New case law supports due process for Medicare providers. As first seen on RACMonitor.
Due process is one of the cornerstones of our society. Due process is the universal guarantee and found in the Fifth Amendment to the United States Constitution, which provides “No person shall…be deprived of life, liberty, or property, without due process of law,” and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.
For Medicare and Medicaid providers, however, due process, in the past, has been nonexistent. Imagine that you are accused of owing $5 million to the government. Perhaps it was a CPT® code error. You disagree. You believe that your documentation was proper and that you filed for reimbursement correctly. You appeal the decision that you owe $5 million. You continue conducting business as normal. Suddenly, you realize the government is recouping the $5 million now. Prior to any hearing before a judge. You haven’t been found guilty. What happened to innocent until proven guilty? What happened to due process?
For Medicare appeals there is a five-step appeal process. The law requires the government not to recoup during the first and second levels of appeal. But the first and second levels are jumping through hoops and are not normally successful. It is at the third level – the appeal to an impartial administrative judge – that the alleged recoupments are overturned.
After the second level, according to the black letter of the law, the government can begin recouping the alleged overpayment.
Sadly, in the past, the courts have held that it is proper for the government to recoup reimbursements after the second level. Even though, no hearing has been held before an impartial judge and you haven’t been found guilty of owing the money.
On Sept. 27, 2018, another U.S. District Court in South Carolina has agreed with courts in Texas by granting a provider’s request for a Temporary Restraining Order (TRO) to prevent the Centers for Medicare and Medicaid Services (CMS) from recouping monies until after Administrative Law Judge (ALJ) hearings have been held (Accident, Injury and Rehabilitation, PC, c/a No. 4:18-cv-02173, September 27, 2018).
A new trend in favor of providers seems to be arising. This is fantastic news for providers across the country!
Accident, Injury & Rehab, PC found that the ALJ stage of the appellate process is the most important for providers, as it provides the first opportunity for plaintiff to cross examine defendant’s witnesses and examine the evidence used to formulate the statistical sample. According to the American Hospital Association (AHA), 66 percent of Recovery Audit Contractor (RAC) denials are reversed by an ALJ (I actually believe the percentage is higher). The court found that plaintiff’s procedural due process rights were violated by premature recoupment. The court granted Accident, Injury & Rehab, PC’s preliminary injunction restraining and enjoining the government from withholding Medicare payments during the appeal process.
When the government starts recouping filing a preliminary injunction has been shown it to be the best course.
In the past, most preliminary injunctions asking the court to order the government to stop recoupments until a hearing was held was dismissed based on jurisdiction. In other words, the courts held that the courts did not have the authority to render an opinion as to recoupments prior to a hearing. Now, however, the trend is turning, and courts are starting to rule in favor of the provider, finding a violation of procedural due process based on a collateral claim exception.
There are four criteria in order to win a preliminary injunction. A party seeking a preliminary injunction must establish all for the following criteria: (1) that the party is likely to succeed on the merits; (2) that the party is likely to suffer irreparable harm in the absence of preliminary injunction; (3) that the balance of the equity tips in the party’s favor; and (4) that injunction is in the public interest.
There is an esoteric legal theory called exhaustion of administrative remedies. So jurisdiction is the question. There are exceptions to the judicial bar. The Supreme Court of United States articulated a collateral claim exception. The Supreme Court permitted a plaintiff to bring a procedural due process claim requesting an evidentiary area hearing before the termination of disability benefits. There are nonwaivable and waivable jurisdictional elements the nonwaivable requirement is that a claim must be presented to the administrative agency. The waivable requirement is that administrative remedies be exhausted.
The Collateral claim exception is when a party brings a claim in federal court when that “constitutional challenge is entirely collateral to its substantive claim of entitlement.”
The new trend in case law is that the courts are finding that the provider’s right to not undergo recoupment during the appeal process is a collateral issue as to the substantive issue of whether the provider owes the money. Therefore, the courts have found jurisdiction as to the collateral issue.
The proverbial ship has sailed. According to courts in Texas and now South Carolina, CMS cannot recoup monies prior to hearings before ALJs. Providers facing large recoupments should file TROs to prevent premature recoupments and to obtain due process.
When action happens in the Medicare/caid world, it happens quickly. Sometimes you do not receive adequate notice to coordinate continuity of care for your consumers or patients. For example, on August 3, 2018, the Center for Medicare and Medicaid Services announced that at midnight on August 18, 2018, it would be terminating the contract between CMS and ESEC, LLC, an Oklahoma-based surgery center.
CMS provided ESEC 15 days notice of complete termination of Medicare and Medicaid reimbursements. Now I do not know the details of ESEC’s financial reliance on Medicare or Medicaid, but, these days, few providers are solely third-party pay or cash-only. I can only assume that ESEC is scrambling to initiate a lawsuit to remain afloat and open for business. Or ESEC is praying for a “rescind” by correcting whatever issues it purportedly had. Personally, I would not count on a possible rescind. I would be proactively seeking legal intervention.
Here are some examples of recent terminations and the notice received by the providers:
- Baylor St. Luke’s Medical Center’s heart transplant program lost federal funding August 17, 2018. The hospital will no longer be able to bill Medicare and Medicaid for heart transplants.
- Effective August 9, 2018, Brookwood Baptist Medical Center’s Medicare contract was terminated. The notice was published July 25, 2018.
- As of August 12, 2018, The Grandview Nursing & Rehabilitation Facility’s Medicare contract was terminated. Notice of the termination was published August 1, 2018.
- As of September 1, 2018, Compassus-Kansas City, a hospice company, will lose its Medicare contract. Notice was provided August 17, 2018.
