”

Which tells me…hello…more Medicaid recipients, not more doctors!! Even if the physicians already accepting Medicaid COULD accept additional Medicaid recipient patients, each physician only has a certain amount of capacity.  To my knowledge, the ACA did not increase the number of hours in a day.  Supply and demand, people!!

Where are my Pokemon cards???!!!

NC Medicaid Providers: “Credible Allegations of Fraud?” YOU ARE GUILTY UNTIL PROVEN INNOCENT!!

“Credible allegations of fraud.”  What does that mean???

As it pertains to Medicaid, “credible allegations of fraud” was first introduced into law by the Affordable Care Act (ACA) in 2010.  The Centers for Medicare and Medicaid (CMS) issued its Final Rule February, 2, 2011, and the Informational Bulletin in March 2011.

As you can see, “credible allegations of fraud,” as pertaining to Medicaid, is a relatively new concept.  But what does it mean?  The ACA does not define “credible allegations of fraud.”

I know what “allegation” means.  I also know allegations are not always true.  I also know allegations can change your life. 

When I was a senior in high school, I had been dating my high school sweetheart for 2 years.  An acquaintance, and an apparently, mean-spirited girl, alleged that my boyfriend cheated on me with another girl.  I was so angered and so hurt that I called up my boyfriend immediately and broke up with him.  For weeks, my boyfriend hounded me, professing his innocence.  But I was not to be swayed.  I refused phone calls, avoided seeing him, and publicly disparaged him to my friends.  20 years later I saw him.  I asked him whether he had really cheated on me, knowing that he had no reason to lie now (he is married with 4 children; I am happily married with one child).  But I was just curious because that allegation that he had cheated changed both our lives.  I am not saying that had it not been for the allegation that he and I would be together…not at all…in fact, I am sure we would have eventually broken up.  The point is that the allegation that he cheated, for good or for bad, changed our lives.  And, to me, he was guilty based on the allegation.

20 years later I found out that the allegation was false.  He never cheated.  But his innocence did not change the consequences of the accusation.  He was guilty until proven innocent.

Similarly (and more importantly), a mere accusation that a Medicaid provider is undergoing abhorrent billing practices or committing Medicaid fraud, and without any proof, can change a provider’s life.  A mere allegation of fraud suspends a Medicaid provider’s reimbursements.  The consequence of which can be dire…You are guilty until proven innocent.  Just like my boyfriend.  The accusation alone made him guilty.

According to 42 C.F.R. 447.90, “This section implements section 1903(i)(2)(C) of the Act which prohibits payment of FFP with respect to items or services furnished by an individual or entity with respect to which there is pending an investigation of a credible allegation of fraud except under specified circumstances.”  FYI: FFP stands for Federal Financial Participation (or Medicaid reimbursements in the vernacular).

Section 1903(i)(2)(C) of the Social Security Act (SSA) states that no payments shall be paid to “any individual or entity to whom the State has failed to suspend payments under the plan during any period when there is pending an investigation of a credible allegation of fraud against the individual or entity, as determined by the State in accordance with regulations promulgated by the Secretary for purposes of section 1862(o) and this subparagraph, unless the State determines in accordance with such regulations there is good cause not to suspend such payment.”

But what does “credible allegation of fraud” mean? Where is the definition?  Not in the SSA.

On March 25, 2011, CMS issued an Informational Bulletin in which “credible allegations of fraud” is defined…sort of…

The Informational Bulletin states, “In the final rule, CMS provides certain bounds around the definition of “credible allegation of fraud” at 42 C.F.R. § 455.2. Generally, a “credible allegation of fraud” may be an allegation that has been verified by a State and that has indicia of reliability that comes from any source. Further, CMS recognizes that different States may have different considerations in determining what may be a “credible allegation of fraud.” Accordingly, CMS believes States should have the flexibility to determine what constitutes a “credible allegation of fraud” consistent with individual State law. However, a credible allegation of fraud, for example, could be a complaint made by an employee of a physician alleging that the physician is engaged in fraudulent billing practices,  i.e., the physician repeatedly bills for services at a higher level than is actually justified by the services rendered to beneficiaries. Upon State review of the physician’s billings, the State may determine that the allegation has indicia of reliability and is, in fact, credible. “

1. An allegation

An allegation by its very definition is “a claim or assertion that someone has done something illegal or wrong, typically one made without proof.” See Wikipedia.  Without proof!!!  Why without proof? Because an allegation is preliminary…an accusation…not a conclusion. Girl alleges my boyfriend cheated on me.

