In my experience with regulatory audits of health care providers, which is substantial, the auditors have zero incentive to perform audits conservatively…or even properly, if I am being completely honest. The audit companies themselves are for-profit entities with Boards of Directors, sometimes with shareholders, and definitely with executives who are concerned with the corporate bottom lines. The actual auditors are salaried employees (or contractors) who are given an audit checklist, which may or may not be correct) and instructions as to which companies to audit.
Think about it – you are hired as an auditor…what happens if you come back to your boss, saying, “Nope. I found no documentation errors.”I liken it to me hiring a housekeeper and that housekeeper showing up at my house and saying, “Your house is so clean. There is nothing for me to clean.” First of all, for those who know me, you know that no housekeeper would ever say that my house did not to be cleaned, but that is neither here nor there. The analogy remains. No employee or hired contractor will tell you that you do not need to hire him or her because he or she is not needed. It is only human nature and logic. Will a dog trainer tell you that your dog is fully trained? Will a personal trainer tell you are perfectly fit? Will a rug maker tell you that you don’t need a rug? Will an auditor tell you that your documents are perfect? If so, they would render themselves obsolete.
Disagree with my opinions on this blog all you want, but if you disagree with the principle that an employee will not argue himself or herself out of a job, then you are living in a fantasy land made up of rainbows and gummy bears.
So let’s begin with the basic logical principles: 2+2=4 and auditors have incentives to find errors.
Now, knowing the basic, underlying fact that auditors have incentives to locate documentation errors, an article was recently published entitled, “Audit says home health care companies overbilled Mass. Medicaid by $23m.” While I am not in a position to critique a journalist’s writing, I disagree with the broad, overreaching statements found in this article. While the article claims that 9 home health companies owe the State of Massachusetts $23 million, my guess is that (if the companies hire a competent attorney) the companies do not owe such a large amount. In my experience, there are many legal defenses to safeguard against allegations in an audit.
The follow-up article may be entitled, “Audit of Home Health Agencies Found to Be Erroneous.”
Here is the first paragraph of that article claiming home care agencies overbilled Medicaid for $23 million:
“The state’s Medicaid program was routinely billed for home health care services that were never provided or were not medically necessary. Providers submitted documents with missing dates and signatures. Sometimes basic information like a patient’s medical history was nowhere to be found.”
First sentence: “The state’s Medicaid program was routinely billed for home health care services that were never provided or were not medically necessary.”
I call bull feces on this one. First, the audit, which is the topic of this article, only audited 9 home health agencies. Unless only 10 home health agencies exist in Massachusetts, an audit of 9 agencies can hardly be considered “routinely billing” Medicaid.
Second, who is making these determinations that the home health services are not medically necessary??? Considering that, in order to render home health services, the provider must obtain prior authorization that the services are medically necessary, I find it a hard pill to swallow that the rendered services are not medically necessary. These are prior authorized services!!
Third, providing home health services is anything but routine. Life happens. The assertion that home health care services were never provided fails to take into consideration – life. For example, a home health aide could present at the client’s home at the regularly scheduled time, but the consumer’s son is present. The son brought McDonald’s, in which case, the aide may render all services, but does not prepare a meal for the client. Or, perhaps, the consumer’s plan states that the aide must bathe the consumer. But the consumer recently had surgery and cannot take a bath or shower for a certain amount of time. In the above examples, services were not rendered, that is true, but did some sort of aberrant billing or fraud occur? I would argue, no.
Second sentence: “Providers submitted documents with missing dates and signatures.”
This sentence is also troubling. Let’s say that a consumer requires home health services and receives prior authorization. The home health aide renders the services. In the subsequent documentation, the home health aide forgets to date the service note. There is no question that the home health services were needed. There is no question that the services were rendered. There is only a missing date written on the service note. Does this circumstance warrant a 100% recoupment for a minor documentation error? If you answer, yes, you may have a fulfilling career as a Medicaid auditor in your future. You also may believe that a documentation error as egregious as a missing date should warrant tearing up the provider’s Medicaid contract and burning it. You may also hate puppy dogs and ice cream.
My answer is no. There are less drastic measures to be implemented other than a 100% recoupment – for example, a plan of correction could be required.
Third sentence: “Sometimes basic information like a patient’s medical history was nowhere to be found.”