- On August 3, 2018, CMS announced that it was terminating Deligent Health Services Inc.’s Medicare and Medicaid contact, effective December 5, 2017. (That is quite a retroactive timeframe).
Can Careless Judy put a healthcare provider out of business?
This happens all the time. Sure, ESEC probably had knowledge that CMS was investigating it. However, CMS has the authority to issue these public notices of termination without holding a hearing to determine whether CMS’ actions are accurate. What if Careless Judy in Program Integrity made a human error and ESEC actually does meet the standards of care. But you see, Careless Judy accidentally used the minimum standards of care from 2008 instead of 2018. It’s an honest mistake. She had no malice against ESEC. But, my point is – where is the mechanism that prevents a surgical ambulatory center from going out of business – just because Careless Judy made a mistake?
To look into whether any legal mechanism exists to prevent Careless Judy from putting the ambulatory center out of business, I turn to the legal rules.
42 CFR 488.456 governs terminations of provider agreements. Subsection (a) state that termination “ends – (1) Payment to the facility; and (2) Any alternative remedy.”
Subsection (b) states that CMS or the State may terminate the contract with the provider if the provider “Is not in substantial compliance with the requirements of participation, regardless whether immediate jeopardy is present.” On the bright side, if no immediate jeopardy exists then CMS or the State must give 15 days notice. If there is found to be immediate jeopardy, the provider get 2 days. But who determines what is “substantial compliance?” Careless Judy?
42 CFR 489.53 lists the reasons on which CMS may rely to terminate a provider. Although, please note, that the regulations use the word “may” and not “must.” So we have some additional guidance as to when a provider’s contract may be terminated, but it still seems subjective. Here are the reasons:
- The provider is not complying with the provisions of title XVIII and the applicable regulations of this chapter or with the provisions of the agreement.
- The provider or supplier places restrictions on the persons it will accept for treatment and it fails either to exempt Medicare beneficiaries from those restrictions or to apply them to Medicare beneficiaries the same as to all other persons seeking care.
- It no longer meets the appropriate conditions of participation or requirements (for SNFs and NFs) set forth elsewhere in this chapter. In the case of an RNHCI no longer meets the conditions for coverage, conditions of participation and requirements set forth elsewhere in this chapter.
- It fails to furnish information that CMS finds necessary for a determination as to whether payments are or were due under Medicare and the amounts due.
- It refuses to permit examination of its fiscal or other records by, or on behalf of CMS, as necessary for verification of information furnished as a basis for payment under Medicare.
- It failed to furnish information on business transactions as required in § 420.205 of this chapter.
- It failed at the time the agreement was entered into or renewed to disclose information on convicted individuals as required in § 420.204 of this chapter.
- It failed to furnish ownership information as required in § 420.206 of this chapter.
- It failed to comply with civil rights requirements set forth in 45 CFR parts 80, 84, and 90.
- In the case of a hospital or a critical access hospital as defined in section 1861(mm)(1) of the Act that has reason to believe it may have received an individual transferred by another hospital in violation of § 489.24(d), the hospital failed to report the incident to CMS or the State survey agency.
- In the case of a hospital requested to furnish inpatient services to CHAMPUS or CHAMPVA beneficiaries or to veterans, it failed to comply with § 489.25 or § 489.26, respectively.
- It failed to furnish the notice of discharge rights as required by § 489.27.
- The provider or supplier refuses to permit copying of any records or other information by, or on behalf of, CMS, as necessary to determine or verify compliance with participation requirements.
- The hospital knowingly and willfully fails to accept, on a repeated basis, an amount that approximates the Medicare rate established under the inpatient hospital prospective payment system, minus any enrollee deductibles or copayments, as payment in full from a fee-for-service FEHB plan for inpatient hospital services provided to a retired Federal enrollee of a fee-for-service FEHB plan, age 65 or older, who does not have Medicare Part A benefits.
- It had its enrollment in the Medicare program revoked in accordance to § 424.535 of this chapter.
- It has failed to pay a revisit user fee when and if assessed.
- In the case of an HHA, it failed to correct any deficiencies within the required time frame.
- The provider or supplier fails to grant immediate access upon a reasonable request to a state survey agency or other authorized entity for the purpose of determining, in accordance with § 488.3, whether the provider or supplier meets the applicable requirements, conditions of participation, conditions for coverage, or conditions for certification.
As you can see from the above list of possible termination reasons, many of which are subjective, it could be easy for Careless Judy to terminate a Medicare contract erroneously, based on inaccurate facts, or without proper investigation.
The same is true for Medicaid; your contract can be terminated on the federal or state level. The difference is that at the state level, Careless Judy is a state employee, not a federal.
42 CFR 498.5 governs appeal rights for providers contract terminations. Subsection (b) states that “Any provider dissatisfied with an initial determination to terminate its provider agreement is entitled to a hearing before an ALJ.”
42 CFR 498.20 states that an initial determination by CMS (like a contract termination) is binding unless it is reconsidered per 42 CFR 498.24.
A Stay of the termination should suspend the termination until the provider can obtain a hearing by an impartial tribunal until the appeal has been completed. The appeal process and supposed automatic Stay of the termination is the only protection for the provider from Careless Judy. Or filing an expensive injunction.
5th Circuit Finds Subject Matter Jurisdiction For Medicare and Medicaid Providers – Why Collards Matter
“I’d like some spaghetti, please, and a side of meatballs.” – This sentence is illogical because meatballs are integral to spaghetti and meatballs. If you order spaghetti – and -meatballs, you are ordering “spaghetti and meatballs.” Meatballs on the side is not a thing.