2. Verified by a State

Makes sense to need to be verified…

2. Indicia of reliability

Indicia? Indicia means “distinctive marks: indication.” See Dictionary.com.  Not quite sure what that means, but indicia of reliability does not sound like a very high threshold.  Nothing like preponderance of the evidence or beyond a reasonable doubt.  Could be as low a threshold as I applied when the girl alleged my boyfriend cheated on me.

3. Comes from any source

Are you kidding me?? So, if I were a Medicaid provider, my ex-husband, out of spite and hatred, could call up Patrick Piggott over at Program Integrity (PI) and accuse me of Medicaid fraud…or the disgruntled employee I fired….or my next door neighbor who is angry about the bush I planted on his property…you get the point.

Why is it important what the definition is of “credible allegation of fraud?”

As a Medicaid attorney, I represent Medicaid providers (duh).  The point is that I have seen the dire consequences, first-hand, to many, many a Medicaid provider accused of “credible allegations of fraud.”  Here are a few, real-life examples (names have been changed to protect the innocent):

  • Provider Leroy is accused of “credible allegations of fraud.”  Leroy is placed on prepayment review and all Medicaid reimbursements are suspended.  Leroy provides residential services (the people he serves actually live in his home because of severe mental illnesses).  Without Medicaid reimbursements, Leroy cannot pay the mortgage, his staff’s hourly wages, or anything else.  He acquires a $200,000 loan to help him through, and the interest is high.  He truly thinks that he will get off prepayment review and save his company and his Medicaid recipients from not having a home or Medicaid mental health services.  After 6 months of barely sliding by, Leroy receives a Notice of Termination terminating his Medicaid contract with the State.  (It is important to note that the termination was based of a faulty audit by an inept contractor).  He declares bankruptcy and all the Medicaid recipients are discharged to the homes that could not care for them in the first place.  The “credible allegation of fraud?” It came from a disgruntled employee.
  • Provider Lacey receives a Tentative Notice of Overpayment (TNO) in the amount of over $2 million based on “credible allegations of fraud.”  Provider Lacey (after her initial heart attack) hires Attorney Clueless.  Clueless appeals the TNO and gets the overpayment amount reduced to $1.5 million.  Lacey does not have $1.5 million and asks Clueless to appeal again.  Clueless fails to appeal the overpayment by the appeal deadline, and Lacey gets a judgment entered against her and her company.  Lacey’s husband is sick and tired of hearing about the Medicaid audit and abandons her and her two children.  Lacey declares bankruptcy.  Lacey used to support herself and her family.  Now North Carolina does.  The “credible allegation of fraud?” Lacey’s husband (apparently he had issues WAY before he left).
  • Provider Larry receives notice from a managed care organization (MCO) terminating his Medicaid contract based on “credible allegations of fraud” and demanding a $700,000 recoupment.  Larry also hires Clueless.  Clueless files a lawsuit against the Department of Health and Human Services (DHHS) and the MCO.  Clueless did some homework and actually makes a good argument in court.  But by the time Clueless gets to court, 4 months has passed and Larry racked up $50,000 in legal fees.  Larry can’t pay the attorney fees.  Clueless withdraws as counsel.  Larry goes bankrupt.  The 400 Medicaid recipients that his company serviced do not receive the health care needed.  The “credible allegation of fraud?” One of his own recipients receiving substance abuse services in a state of incoherence while on crack cocaine.
  • Provider Lucy receives notice from the Medicaid Investigative Department  (MID) that she is under criminal investigation based on a “credible allegation of fraud.”  Lucy does not have enough money to hire an attorney, so she opts for the public defender, who knows nothing about Medicaid and is also named Clueless.  The public defender did not even review Lucy documentation because she did not understand the complex system of Medicaid.  Clueless provided poor representation, and Lucy was sentenced to 5 years in prison.  Lucy said, “I was the first in my family to get a PhD and the first to go to jail.”  The “credible allegation of fraud?”  Her local competitor.
  • 15 providers in New Mexico, based on “credible allegations of fraud,” have their Medicaid reimbursements suspended.  The 15 providers cannot pay staff, rent on buildings, and other bills.  The State of New Mexico brings in Arizona providers to replace the 15 Medicaid providers.  The Arizona provider takes over the 15 providers’ buildings, most staff and all consumers.  The 15 providers are out of business.  Without a trial.  Without even reviewing the evidence against them.  Based on a mere allegation of fraud, 15 providers go bankrupt…lose their careers…are unemployed… The “credible allegation of fraud?” Unknown.