I have major issues with this sentence. Ever hear of the saying, “You only get what you ask for?” All health care providers, including home health care providers, maintain massive amounts of documentation, whether it be electronic or paper. Furthermore, one client file could have years and years of documentation. When an auditor comes to an agency, the auditor normally presents with a list of consumer names and dates of service.
For example, the auditor wants to review the documentation for Barack Obama, date of service 11/8/12. The provider hands over the service note, the plan of care, the prior authorization, etc. Information not found on the documents provided to the auditor: place of birth, past drug use, including, marijuana and cocaine, smoking history, exercise regimen, marital status, immunizations, list of surgical procedures…you get the picture.
The article goes on to state, “Executives at all of the companies reached by the Globe said they are appealing the audit findings and chalked up most of the violations to minor paperwork issues that were overblown by state auditors.”
“There’s mistakes here, I understand that,” said Debra Walsh, administrator at Able Home Care. “[But] how did a missing address escalate to a sanction? That doesn’t make any sense.”
She’s right. It doesn’t make logical, reasonable, human sense. But it does make sense when you remember that the auditors are sent to the agencies with an audit checklist and a list of consumers with dates of service. If the checklist requires an address of the provider and the consumer to be present on the service note, regardless whether the regulations, rules or law require an address to be present on a service note, and there is no address present on the service note, then the auditor will find noncompliance. Strict adherence to the “Stepford Auditors’ Handbook” is required, not strict adherence to the law.
Looking at the sunny side – Most audit findings are easy-greasy to defend with legal arguments. Have you seen the TV show, “What Not To Wear?” The first, initial meeting of the targeted person on “What Not To Wear” is the original audit results “before a good legal defense.” It’s exaggerated, ugly, and quite shocking.
Then Stacy and Clinton come to the rescue and teach the scraggly, poorly-dressed individual fashion tips and the former frumpy individual is transformed into a fashionable chichi – or a much more palatable overpayment amount.
(In this analogy, my team and I are Stacy and Clinton. I will be Stacy).
One of my favorite examples of a “before” and “after” audit results is the following:
Before (frumpy individual):
Next time you see an article claiming that a health care provider overbilled the government for Medicare or Medicaid reimbursements, check and see whether the determination was appealed by the provider(s).
The appeal may demonstrate an entirely new perspective on such alleged overpayments than the original audit, because, remember, an auditor would not maintain a job if he or she found compliance.
Posted in "Single State Agency", Administrative Remedies, Agency, Alleged Overpayment, Appeal Rights, Associations, Federal Government, Health Care Providers and Services, Home Health Aide Services, Home Health Care Agencies, Home Health Services, Knicole Emanuel, Medicaid, Medicaid Attorney, Medicaid Providers, Medicaid Reimbursement, Medicaid Reimbursements, Medicaid Services, Medicare, Medicare and Medicaid Provider Audits, NC, NC DHHS, North Carolina, Provider Appeals of Adverse Decisions for Medicare and Medicaid, States
Tags: Defenses to Medicaid audit, Defenses to Medicaid Overpayment, Division of Medical Assistance, DMA, Health care, Health care provider, health care providers, Health Care Providers and Services, Home Care Agency, home health, Home health care, Home Health Services, Managed Care Organizations, Massachusetts Medicaid, Medicaid, Medicaid Audits, Medicaid Fraud, Medicaid Services, Medical Necessity, Medicare, Medicare Attorney, Medicare Audits, NC DHHS, North Carolina, Overpayment, Prior Authorization, Service Notes
We are living in the most polarized society in recent American history. A recent study shows that the feeling of political partisanship has more than doubled over the past 2 decades. So since 1995, politically, America has parted the Red Sea with voters increasingly ebbing away from the middle.
Even more interesting is that, according to the same 2014 study, political animosity is at an all-time, recent high. I say “recent” because I cannot fathom a more polarized society than the society in the 1850s-1860s leading up to the Civil War. So, when I say “recent,” I mean post-invention of the telephone.
According to the Pew Research Center, “[i]n each party, the share with a highly negative view of the opposing party has more than doubled since 1994. Most of these intense partisans believe the opposing party’s policies “are so misguided that they threaten the nation’s well-being.””
If BOTH parties express this identical sentiment, someone is wrong.
So, now, here, in this extremely polarized society, our NC General Assembly is tackling one of our most important and most divisive issues…Medicaid Reform.
But, you say, “Knicole, our General Assembly is an overwhelming Republican majority. Our Governor is Republican. How can this vast and deep political polarization prevent NC from creating a new, better, non-broken Medicaid system?”