Juxtapose, a healthcare provider defending itself from an alleged overpayment, But during the appeal process undergoes a different penalty – the state or federal government begins to recoup future funds prior to a decision that the alleged recoupment is authorized, legal, or warranted. When a completely new issue unrelated to the allegation of overpayment inserts itself into the mix, then you have spaghetti and meatballs with a side of collard greens. Collard greens need to be appealed in a completely different manner than spaghetti and meatballs, especially when the collard greens could put the company out of business because of the premature and unwarranted recoupments without due process.
I have been arguing this for years based off of, not only, a 1976 Supreme Court case, but multiple state case law, as well as, success I have had in the federal and administrative courts, and BTW – logic.
On March 27, 2018, I was confirmed again. The Fifth Circuit Court of Appeals decided a landmark case for Medicare and Medicaid providers across the country. The case, Family Rehab., Inc. v Azar, 2018 U.S. App. LEXIS 7668, involved a Medicare home health service provider, which was assessed for approximately $7.8 million in Medicare overpayments. Family Rehab, the plaintiff in the case, relied on 88% to 94% of its revenue from Medicare. The company had timely appealed the alleged overpayment, and it was at the third level of the Medicare five step process for appeals. See blog. But there is a 3 – 5 year backlog on the third level, and the government began to recoup the $7.8 million despite the ongoing appeal. If no action were taken, the company would be out of business well-before any ALJ could rule on the merits of the case, i.e. whether the recoupment was warranted. How is that fair? The provider may not owe $7.8 million, but before an objective tribunal decides what is actually owed, if anything, we are going to go ahead and take the money and reap the benefit of any interest accrued during the time it takes the provider to get a hearing.
The backlog for Medicare appeals at the ALJ level is unacceptably long. See blog and blog. However, the federal regulations only prevent recoupment during the appeal process during the first and second levels. This is absolutely asinine and should be changed considering we do have a clause in the Constitution called “due process.” Purported criminals receive due process, but healthcare providers who accept Medicare or Medicaid, at times, do not.
At the third level of appeal, Family Rehab underwent recoupments, even though it was still appealing the decision, which immediately stifled Family Rehab’s income. Family Rehab, because of the premature recoupments, was at risk of losing everything, going bankrupt, firing its staff, and no longer providing medically necessary home health services for the elderly. This situation mimics a situation in which I represented a client in northern Indiana who was losing its Medicaid contract. I also successfully obtained a preliminary injunction preventing the provider from losing its Medicaid contract. See blog.
It is important to note that in this case the ZPIC had audited only 43 claims. Then it used a statistical method to extrapolate the alleged over-billings and concluded that the alleged overpayment was $7,885,803.23. I cannot tell you how many times I have disputed an extrapolation and won. See blog.
42 USC 1395(f)(f)(d)(1)(A) states that the ALJ shall conduct and conclude the hearing and render a decision no later than 90 days after a timely request. Yet the Fifth Circuit Court of Appeals found that an ALJ hearing would not be forthcoming not within 90 days or even 900 days. The judge noted in his decision that the Medicare appeal backlog for an ALJ hearing was 3 – 5 years. The District Court held that it lacked subject matter jurisdiction because Family Rehab had not exhausted its administrative remedies. Family Rehab appealed.
On appeal, Family Rehab argued the same arguments that I have made in the past: (1) its procedural due process and ultra vires claims are collateral to the agency’s appellate process; and (2) going through the appellate process would mean no review at all because the provider would be out of business by the time it would be heard by an ALJ.
What does collateral mean? Collard greens are collateral. When you think collateral; think collards. Collard greens do not normally come with spaghetti and meatballs. A collateral issue is an issue that is entirely collateral to a substantive agency decision and would not be decided through the administrative appeal process. In other words, even if Family Rehab were to only pursue the $7.8 million overpayment issue through the administrative process, the issue of having money recouped and the damage to the company that the recoupment was causing would never be heard by the ALJ because those “collateral” issues are outside the ALJ’s purview. The premature recoupment issue could not be remedied by an ALJ. The Fifth Circuit Court of Appeals agreed.
The collateral argument also applies to terminations of Medicare and Medicaid contracts without due process. In an analogous case (Affiliated Professional), the provider argued that the termination of its Medicare contract without due process violated its right to due process and the Equal Protection Clause and was successful.
The upshot is obvious, if the Court must examine the merits of the underlying dispute, delve into the statute and regulations, or make independent judgments as to plaintiff’s eligibility under a statute, the claim is not collateral.
The importance of this case is that it verifies my contention that if a provider is undergoing a recoupment or termination without due process, there is relief for that provider – an injunction stopping the premature recoupments or termination until due process has been completed.
What if you had to appeal traffic citations through the police officer who pulled you over before you could defend yourself before an impartial judge? That would be silly and a waste of time. I could not fathom a time in which the officer would overturn his/her own decision.
“No, officer, I know you claim that I was speeding, but the speed limit on Hwy 1 had just increased to 65. You were wrong when you said the speed limit was 55.”
“Good catch, citizen. You’re right; I’m wrong. Let’s just rip up this speeding ticket.”
Not going to happen.
The same is true when it comes to decisions by the Department of Health and Human Service (DHHS) to sanction or penalize a Medicaid provider based on alleged provider abuse (otherwise known as documentation errors). If DHHS determines that you owe $800,000 because your service notes are noncompliant, I am willing to bet that, upon its own reconsideration, the decision will be upheld. Asking for reconsideration review from the very same entity that decided the sanction or penalty is akin to doing something over and over and expecting different results (definition of insanity?).
But – are informal reconsideration reviews required by law to fight an adverse decision before you may appear before an administrative law judge?