Remember “credible allegation of fraud” is preliminary, and, at times, without any proof, yet the consequences are dire. 

Innocent until proven guilty is a bedrock principle in the American justice system.  Yet, innocent until proven guilty does not apply to Medicaid providers.  Our founding fathers created the concept of innocent until proven guilty.  While innocent until proven guilty is not explicitly codified in the Bill of Rights, the presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.

Here’s the problem….presumption of innocence only applies to criminal law.  Even when the consequences of a civil action is so monumental, so dire, so irreparable, the presumption of innocence does not apply.

So “credible allegation of fraud?”  It does not matter what the definition is.  The fact is that if ANYBODY alleges a “credible allegation of fraud” against you, you are guilty.  You are my boyfriend who never cheated on me, but a girl alleged that he did cheat. 

No evidence…You are GUILTY based on the ALLEGATION of fraud!

Credible?

Government Shutdown: No Medicaid Funds Available in D.C., So Why Am I Still Getting My Mail!

Hey, have you heard??? Our federal government has shut down. So why am I still getting mail???

Unless you have lived under a rock for the past couple weeks, you are aware that our esteemed federal government has shut down.  At least…partially.  I keep getting mail.  Social security is still getting paid.  But don’t you dare try to visit a national monument…those are off-limits!! Really? Who decided what gets shut down and what stays open?  How is it that I still get my cable bill, but cannot visit Yellowstone National Park??

How is all this tomfoolery affecting Medicaid?  Minimally, in most areas, but Medicaid fundings HAS STOPPED in Washington D.C.

Why stop Medicaid funding in D.C. when the federal air traffic controllers are still working.  The State Department continues processing foreign applications for visas and U.S. applications for passports.  The federal courts are open.  The National Weather Service is still working.  Student loans are still getting paid. The Veterans’ hospitals are all up and running.  The military is still working.  I guess, Obama and White House staff are still working. (Although Obama could be on the golf course).  The Post Office is delivering mail.

Yet, here are some random federal actions and agencies that are actually stopped/closed:  Food safety inspections are suspended; U.S. food inspections abroad have also been stopped.  Auto recalls and investigations of safety defects are stopped.  Taxpayers, who filed for an extension in the spring, still have to pay their taxes by today, yet the IRS is not processing tax returns (How does this make sense??). The Consumer Product Safety Commission (CSPC) is not working.  (Great, after the CPSC starts working again, there are sure to be numerous lawsuits based on new product defects that have been placed in the market over the last 2 weeks).  The Environmental Protection Agency (EPA) has ceased to run, which means we have two weeks of allowable pollution.  Many at the Federal Bureau of Investigations (FBI) and the federal housing agency are furloughed.

How does this shutdown make any sense?? Who determined that the IRS should not process tax returns, but should accept taxes?  Who decided that safety inspections should be stopped, but passports should still be processed?

That safety inspections of food and products should halt, but students should still get federal loans.

Where is the logic?

It is as if someone said, “Shutdown the federal government!! Except not the mail, passports, and the weather service…keep those running!”

And then Medicaid in D.C…. Why did Medicaid funding stop only in D.C.??  While I still think if the mail is being delivered that D.C. providers could get Medicaid fundings, I will attempt to explain the illogical reason below:

Because D.C. is not a state.  D.C. is a local government without a state, so its budget must be authorized by U.S. Congress.  And Congress has not passed a budget.

D.C. has $2.7 billion budgeted for Medicaid, but providers are getting nothing (and, quite possibly, some recipients).  I can only imagine how this is negatively impacting health care providers in D.C. I am sure many of the providers are still rendering services unpaid.  But some, I would imagine, are closing up shop.  I know I could not last financially without a paycheck for 3 months.  I am sure many of the D.C. providers are no different.

But it still makes no sense.  Just like NC, D.C. pays for about 30% of Medicaid with the federal government reimbursing about 70%.  If NC’s federal reimbursements are still being paid, why not in D.C.?