In NC, even the Republicans are polarized, at least as to the issue of Medicaid reform. The two differing opinions as to Medicaid reform can be found in our separate houses: the Senate and the House of Representatives (House). As for our executive branch, Governor McCrory sides with the House.
The houses are divided by acronyms: ACOs (House) versus MCOs (Senate).
The House plan for Medicaid reform involves accountable care organizations (ACOs). The ACO plan includes physicians, hospitals and other health care providers collaborating to serve Medicaid recipients and assuming the monetary risks. For example, one ACO may be liable for 6000 Medicaid recipients. The ACO would be given X dollars per Medicaid recipient to cover the person’s overall health care. Say the ACO, via its health professionals, conducts a preventative breast exam on a woman and discovers a lump. The ACO would pay to remove the lump and, hopefully, the woman is ok. If the ACO fails to practice preventative medicine and the woman is diagnosed with breast cancer, then the ACO must finance the more expensive surgery and chemotherapy required. The ACO’s incentive would be to provide the best, proactive health care because, regardless, the ACO will be liable for that individual’s care. With ACOs, there is a financial incentive to keep people healthy and the profit is shared with the state.
The Senate plan for Medicaid reform involves managed care organizations (MCOs). Unlike ACOs, MCOs will not be comprised of health care providers. The MCOs will be large companies that will be charged with managing Medicaid by contracting with a network of providers. Many Medicaid services require prior authorization, which would be in the hands of the utilization review team employed by the MCO. Similar to the ACO, the MCO would be given an amount of money based on the number of Medicaid recipients within its network. The profit for the MCO is the money remaining at the end of the fiscal quarter that was not spent on services for Medicaid recipients.
What is better? Does better mean the most cost-savings? Does better mean the best quality of care for Medicaid recipients?
In order to determine whether the MCO-model or ACO-model is better and what exactly “better” means, you have to follow the money. For both models, you have to ask, “If the actual medical services provided cost double the anticipated amount, who bears the burden?” And, conversely, “If the actual medical services provided cost half the anticipated amount, who pockets the profit?”
There are numerous ways for an insurer to be paid. At one end of the spectrum, you have capitation; while at the other end of the spectrum you have a more typical financial relationship in which the insurer simply pays the health care provider its reasonable and usual amount.
Capitation is how we currently have our MCOs set up for behavioral health care in North Carolina. As we currently use capitation for our MCOs, I would assume that the Senate-model MCOs would also be capitated. Capitation places the risk on the MCO because the MCO receives a fixed amount regardless of actual cost. However, there is concern (or should be) that the MCOs will provide patients less care than needed in order to pocket a profit.
On the other hand, ACOs typically do not rely on full capitation. The ACOs may share the risk, and, therefore, the profit, with the state.
Another HUGE difference between ACOs and MCOs is that, with MCOs, the insurer in effect dictates what a health care provider is allowed to do. For example, say a dentist believes that a person is in need of dentures. Maybe 4-5 teeth have already fallen out and the remaining teeth are suffering more mild rot. The dentist requests prior authorization from the MCO to extract teeth, create a mold of the mouth, and order dentures to be custom-created. The MCO denies the requests saying, for example, not enough teeth have fallen out or not enough rot is present in the remaining teeth. The dentist’s hands are tied to the decision of the MCO, unless the patient can fork over the cost of care that the MCO refuses to authorize. And, BTW, the person who denied the request may have graduated from college with a BA in History . . . or in any event something else other than a field of medical or dental care
An ACO, on the other hand, is run by physicians, hospitals, and other health care providers. Theoretically, the decisions to authorize services would be made by those same people who swore the Hippocratic Oath.
With regard to healing the sick, I will devise and order for them the best diet, according to my judgment and means; and I will take care that they suffer no hurt or damage.
(I doubt a History major ever swore to heal the sick).
There has also been contemplation as to whether the General Assembly should remove the responsibility of managing Medicaid from the Department of Health and Human Services (DHHS) completely. Obviously, this suggestion is extreme and would require a Waiver from the federal government to transfer the “single state agency” requirement from DHHS to another entity.
Regardless of what decisions are made…whether the GA requires a private Medicaid panel to usurp Medicaid responsibilities from DHHS….whether NC adopts an MCO-model or an ACO-model for Medicaid reform….as it currently stands, our houses are divided. No bills pass a divided legislature.