The reason that you should care whether the reconsideration reviews are required by law is because the process is time consuming, and, often, the adverse determination is in effect during the process. If you hire an attorney, it is an expensive process, but one that you will not (likely) win. Generally, I am adverse to spending time and money on something that will yield nothing.
Before delving into whether reconsideration reviews are required by law, here is my caveat: This issue has not been decided by our courts. In fact, our administrative court has rendered conflicting decisions. I believe that my interpretation of the laws is correct (obviously), but until the issue is resolved legally, cover your donkey (CYA), listen to your attorney, and act conservatively.
Different laws relate to whether the adverse decision is rendered by the DHHS or whether the adverse decision is rendered by a managed care organization (MCO). Thus, I will divide this blog into two sections: (1) reconsiderations to DHHS; and (2) reconsiderations to an MCO.
Appealing DHHS Adverse Determinations
When you receive an adverse decision from DHHS, you will know that it is from DHHS because it will be on DHHS letterhead (master of the obvious).
10A NCAC 22F .0402 states that “(a) Upon notification of a tentative decision the provider will be offered, in writing, by certified mail, the opportunity for a reconsideration of the tentative decision and the reasons therefor. (b) The provider will be instructed to submit to the Division in writing his request for a Reconsideration Review within fifteen working days from the date of receipt of the notice. Failure to request a Reconsideration Review in the specified time shall result in the implementation of the tentative decision as the Division’s final decision.”
As seen above, our administrative code recommends that a Medicaid provider undergo the informal reconsideration review process through DHHS to defend a sanction or penalty before presenting before an impartial judge at the Office of Administrative Hearings (OAH). I will tell you, having gone through hundreds upon hundreds of reconsideration reviews, DHHS does not overturn itself. The Hearing Officers know who pay their salaries (DHHS). The reconsideration review ends up being a waste of time and money for the provider, who must jump through the “reconsideration review hoop” prior to filing a petition for contested case.
Historically, attorneys recommend that provider undergo the reconsideration review for fear that an Administrative Law Judge (ALJ) at OAH would dismiss the case based on failure to exhaust administrative remedies. But upon a plain reading of 10A NCAC 22F .0402, is it really required? Look at the language again. “Will be offered” and “the opportunity for.” And what is the penalty for not requesting a reconsideration review? That the tentative decision becomes final – so you can petition to OAH the final decision.
My interpretation of 10A NCAC 22F .0402 is that the informal reconsideration review is an option, not a requirement.
Now, N.C. Gen. Stat. 150B-22 states that “[i]t is the policy of this State that any dispute between an agency and another person that involves the person’s rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informal procedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined. If the agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person may commence an administrative proceeding to determine the person’s rights, duties, or privileges, at which time the dispute becomes a “contested case.””
It is clear that our State’s policy is that a person who has a grievance against an agency; i.e., DHHS, attempts informal resolution prior to filing an appeal at OAH. Notice that N.C. Gen. Stat. 150B-22 is applicable to any dispute between “an agency and another person.” “Agency” is defined as “an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor’s Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit of government is not an agency.”
Clearly, DHHS is an “agency,” as defined. But an MCO is not a department; or a board; or a commission; or a division; or a unit of government in the executive branch; or a council. Since the policy of exhausting administrative remedies applies to DHHS, are you required to undergo an MCO’s reconsideration review process?
Appealing an MCO Adverse Determination
When you receive an adverse decision from an MCO, you will know that it is from an MCO because it will be on the MCO’s letterhead (master of the obvious).
There is a reason that I am emphasizing the letterhead. It is because DHHS contracts with a number of vendors. For example, DHHS contracts with Public Consulting Group (PCG), The Carolina Center for Medical Excellence (CCME), HMS, Liberty, etc. You could get a letter from any one of DHHS’ contracted entities – a letter on their letterhead. For example, you could receive a Tentative Notice of Overpayment on PCG letterhead. In that case, PCG is acting on behalf of DHHS. So the informal reconsideration rules would be the same. For MCOs, on the other hand, we obtained a Waiver from the Center for Medicare and Medicaid Services (CMS) to “waive” certain rules and to create the MCOs. Different regulations apply to MCOs than DHHS. In fact, there is an argument that N.C. Gen. Stat. 150B-22 does not apply to the MCOs because the MCOs are not an “agency.” Confusing, right? I call that job security.
Are you required to undergo the MCO’s internal reconsideration review process prior to filing a petition for contested case at OAH?
Your contract with the MCO certainly states that you must appeal through the MCO’s internal process. The MCO contracts with providers have language in them like this:
Dispute Resolution and Appeals: “The CONTRACTOR may file a complaint and/or appeals as outlined in the LME/PIHP Provider Manual promulgated by LME/PIHP pursuant to N.C. Gen. Stat. 122C-151.3 and as provided by N.C. Gen. Stat. Chapter 108C.”
I find numerous, fatal flaws in the above section. Whoever drafted this section of the contract evidently had never read N.C. Gen. Stat. 122C-151.3, which plainly states in subsection (b) “This section does not apply to LME/MCOs.” Also, the LME/PIHP does not have the legal authority to promulgate – that is a rule-making procedure for State agencies, such as DHHS. The third fatal flaw in the above section is that the LME/MCO Provider Manual is not promulgated and certainly was not promulgated not pursuant to N.C. Gen. Stat. 122C-151.3, does not apply to LME/MCOs.
Just because it is written, does not make it right.
If N.C. Gen. Stat. 150B-22 does not apply to MCOs, because MCOs are not an agency, then the State policy of attempting to resolve disputes through informal methods before going to OAH does not apply.