And why am I still getting mail????

Well, my heart goes out to all the Medicaid providers and Medicaid recipients in D.C.  I hope you receive Medicaid fundings very soon.

Although, at least D.C. providers know that, at some point, the Medicaid funds will be funded; whereas in NC we still have NCTracks.

Medicaid Alert: Arkansas Medicaid Going Private? Others To Follow? Should NC?

On September 27, 2013, the Centers for Medicare and Medicaid (CMS) approved Arkansas’ request to begin a Private Option demonstration.  Arkansas is the first state to receive approval for a “private option” as an alternative to Medicaid expansion.

Remember my “A Modest Proposal?”  Providing Medicaid recipients with private insurance….

Basically, Arkansas will accept federal money for Medicaid expansion, but instead of expanding Medicaid, Arkansas will purchase private insurance for these “newly eligible” Medicaid recipients, adults who make $15,280 or less.  Those individuals who earn up to 138 percent of the poverty line — or $15,415 per year — would purchase subsidized private insurance through the state’s insurance exchange.  From my understanding, the federal funds will cover the newly eligible recipients’ premiums and any co-pays above the co-pays set by statute.

Coverage is to begin January 2014, although enrollment opened today.

Arkansas estimates that 225,000 individuals will be eligible for the demonstration project.  Iowa has submitted a similar request for a “private option” program.  CMS has not yet ruled on Iowa’s request.  Likewise, Pennsylvania Governor Corbett submitted a request to CMS based of the Arkansas model.

It seems that some Republican governors are thinking outside the box to provide health care coverage for additional Medicaid recipients without merely providing the newly eligible simply a Medicaid card.  Because, remember, receiving health care is completely different from receiving health insurance.  Having insurance does not always allow Medicaid recipients to receive health care.  Obviously, many provider refuse to accept Medicaid.  But these newly eligible Medicaid recipients will have health care…with private insurance…just like I have…or you have….

And I ask you…What is more important….handing a person a Medicaid card?…Or providing that person with quality health care?

To Expand Or Not To Expand Medicaid: A Nationwide Draw?

Who likes a tie (or a draw) in sports? Not me!

In the last few years, I have noticed that, increasingly, parents of young children in sports are not keeping score.  You can go to a ten-year-old’s soccer game and ask the score, only to hear, “Oh, we don’t keep score.  We believe that everyone is a winner.”

Without stepping up onto my soapbox, let me just say I think “scoreless games” are as worthless as the nonexistent scores themselves.  I mean, come on, our country was founded on doing your best, working hard and receiving just compensation for hard work. (Not to mention that I grew up participating in competitive sports (gymnastics), and I truly believe that my participation in a competitive sport has contributed to my work ethic today).

Even Ashton Kutcher, during a recent Teen Choice Awards speech, surprised many with a speech about hard work and that opportunity looks a lot like hard work.

But, it is a different story when the teams actually keep score and the end result is still a draw.  When you keep score and the result is a draw, generally, that means that two teams with similar ability played and both played hard and both kept one another at bay.

Like the 1996 hockey game between Colorado Avalanche and Buffalo Sabres…both teams bragged it had the best goalie.  They played (and kept score) and recorded a shutout (0-0) tie game.  Apparently, both goalies were equally great.

Going to Medicaid expansion. That’s an old topic for North Carolina, right? But not for the U.S…

Yes, Governor McCrory nixed NC Medicaid expansion in NC.  Which, BTW, in my humble opinion, was a smart choice.  But, before everyone starts screaming cuss words at the computer screen, read my blog: Medicaid Expansion: Bad for the Poor.

But, remember, other states are still wrestling with the idea of Medicaid expansion.

Decisions are being made every day.  Just yesterday, Wyoming lawmakers announced that they were considering an alternative to Medicaid expansion. (As in, it would pretty much be Medicaid expansion, but named something else to avoid the appearance of concurring with the Affordable Care Act (ACA)).

So what is each state’s stance on Medicaid expansion?

Go figure….close to a tie.

Here is each state’s stance on Medicaid expansion as of July 26, 2013:

DB_medicaid_map

So the score is 28-22 (counting those states “leaning” as decided).  Not exactly a tie, but pretty close.

The tie is especially interesting when you consider that the “score” of Republican to Democrat governors in the U.S. is 30-20.

image

The red states denote Republican governors; the blue states elected Democratic governors.