The Senate and House both indicate that Medicaid reform is a forefront issue during this long session, but, so far, there has been no indication of a Great Compromise.
Posted in "Single State Agency", Access to Care, Accountability, Accountable Care Organizations, Budget, Decrease in Medicaid Spending, Denials of Medicaid Services, Dental Medicaid Providers, Division of Medical Assistance, Doctors, Federal Government, Freedom of Choice of Provider, General Assembly, Hospitals, Legislation, Managed Care, MCO, Medicaid, Medicaid Attorney, Medicaid Billing, Medicaid Budget, Medicaid Contracts, Medicaid Costs, Medicaid Providers, Medicaid Recipients, Medicaid Reform, Medicaid Reform Advisory Group, Medicaid Reimbursements, Medicaid Services, Medicaid Spending, Medicare Attorney, Mental Health, NC DHHS, North Carolina, Physicians, Primary Care Physicians, State Budget, Tax Dollars, Taxes, Taxpayers
Tags: Accountable Care Organizations, ACO, ACO v. MCO, Behavioral health, Capitation, CMS, Division of Medical Assistance, DMA, General Assembly, Health care provider, House, Legislation, Managed care, Managed Care Organizations, McCrory, MCO, Medicaid, Medicaid Attorney; Medicaid Lawyer; Medicare Attorney Medicare Lawyer, Medicaid Budget, Medicaid recipients, Medicaid Reform, Medicaid Services, Medicaid System, NC DHHS, North Carolina, North Carolina Department of Health and Human Services, Pat McCrory, Prior Authorization, Senate, Waiver
“Ring Around the Rosie.” What a fantastic children’s rhyme; it brings back nostalgic memories of my daughter being young. We would sing “Ring Around the Rosie,” while holding hands and running in a circle, and then fall as hard as possible (without hurting ourselves) onto the ground. We would just flop on the ground and my daughter loved it.
Although many people believe that the rhyme describes the time during the Great Plague in England in 1665, which is pretty morbid, it is still a fun children’s game.
But other than “Ring Around the Rosie,” it is no fun to run in circles until you get dizzy and fall to the ground. People usually just don’t spin around and around for fun.
Sometimes going through a Medicaid or Medicare audit can feel like you are running around and around in circles and getting ready to fall. So too, can you feel this way if you are undergoing a prepayment review with the Carolinas Center for Medical Excellence (CCME).
First, what is prepayment review?
N.C. Gen. Stat. 108C-7 allows for prepayment review. See also my blog, “NC Medicaid: CCME’s Comedy of Errors of Prepayment Review.” Or “CCME’s Prepayment Reviews Violate NCGS 108C-7!! Seriously!!“
Prepayment review means that a contracted entity, in this case CCME, reviews your claims BEFORE you get paid for services rendered. While on prepayment review, you do not receive Medicaid reimbursements. This can continue for 12 months or unless you reach 70% accuracy for three consecutive months.
70% doesn’t sound too hard, right? But, what if the auditing entity runs you in circles, gets you dizzy and makes you fall to the floor?
Here’s the story:
A client of mine owns a home health care company. She and her staff provide personal care services (PCS) to those who are eligible. For those who do not know what PCS is, it is basic caregiving services to help people with activities of daily living (ADLs), such as toileting, dressing, and eating.
My client, we will call her Provider Nancy, was undergoing a prepayment review that had been conducted by The Carolinas Center for Medical Excellence (CCME).
We won’t even talk about the fact that by the time Nancy came to me she had been on prepayment review for 17 months, but that the statute, NCGS 108C-7, only allows a provider to be on prepayment review for 12 months.
When she was undergoing prepayment review, CCME gave her low accuracy rates for a number of reasons, some of which were so absurd, you will laugh out loud.
For example, CCME denied claims because the service notes did not denote that the in-home aid put shoes on two of her clients. There were multiple dates of service (DOS) so these two clients contributed heavily to her low accuracy rating. I asked Nancy why the service note did not denote that her staff put shoes on her clients. She told me that these clients are double amputees. They do not have feet. So Nancy was dinged in her audit for not putting on shoes on someone without feet.