There is no other statute or rule that requires a provider to exhaust an MCO’s internal review process prior to filing a petition for contested case.
What does that mean IN ENGLISH??
What it means is that the MCOs contract and provider manual that create an informal one or two-step reconsideration process is not required by law or rule. You do not have to waste your time and money arguing to the MCO that it should overturn its own decision, even though the reconsideration review process may be outlined in the provider manual or your procurement contract.
OAH has agreed…and disagreed.
In Person-Centered Partnerships, Inc. v. NC DHHS and MeckLINK, No. 13 DHR 18655, the court found that “[n]either the contractual provisions in Article II, Section 5.b of the Medicaid Contract nor MeckLINK’s “Procedures for implementation of policy # P0-09 Local Reconsideration Policy” states that reconsideration review is mandatory and a prerequisite to filing a contested case.”
In another case, OAH has held that, “[c]ontract provisions cannot override or negate the protections provided under North Carolina law, specifically the appeal rights set forth in N.C. Gen. Stat. Chapter 108C. Giesel, Corbin on Contracts § 88.7, at 595 (2011) (When the law confers upon an individual a right, privilege, or defense, the assumption is that the right, privilege or defense is conferred because it is in the public interest. Thus, in many cases, it is contrary to the public interest to permit the holder of the right, privilege, or defense to waive or to bargain it away. In these situations, the attempted waiver or bargain is unenforceable.”)” Essential Supportive Services, LLC v. DHHS and its Agent Alliance Behavioral Healthcare, No. 13 DHR 20386 (NCOAH) (quoting Yelverton’s Enrichment Services, Inc., v. PBH, as legally authorized contractor of and agent for N.C. Department of Health and Human Services, 13-CVS-11337, (7 March 2014)).
However, most recently, OAH ruled in the opposite way. A provider was terminated from an MCO’s catchment area, and we immediately filed a preliminary injunction to cease the termination. As you can see from the above-mentioned cases, OAH had not considered the reconsideration review mandatory. But, this time, the Judge found that the “contractual provision in [the MCO’s] contract with Petitioner, which provides for a local reconsideration review, is a valid and binding provision within the contract.”
So, again, the law is as clear as two and two adding up to five.
For now, when you are disputing an adverse determination by an MCO requesting a reconsideration review before going to OAH is a good CYA.
Going back to the traffic example at the beginning of the blog, my husband was pulled for speeding a few weeks ago. I was surprised because, generally, he does not speed. He is a usually conscientious and careful driver. When the officer came to his window, he was genuinely confused as to the reason for the stop. In his mind, he was driving 73 mph, only 3 miles over the speed limit. In fact, he had the car on cruise control. Turns out he confused the sign for HWY 70, as a speed limit sign. The speed limit was actually 55 mph.
We did not appeal the decision.
Hospital is shocked to learn that its Medicare contract with Health and Human Services may be terminated by April 16, 2017. Medicaid services may also be adversely affected. The hospital was notified of the possible Medicare contract termination on March 27, 2017, and is faced with conceivably losing its Medicare contract within a month of notification. Legal action cannot act fast enough – unless the hospital requests an emergency temporary restraining order, motion to stay, and preliminary injunction and files it immediately upon learning that its Medicare contract is terminated.
The Center for Medicare and Medicaid Services (CMS) threatened Greenville Memorial Hospital, part of Greenville Health System, in South Carolina, that Medicare reimbursements will cease starting April 16, 2017. According to CMS, Memorial’s emergency department is not compliant with Medicare regulations.
A public notice in the Greenville News says: “Notice is hereby given that effective April 15, 2017, the agreement between GHS Greenville Memorial Hospital, 701 Grove Road, Greenville, S.C. 29605 and the Secretary of Health and Human Service, as a provider of Hospital Services and Health Insurance for the Aged and Disabled Program (Medicare) is to be terminated. GHS Greenville Memorial Hospital does not meet the following conditions of participation. 42 CFR 482.12 Governing Body, 42 CFR 482.13 Patients’ Rights and 42 CFR 482.23 Nursing Services.”
“The Centers for Medicare and Medicaid Services has determined that GHS Greenville Memorial Hospital is not in compliance with the conditions of coverage. The Medicare program will not make payment for hospital services to patients who are admitted after April 16, 2017.”
The findings came after an onsite audit was conducted on March 13, 2017. Memorial was notified of the report on March 27, 2017.
Memorial must have submitted a corrective action plan by April 3, 2017, but it has not been released.
The emergency department at Memorial treats about 300 patients per day. An employee of Memorial estimates that the termination would lose net revenue from Medicare and Medicaid could potentially reach around $495 million. Greenville Memorial received $305 million in Medicare funding and $190 million from Medicaid in the most recent fiscal year, accounting for nearly six in 10 patients, officials said.
While CMS and Memorial refuse to discuss the details of the alleged noncompliance, CMS’ public notice cites three CFR cites: 42 CFR 482.12 Governing Body, 42 CFR 482.13 Patients’ Rights and 42 CFR 482.23 Nursing Services.
42 CFR 482.12 requires that hospitals have governing bodies and plans to follow Medicare regulations. Subsection (f) specifically requires that if a hospital has an emergency department that the hospital must follow 42 CFR 482.55 “Conditions of Participation,” which states that “The hospital must meet the emergency needs of patients in accordance with acceptable standards of practice.
(a) Standard: Organization and direction. If emergency services are provided at the hospital –
- The services must be organized under the direction of a qualified member of the medical staff;
- The services must be integrated with other departments of the hospital;
- The policies and procedures governing medical care provided in the emergency service or department are established by and are a continuing responsibility of the medical staff.