Although, remember, 18 states still have not decided whether to expand.  Which means, the score could be 46-4 or 10-40.  Whew….neither of those scores is a tie!

So what does this “close to a tie” in Medicaid expansion mean? Especially with the majority of governors nationwide affiliated as Republicans…Anything?

Maybe not.

But maybe.

But, at least, we are keeping score.  At least both teams are playing to the best of its ability.  In the end, there will be a winner.

As there should be.

Hopefully, in the end, the winners will be the Medicaid recipients. (One can hope).

2013 Health Care Today: Knicole C. Emanuel Will Be a Panelist as Medicaid Expert

For anyone interested, the Triangle Business Journal, is hosting a Health Care symposium discussion, which will mainly revolve around the issues affecting employers, health care providers, insurance and benefits consulting companies as everyone gets ready for the implementation of federal health care law in 2014.  I am sitting as a panelist for the discussion.

Here is the link: http://www.bizjournals.com/triangle/event/87901#eventDetails

Here is a description:

2013 Health Care Today

How will the upcoming health care changes affect small businesses and their employees? Join us to find out!

  • When: Thursday, May 2, 2013,7:30am-9:30am Add to my calendar
  • Where: Sheraton Imperial4700 Emperor Blvd. Durham NC 27703

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  • Suggested Dress: Business

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2013 Health Care Today:  Your Impact, Your Dollars

How will the upcoming changes affect small businesses and their employees?

The symposium discussion will mainly revolve around the issues affecting employers, health care providers, insurance and benefits consulting companies as everyone gets ready for the implementation of federal health care law in 2014.

Moderator:  Triangle Business Journal Health Care Reporter Jason deBruyn

Panelists: 

  • Dr. Allen Dobson, President and CEO of Community Care of North Carolina
  • Rick Kelly, Senior Vice President of Progressive Benefit Solutions
  • Adam Searing, Director of Health Access Coalition for the North Carolina Justice Center
  • Brad Wilson, President and CEO of Blue Cross and Blue Shield of North Carolina
  • And me:) Knicole C. Emanuel, Medicaid Attorney

More panelists to be announced soon…

Join Triangle Business Journal as a panel of experts discuss these very important changes in the health care rules that could have a profound impact on our economy.

Post-Sequester Cuts, the ACA, and the Federal Government: Damning Effects on Medicaid

One week has passed since the infamous federal sequester deadline. Let’s re-assess: Does the Sequester Affect Medicaid?

Remember, according to the federal government, the Medicaid budget was exempt from the across the board slashes in budgets.

However, the following sequester cuts will have a direct effect on Medicaid:

  • $44 million cut from the Centers for Medicare and Medicaid Affordable Insurance Exchange grants;
  • $168 million cut from Substance Abuse and Mental Health Services Administration;
  • $75 million cut from the Aging and Disability Services Programs;
  • $17 million cut from Housing Opportunities for Persons with AIDS;
  • $19 million cut from Housing for the Elderly;
  • $57 million cut from the Health Care Fraud and Abuse Control;
  • $51 million cut from the Prevention and Public Health Fund; and
  • $27 million cut from the State Grants and Demonstrations.

Let’s analyze the first cut: $44 million from the Affordable Insurance Exchange.  The Affordable Insurance Exchange grants is an intregal part of the Affordable Care Act (ACA).  The ACA directs the U.S. Department of Health and Human Services (“HHS”) to provide states with funding to support planning, implementation and operation of state exchanges.  Already every state except Alaska received an initial allotment of up to $1 million in planning grants  in the fall of 2010. North Carolina already received $86,357,315.

As I am sure everyone is aware, NC has opted out of Medicaid expansion.  However, the ACA requires an insurance exchange program.  On February 12, 2012, Gov. McCrory announced NC’s intent to allow the federal government to operate the exchange.

So, now, our health care exchange program will be only as good as the federal government makes it, which is a scary prospect in my mind, especially in light of the near certain fact that the federal government is in such financial stress that it will not be able to uphold its end of the bargains under the ACA.  Already?

I wonder if the states accepting the federal dollars for Medicaid expansion are re-thinking those decisions.

Last week, Charles P. Blahous, III, who has served as a public trustee for Social Security and Medicare since 2009, said there was a “near certainty” that the federal government would not provide the full level of Medicaid funding now scheduled under law.