Nancy’s story also highlights the confusion at CCME about its own prior authorization records for PCS. CCME repeatedly demanded a copy of the authorization for Nancy to provide PCS. If a provider like Nancy did not have a prior authorization, she would never have received payment in the first place. Nonetheless, CCME told Nancy to that she had not documented the prior authorizations. Oddly enough, in order to produce the authorizations she had obtained, Nancy had to contact CCME, because at the time of her prepayment review audit, CCME was the entity that reviewed independent assessments to determine prior authorization. CCME was saying she had no prior authorization, but it was CCME who gave her the prior authorization!! How can a system operate like this, when an important reviewing entity does not know what is in its own records?
It got worse: Nancy would then ask CCME for CCME’s prior authorization letter, but CCME could not or would not give her a copy. Then CCME reps attended the hearing and stated that Nancy was dinged for not having a prior authorization. Can a system get any more backward??
Ring around the rosie…
Sometimes Nancy’s service notes showed that her in-home aids did extra chores for her clients. Maybe an in-home aide would help a client ambulate because the client had sore muscles that particular day, but, according to the plan of care (POC), the client did not need hands-on assistance to ambulate. CCME would ding Nancy for the service note not being in compliance with the POC. Nancy was getting dinged in the prepayment review for doing MORE GOOD for her clients than what was required. It was not as if Nancy’s in-home aides were foregoing aid to the ADLs on the POC. Oh, no! The in-home aid was going over and above the call of duty for a client. And Nancy would get dinged.
We all fall down!
Needless to say, Nancy did not meet the 70% for three consecutive months in order to be removed from prepayment review. But, remember, Nancy was not paid for 17 months; she came to me 17 months into the prepayment review. She was hurting financially.
Now, because of CCME’s confusing and inaccurate review, Nancy had little money and now had to hire a lawyer. Sure, we got her off prepayment review and got her paid, but she had to shell out thousands of dollars for attorneys’ fees.
If you have to undergo “Ring Around the Rosie” during a prepayment review, I think that the auditing entity, in this case CCME, should have to pay for attorneys’ fees. Give some sort of disincentive for the auditing companies to be sloppy. A penalty.
Now Liberty Mutual, not CCME, authorizes PCS.. But CCME continues to conduct prepayment reviews.
Ring around the rosie
Pocket full of posies
We all fall down!
Posted in Administrative Law Judge, Administrative Remedies, Carolinas Center for Medical Excellence, CCME, Division of Medical Assistance, Health Care Providers and Services, Home Health Aide Services, Home Health Services, In Home Care Services, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Medicaid, Medicaid Appeals, Medicaid Audits, Medicaid Billing, Medicaid Providers, Medicaid Reimbursements, Medicaid Services, Medicare and Medicaid Provider Audits, NC, NC DHHS, NCGS 108C-7, North Carolina, Office of Administrative Hearings, Personal Care Services, Petitions for Contested Cases, Plan of Care, Prepayment Review, Prior Authorization, Regulatory Audits, Service Notes
Tags: Audit, Carolinas Center for Medical Excellence, CCME, Division of Medical Assistance, Health care, Health care provider, In-Home aids, Medicaid, Medicaid Audits, Medicaid Reimbursments, Medicaid Services, NC DHHS, NCGS 108C-7, North Carolina, PCS, Personal Care Services, Plan of Care, Prepayment, Prepayment Review, Prior Authorization, Service Notes
How EPSDT Allows Medicaid Recipients Under the Age of 21 To Receive More Services Than Covered By NC State Plan
EPSDT. What in the heck is EPSDT?
EPSDT is an acronym for the “Early and Periodic Screening, Diagnosis, and Treatment (EPSDT).” It only applies to Medicaid beneficiaries under the age of 21. As in, if you are 21, EPSDT does not apply to you. The point of EPSDT is to allow beneficiaries under the age of 21 to receive medically necessary services not normally allowed by the NC Medicaid State Plan. (These beneficiaries under the age of 21 I will call “children” for the sake of this blog, despite 18+ being a legal adult).
The definition of each part of the acronym is below:
Early:……. Assessing and identifying problems early
Periodic:…… Checking children’s health at periodic, age-appropriate intervals
Screening:…. Providing physical, mental, developmental, dental, hearing, vision, and other screening tests to detect potential problems
Diagnostic:…. Performing diagnostic tests to follow-up when a risk is identified, and
Treatment:…. Control, correct or reduce health problems found.
Federal Medicaid law at 42 U.S.C.§ 1396d(r) [1905(r) of the Social Security Act] requires state Medicaid programs to provide EPSDT for beneficiaries under 21 years of age. Within the scope of EPSDT benefits under the federal Medicaid law, states are required to cover any service that is medically necessary “to correct or ameliorate a defect, physical or mental illness, or a condition identified by screening,” whether or not the service is covered under the North Carolina State Medicaid Plan.