(b) Standard: Personnel.
- The emergency services must be supervised by a qualified member of the medical staff.
- There must be adequate medical and nursing personnel qualified in emergency care to meet the written emergency procedures and needs anticipated by the facility.”
The Memorial audit stemmed from a March 4, 2017, death of Donald Keith Smith, 48, who died as a result of traumatic asphyxiation. After an altercation, the patient was placed on a gurney, supposedly, face-down. South Carolina’s Department of Health and Environmental Controls Site Survey Agency investigated the hospital after the death and the audit found that hospital security officers improperly restrained Smith, strapping him face down to a gurney during an altercation, rendering him unable to breathe. The death was ruled a homicide.
Memorial terminated the security officers involved in the death.
Now the hospital is faced with its own potential death. The loss of Medicare and, perhaps, Medicaid reimbursements could financially kill the hospital. Let’s see what happens…
Don’t we have due process in America? Isn’t due process something that our founding fathers thought important, essential even? Due process is in our Constitution.
The Fourteenth (governing state governments) and the Fifth Amendment (governing federal government) state that no person shall be “deprived of life, liberty, or property without due process of law.”
Yet, apparently, if you accept Medicaid or Medicare, due process is thrown out the window. Bye, Felicia!
How is it possible that criminals (burglars, murderers, rapists) are afforded due process but a health care provider who accepts Medicaid/care does not?
Surely, that is not true! Let’s look at some examples.
In Tulsa, a 61-year-old man was arrested for killing his Lebanese neighbor. He pled not guilty. In news articles, the word “allegedly” is rampant. He allegedly killed his neighbor. Authorities believe that he may have killed his neighbor.
And prior to getting his liberty usurped and getting thrown in jail, a trial ensues. Because before we take a person’s liberty away, we want a fair trial. Doesn’t the same go for life and property?
Example A: I recently received a phone call from a health care provider in New Jersey. She ran a pediatric medical daycare. In 2012, it closed its doors when the State of New Jersey accused it of an overpayment of over $12 million and suspended its funds. With its funds suspended, it could no longer pay staff or render services to its clients.
Now, in 2016, MORE THAN FOUR YEARS LATER, she calls to ask advice on a closing statement for an administrative hearing. This tells me (from my amazing Murdoch Mysteries (my daughter’s favorite show) sense of intuition): (1) she was not provided a trial for FOUR YEARS; (2) the state has withheld her money, kept it, and gained interest on it for over FOUR YEARS; (3) in the beginning, she did have an attorney to file an injunction and a declaratory judgment; and (4) in the end, she could not afford such representation (she was filing her closing argument pro se).
Examples B-P: 15 New Mexico behavioral health care agencies. On June 23, 2013, the State of New Mexico accuses 15 behavioral health care agencies of Medicaid fraud, which comprised 87.5% of the behavioral health care in New Mexico. The state immediately suspends all reimbursements and puts most of the companies out of business. Now, MORE THAN THREE YEARS LATER, 11 of the agencies still have not undergone a “Fair Hearing.” Could you imagine the outrage if an alleged criminal were held in jail for THREE YEARS before a trial?
Example Q: Child psychiatrist in rural area is accused of Medicaid fraud. In reality, he is not guilty. The person he hired as his biller is guilty. But the state immediately suspends all reimbursements. This Example has a happy ending. Child psychiatrist hired us and we obtained an injunction, which lifted the suspension. He did not go out of business.
Example R: A man runs a company that provides non-emergency medical transportation (NEMT). One day, the government comes and seizes all his property and freezes all his bank accounts with no notice. They even seize his fiance’s wedding ring. More than TWO YEARS LATER – He has not stood trial. He has not been able to defend himself. He still has no assets. He cannot pay for a legal defense, much less groceries.
Apparently the right to speedy trial and due process only applies to alleged burglars, rapists, and murderers, not physicians and health care providers who render medically necessary services to our most fragile and vulnerable population. Due process??? Bye, Felicia!
What can you, as a health care provider, do if you are accused of fraud and your reimbursements are immediately suspended?
- Prepare. If you accept Medicare/caid, open an account and contribute to it generously. This is your CYA account. It is for your legal defense. And do not be stupid. If you accept Medicaid/care, it is not a matter of if; it is a matter of when.
- Have your attorney on speed dial. And I am not talking about your brother’s best friend from college who practices general trial law and defends DUIs. I am talking about a Medicaid/care litigation expert.
- File an injunction. Suspension of your reimbursements is a death sentence. The two prongs for an injunction are (a) likelihood of success on the merits; and (b) irreparable harm. Losing your company is irreparable harm. Likelihood of success on the merits is on you. If your documents are good – you are good.
I do not believe that I have been more excited to post a blog than I am right now. For the past two weeks, an associate DeeDee Murphy and I have been in trial in Albuquerque, New Mexico. For those of you who do not know about the Draconian, governmental upheaval of the 15 behavioral health care companies in New Mexico, see blog. And blog. And documentary.
Going back to what it is that I am so excited to share…
A federal preliminary injunction is rare. It is about as rare as rocking horse poo. But when I met Dr. B, I knew I had to try. Poo or not. Dr. B is a geneticist, who accepts Medicaid. Her services are essential to her patients, who receive ongoing, genetic counseling from her. 70% of her practice comprised of Medicaid recipients.
You see, when Dr. B came to me, she had been represented by legal counsel for over two years but had received no recourse at all. For two years she had retained counsel to fight for her Medicaid contract with the State of Indiana, and for two years, she had no Medicaid contract to render services. For the previous 2 years, Dr. B had been subject to prepayment review and paid nothing – or next to nothing…certainly not enough to pay expenses.