Blahous  also stated that “to return the federal budget to sustainable historical norms in the absence of any cuts in the growth of Medicaid and the new health exchanges would require all other non- interest spending to be cut by nearly one-quarter by 2037 relative to projected levels, and by roughly 15 percent relative to current levels in relation to GDP.”

And: “This is probably unrealistic.”

Despite the budget cuts due to the sequester, the federal government is STILL in severe financial stress.

So as to, the ultimate question posed in the beginning: “Does the Sequester Affect Medicaid?”

The answer: A resounding yes.

Summary: (Please note: The word “impact” should carry a pejorative connotation. When reading, feel free to add in “negatively” each time you read “impact.”)

The sequester impacts health care. Medicaid is health care.  The sequester impacts Medicaid.

The sequester impacts the health care exchange program. The federal government is in financial stress. The federal government will control NC’s health care exchange. NC’s health care exchange will be in financial stress.

Journalist Misstates the Facts on Medicaid Expansion

I randomly picked up Wednesday’s copy of “Indy” in a coffee shop.  The title caught my eye, “The Legislature’s Disgraceful Two Weeks.”  I  mean, Wow. That’s quite a title! So, of course, I had to pick it up.

I turned to page 7 and read the “Block Obamacare” paragraph and almost choked when I read the paragraph.  The statements written were patently untrue. Forgive my naivety, but isn’t there some sort of oath for journalists to at least attempt to state the truth?

I felt obligated to explain how the Indy failed to publish the correct facts.

First sentence: “The Affordable Health Care Act would extend Medicaid (government health insurance for poor people) to 500,000 North Carolinians who don’t currently qualify – at essentially no cost to the State.”

No cost to the State??? Seriously? Where did these facts come from??? Reality: According to an economic study in the New York Times, should North Carolina expand Medicaid, between 2014-2019, North Carolina would have to contribute approximately $1.029 Billion. Yes, Billion!!!  If you think $1.029 billion is “essentially no cost,” please send me a check for a few million. Make it out to my name please.

Second sentence: “Nonetheless, Senate and House Republicans have said they don’t want the money.”

What? They don’t want the money? The sentence makes it sounds like the federal government is passing around a basket full of money and asking the states to take what they want. Not only is this sentence incorrect, it is misleading.  There is no free basket full of money  for everyone.  And no one in the General Assembly (I feel confident this is correct, although it has not been corroborated) is refusing free money.

The choice to not expand Medicaid is predicated on a plethora of reasons. One reason off the top of my head, is that, according to the recent audit conducted on DMA, yearly, DMA spent approximately $648.8 million on administration costs.  Proponents of Medicaid expansion have said that Medicaid expansion would create jobs. Guess where? DMA. Let’s ADD to the administration costs instead of reeling them in….Really???? This is similar to the mentality I had as a teenager: I know I’m doing something wrong, but unless my parents find out, so what?

Third sentence: “The bill to block the expansion is en route to the House with the backing of Gov. Pat McCrory.”

Ok, that was the only sentence somewhat true with one large difference. In reality, Gov. McCrory has been extremely hesitant to rush the decision of whether to expand Medicaid. He urged lawmakers not to rush.

So after reading the paragraph preceding the article, I was terrified to actually read the article.  But much like a train wreck happening in front of you, I couldn’t resist.

My favorite line: “It’s long been apparent that Republicans should have no credibility on the question of fiscal prudence.”

Once I read that sentence, I laughed out loud. Obviously, this journalist suffers from extreme parochial vision and has made the topic a “Republicans v. Democrats” debate. People, who cares what political side you are on? Medicaid recipients deserve quality care and enough health care providers to care for the entire Medicaid population (currently around 1.5 million in North Carolina).  Right now, in North Carolina, Medicaid recipients cannot find physicians, psychologists, dentists, or specialty physicians willing to accept Medicaid patients.

Fix that!!

Enable the 1.5 million North Carolinians, to whom we owe a duty to provide health care, to receive quality health care.  Personally, if I were on the cusp of receiving Medicaid, and I knew that, through  Medicaid expansion, I could get the Medicaid card, but not find a doctor willing to accept me (or if I found one to accept me that I wouldn’t get all the tests or procedures that someone with private insurance would undergo), I would choose to say, “No, to unequal health care.”