The services covered under EPSDT are limited to those within the scope of the category of services listed in the federal law at 42 U.S.C. § 1396d (a) [1905(a) of the Social Security Act].
For example, EPSDT will not cover, nor is it required to cover, purely cosmetic or experimental treatments.
Again, EPSDT allows for exceptions to Medicaid policies for beneficiaries under the age of 21. For example, if the DMA clinical policy for dental procedures does not cover a certain procedure, if the dentist determines that the procedure is medically necessary for a beneficiary under the age of 21, then the dentist can request prior approval under EPSDT simply by filling out a “non-covered services form” along with the other supporting documentation to establish medical necessity. More likely than not, the “non-covered procedure” would be approved.
Medical necessity is an interesting term. Medical necessity is not defined by statute. The American Medical Association (AMA) defines medical necessity as:
“Health care services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, treating or rehabilitating an illness, injury, disease or its associated symptoms, impairments or functional limitations in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site and duration; and (3) not primarily for the convenience of the patient, physician, or other health care provider.”
But, legally, the courts have construed medical necessity broadly when it comes to EPSDT. As in, generally speaking, if a doctor will testify that a procedure or service is medically necessary, then, generally speaking, a judge will accept the medical necessity of the procedure or service.
It seems as though I am degrading the intelligence of the judges that take the face value testimony of the doctors. But I am not.
Judges, like I, are not doctors. We do not have the benefit of a medical education. I say benefit because any education is a benefit, in my opinion.
It would be difficult for anyone who is not a doctor to disagree with the testimony of a physician testifying to medical necessity. I mean, unless the person stayed in a Holiday Inn Express the night before. (I know…bad joke).
Some courts, however, have ruled that the decision as to whether a procedure is medically necessary must be a joint effort by the state and the treating physician. Obviously, for courts that follow the “joint decision for medical necessity” holdings, less procedures would be allowed under EPSDT because, more likely than not, the state will disagree with a treating physician (I say this only from my own experience representing the state when the state disagreed with EPSDT treatments despite the treating physician testifying that the procedure was medically necessary).
For example, the 11th Circuit has held that both the state and the treating physician have a role in determining whether a procedure or treatment is medically necessary to correct or ameliorate a medical condition. The 11th circuit disagreed with the Northern District of Georgia’s determination that the state MUST provide the amount of services which the treating physician dreamed necessary. Moore v. Medows, No. 08-13926, 2009 WL 1099133 (11th Cir. Apr. 24, 2009).
Regardless, in practice, EPSDT is interpreted broadly. A long, long time ago, I worked at the Attorneys’ Generals office. A mother requested hyperbaric oxygen therapy (HBOT) for her autistic children (and I had to oppose her request because that was my job).
For those of you who do not know what HBOT is (I sure didn’t know what HBOT is prior to this particular case)…
“Hyperbaric Oxygen Therapy (HBOT) is the use of high pressure oxygen as a drug to treat basic pathophysiologic processes and their diseases. HBOT has acute and chronic drug effects. Acutely, HBOT has been proven to be the most powerful inhibitor of reperfusion injury, which is the injury that occurs to tissue deprived of blood supply when blood flow is resumed. This is thought to be one of the primary mechanisms of hyperbaric oxygen therapy effects in acute global ischemia, anoxia, and coma. Chronically, HBOT acts as a signal inducer of DNA to effect trophic (growth) tissue changes.” See http://www.hbot.com/hbot.
I went and saw a hyperbaric oxygen treatment chamber in preparation of my case. It’s pretty intimidating. It is a large chamber made of thick metal. It looks like you could get inside, have it submerged under the ocean, and explore. It appears similar to a submarine. And, interestingly, it is most often used for divers who get the bends.
It is highly controversial as to whether HBOT cures, remedies or ameliorates autistic symptoms. I had two experts testifying that HBOT was experimental, and, therefore, not covered by Medicaid, even with EPSDT. (Remember, back then I was at the AG’s office).
Yet, despite the fact that HBOT was still controversial as to whether it ameliorates the symptoms of autism, the Administrative Law Judge (ALJ) used the EPSDT doctrine to rule that the mother’s children could receive HBOT and Medicaid must pay for the services.