When I met Dr. B, she had not been paid for two years. She continued to render medically necessary services, but she received no reimbursement. She had exhausted all her loans, her credit limit, and even borrowed money from family. She had been forced to terminate staff. Dr. B was on the brink of financial and career ruin. She was about to lose the company and work that she had put over 40 years into. Since her company’s revenue consisted of over 70% Medicaid without Medicaid reimbursements, her company could not survive.
Yet, she continued to provide services to her patients. She is a saint. But she was about to be an unemployed, financially-ruined saint, whose sainthood could not continue.
On December 10, 2015, we filed a Motion for Preliminary Injunction in the Northern District of Indiana requesting that the Court enjoin the Indiana Medicaid agency (“FSSA”) from terminating Dr. B from the Medicaid program and from continuing to suspend the money owed to her for the past two year period that she had been subject to prepayment review.
Senior counsel, Josh Urquhart, from our Denver office, and I attended and argued on behalf of Dr. B in a 5-day trial from January 19-25, 2016.
On April 14, 2016, in a 63-page opinion, our preliminary injunction enjoining Indiana from terminating Dr. B from Medicaid was GRANTED. Dr. B is back in the Medicaid program!!!!!
The rocking horse poo is rampant!
This is not just a win for Dr. B. This is a win for all her Medicaid patients, as well. Two mothers with children-patients of Dr. B testified as to the fact that their children rely heavily on Dr. B. Both testified that without Dr. B their children would be irreparably harmed.
When Dr. B informed her former attorneys that she was hiring me, an attorney from North Carolina, those attorneys told Dr. B that “anyone who tells that they can get a federal preliminary injunction is blowing smoke up your ass.” [Pardon the cuss word – their words, not mine]. To which I would like to say, “[insert raspberry], here’s your smoke!”
A preliminary injunction is an extraordinary and drastic remedy, which is why it is rare. However, rare objects exist. The plaintiff must show the court that he/she has a reasonable likelihood of success on the merits, no adequate remedy at law, and irreparable harm absent the injunction. I felt that we had these criteria covered in Dr. B’s case.
The Court agreed with our contention that FSSA’s without cause termination violates her patients’ freedom to choose their provider. This is a big deal!
In our arguments to the Court, we relied heavily on Planned Parenthood of Indiana. We argued that Indiana’s without cause termination was merely a “business decision” and was not germane to Dr. B’s qualifications. As her qualifications remained intact, to disallow Dr. B from providing medically necessary services violates the patients’ freedom to choose their providers.
The Court held that FSSA “must rescind its without cause termination of Dr. B and reinstate her Medicaid provider agreement until this Court reaches a final decision.”
Even rocking horses poo every now and then.
Jon Camp, journalist for ABC11, interviewed me yesterday about a durable medical equipment client. In case you missed it, here is the link:
Judge Orders State’s Termination of Provider’s Medicaid Contract To Be REVERSED, Despite the Unilateral Termination!!
THE CASES LISTED BELOW ARE ILLUSTRATIVE OF THE MATTERS HANDLED BY THE FIRM. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. NOT ALL CASE RESULTS ARE PROVIDED. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.
[The names and services involved have been changed to protect the innocent. Lawyers have so many rules to follow…probably due to litigation].
Imagine that the State of North Carolina knocks on your office door and informs you that you are no longer allowed to accept Medicaid and/or Medicare reimbursement rates. That for whatever reason, you are no longer allowed to bill for Medicaid and/or Medicare services. You would expect a reason, right? You would expect the reason to be correct, right?
But what if the reason is invalid?
A North Carolina administrative judge recently held that the State’s reason for terminating a Medicaid provider’s contract must be accurate, and REVERSED the State’s decision to terminate its Medicaid contract with my client. Here’s the story:
The State terminated my client’s contract to provide chiropractic services.
In this case it was a bit of a duress contract (as are most Medicaid contracts) – a “take or leave it” offer to the local service provider. If you are a provider and want to continue to serve Medicaid recipients, you have no choice but to sign whatever contract the State gives you. You cannot negotiate. You’d be told to sign the contract “as is,” or you do not provide services. I know of a provider who, before he signed a contract with the State, crossed out a number of clauses. The State just sent him a clean, un-altered contract, same as the original, and told him sign it, no changes allowed.
Going back to my case…
My client is a provider that provides chiropractic services. In this case, the State inaccurately claimed that my client provided services without a proper license.
Upon the State’s termination of my client’s contract for chiropractic services, we filed a petition to the Office of Administrative Hearings in 2013 and asked the administrative law judge for a temporary restraining order, a motion to stay the termination, and a Preliminary Injunction to enjoin the State from terminating my client’s Medicaid provider contract.
The administrative law judge (ALJ) issued the temporary restraining order in May 2013. According to judge, we demonstrated a likelihood of success on the merits and that any failure to award the injunction would cause irreparable harm.
Obtaining an injunction, however, was not a complete victory. We had won an opening battle, but not the war.
A temporary injunction is exactly that…temporary. We had two additional hurdles to overcome: (1) a hearing at which we would have to prove to the judge that we were likely to succeed and the irreparable harm would be so irreparable that the judge should award us a longer injunction, at least until we could have a full hearing on the merits; and (2) a final hearing on the merits.
We received the Final Decision from the ALJ last week. The judge found that my client performed its contractual and legal obligations and that the State acted erroneously in determining that my client had breached its contract. The judge found the weight of the evidence sufficient to prove that my client provided services with a proper license.
If you think a 2 year injunction is pretty long, from May 2013 to now, you are right.
But think about this…from May 2013, through today and into the foreseeable future, as long as the contract is in effect, my client has been and will be able to provide medically necessary chiropractic services to those in need and receive reimbursements for those medically necessary services. This case shows why it is important for providers to assert their rights when those are violated.
And it shows also that the State is not allowed to arbitrarily violate those provider rights.
One way in which President Obama pushed the Affordable Care Act (ACA) through Congress was the promise that the ACA would, basically, fund itself by the increase in recoupments from providers for fraud, waste, and abuse…hence, the dramatic increase in audits and payments suspensions for both Medicare and Medicaid providers.
Herein lies the problem, by relying on you, who accept Medicare and Medicaid to fund, even a portion, of the ACA, we are de-incentivizing you, as a health care providers, to accept Medicare and Medicaid. Think about this logically, we are placing MORE people in a system (by expanding Medicaid), more people will rely on Medicare and Medicaid as their health insurance, but we are incentivizing FEWER providers to accept Medicaid and Medicare. It is as though we don’t care what happens to the people once we give them insurance. The goal of the ACA seems to be: get more people insured; instead of having the goal to allow everyone to get health care.
But I digress…
Section 6402(h) of the ACA requires suspension of Medicare and/or Medicaid payments when there is a credible allegation of fraud. Before the ACA, the suspension was not mandatory.
So, what constitutes a credible allegation of fraud?
Let me give you a real life example. One of my clients, we will call it Company Good Health, had its Medicare and Medicaid payments suspended based on an anonymous letter claiming Good Health commits Medicaid fraud and sent to the Division of Health and Human Services (DHHS) with no name of the author or return address. Therefore, DHHS had no way to contact the anonymous author to verify whether any sentence within the letter had an ounce of veracity. In fact, the author of the letter may very well have been an ex-girlfriend of the CEO or a bitter competitor for business. There is no way to know.
Yet, according to the ACA, an allegation of fraud is credible if it has an “indicia of reliability.” Look up “indicia.” I did. I found “from Latin plural of indicium (“a notice, information, discovery, sign, mark, token”).” I thought, that’s an unhelpful definition, so I looked up indicia in my legal dictionary, Black’s Law Dictionary. I found, in part, “[t]he term is much used in Civil Law in a sense nearly or entirely synonymous with Circumstantial Evidence. It denotes facts that give rise to inferences, rather than the inferences themselves.” Facts that give rise to inferences. Circumstantial evidence is evidence which may allow a judge or jury to deduce a certain fact from other facts which can be proven. In some cases, there can be some evidence that cannot be proven directly, such as with an eye-witness. (Think of the Scott Peterson trial).
Under the ACA, if there is a fact that gives rise to an inference of an allegation of fraud, the your Medicare and Medicaid reimbursements must be suspended. I underlined the words in the preceding sentence “inference,” “allegation,” and “must” to emphasize the slight and without any factual verification circumstance may be that causes suspension of payments. For many of you, this suspension is financially debilitating and will cause you to go out of business…or, at the very least, never accept Medicare or Medicaid again. Suspensions of payments do not only affect you, if affects your recipients as well.
An example of a mass suspension can be found in our nation’s capital. Recently, in D.C., the Medicaid agency suspended payments to 52% of the city’s home health agencies for personal care services (PCS). The companies hired an attorney and got a temporary restraining order (TRO) preventing the city from withholding funds, but lost at the preliminary injunction.
In an Order denying the preliminary injunction, the Judge stated that “in contrast to a provider’s right to participate in the Medicaid program, there is no constitutional right to receive Medicaid payments.” (To which I disagree, because there is a right to Medicaid payments for services rendered. National case law from multiple jurisdictions illustrates this, but maybe it was not argued before or accepted by this judge).
The Center for Medicare and Medicaid (CMS) has also suspended Medicare payments on a large-scale. CMS suspended Medicare payments to 78 Dallas area home health providers. Last year’s “Health Care Fraud and Abuse Control report” stated that 297 providers were under “active suspension” from Medicare and 105 more suspensions were approved.
Another example of a mass suspension is the behavioral health providers in New Mexico. In June 2013, the Health Services Division (HSD) suspended all reimbursements for 15 behavioral health care providers, all of whom accounted for 87% of New Mexico’s behavioral health care, based on credible allegations of fraud. Most accused providers went out of business.
While both Medicare and Medicaid require the suspension of reimbursements upon a credible allegation of fraud, you are slightly more protected. Medicare suspensions end after 18 months and can only be extended from 6 months in special circumstances.
There is no such protection for you when it comes to Medicaid; the states make the rules. There is a good cause exception that allows the state NOT to suspend payments, but, to date, I have yet to witness one good cause exception being recognized by the state. Instead, relief for the accused providers only comes from filing a lawsuit, most likely, an injunctive lawsuit. The downside of filing a lawsuit is that you have to pay attorney’s fees, which can be daunting, and you must find an attorney that specializes in Medicare and Medicaid. I have seen too many inexperienced, but well-intended, attorneys create bad law for providers due to self-imposed, legal stumbles.
The enigma within the language of the ACA, in this particular section, is the complete disregard for due process. See my blog on “How the ACA Has Redefined the Threshold for “Credible Allegations of Fraud” and Does It Violate Due Process?” By suspending Medicare and Medicaid reimbursements due to “indicia of reliability of an allegation of fraud,” the government is usurping your right to payment for services rendered without notice and an opportunity to be heard, which is one of the bedrocks of our Constitution.
So what are you to do if you are caught up in this web of mass suspensions based on “indicia of reliability of an allegation of fraud?”
Contact your Medicare and Medicaid litigation attorney! And do NOT forget to fill out the “good cause” exception…just in case…