That is the power of EPSDT. HBOT was clearly not covered by Medicaid for the purpose of ameliorating symptoms of autism. But, for the children named in the Petition who were under 21, Medicaid paid nonetheless.
HBOT allows beneficiaries under the age of 21 to receive medically necessary services that would not normally be allowed under the North Carolina Medicaid State Plan.
Importantly, EPSDT provides for private rights of action under 1983. At least all the federal circuit court of appeals have held such.
Oh, and, BTW, NCTracks will soon also be in charge of EPSDT determinations.
Posted in Administrative Law Judge, Clinical Policy 4A, CMS, Denials of Medicaid Services, Dental Medicaid Providers, Division of Medical Assistance, DMA Clinical Policies, EPSDT, Federal Law, Health Care Providers and Services, Lawsuit, Legal Analysis, Medicaid, Medicaid Appeals, Medicaid Recipient Appeals, Medicaid Recipients, Medicaid Recipients Under 21, Medical Necessity, NC, NC DHHS, NCTrack Glitches, NCTracks, North Carolina, Prior Authorization, State Plan
Tags: Administrative Law Judge, ALJ, EPSDT, Federal law, HBOT, Medicaid, Medicaid recipients, Medical Necessity, NCTracks, Non-Covered Medicaid Services, North Carolina, Prior Authorization, Recipients under 21, Social Security Act, State Plan
Attention: All Medicaid Providers Whose Services Require Prior Authorization: A Way to Increase Revenue and Help Medicaid Recipients…Or…Killing Two Birds with One Stone
Attention: All Medicaid Providers Whose Services Require Prior Authorization
A Way to Increase Revenue and Help Medicaid Recipients
Have you heard the cliché: “Killing two birds with one stone….?”
The phrase is thought to have originated in the early 1600s when slingshots were primarily used for bird hunting. (BTW: My husband, who is an expert bird hunter (with guns), I am sure, would be able to hit two birds with one stone…he is that good. In fact, he may have already shot two birds with one bullet). Anyway, Thomas Hobbs, an English political philosopher, is generally given credit for coining the phrase in 1656, although Ovid has a similar expression in Latin over 2000 years prior. Killing two birds with one stone generally means achieving two objectives with one action. (Which, obviously, is a good thing).
For our purposes here, killing two birds with one stone means that by undergoing one action (appealing all Medicaid recipients’ denials, terminations, and reductions for services requiring prior authorization) two positive results are achieved:
1. The Medicaid recipients have their denials, terminations, and reductions appealed (or…people who need services may actually get those necessary services); and
2. Your provider company makes more money.
Not all Medicaid services require prior authorization. But many do. Many prescription drugs require prior approval. Certain services during a pregnancy for a Medicaid pregnant woman require prior authorization. In behavioral health care, almost all services require prior authorizations (although there are some unmanaged visits in outpatient behavioral health (OBT) that do not require prior authorization). Even though other Medicaid services require prior authorization, this blog and NCGS 108D only applies to behavioral health care (because NCGS 108D applies to MCOs and the MCOs only manage behavioral health care). You should appeal all other denied, terminated, or reduced Medicaid services that require prior authorization, but the appeal process in this blog pertains to behavioral health care.
Why care about Medicaid recipient appeals?
It is indisputable that people start companies to make money (except 501(c) companies). You’ve heard all the cliches…”Money makes the world go around…” “The lack of money is the root of all evil…” “Money: power at its most liquid…”
We’ve also heard all the cliches…”Money can’t buy happiness…” “I have no money, no resources, no hope. I am the happiest man alive….” “Money has never made man happy, nor will it, there is nothing in its nature to produce happiness. The more of it one has the more one wants.”
Regardless whether you believe that money is a necessary evil or the key to happiness, it is without question that people need money to get by in life. Therefore, when people create companies, it is, normally, with the intent to make money.
Medicaid providers are no exception.
True, Medicaid reimbursements are crappy. But, despite the crappy/low Medicaid reimbursements, Medicaid providers still hope to make some profit…and do good. (2 birds…1 stone).
We all want to make money and help Medicaid recipients, right? (I know I do).
So with my “handy dandy” tips in this blog, you, too, can kill two birds with stone. You can do both: make more money and help Medicaid recipients.
Wait, I thought providers could not appeal on behalf of our clients? I have heard this incorrect statement over and over from multiple clients. It simply is not true.
NCGS 108D(4)(b) states that “[e]nrollees, or network providers authorized in writing to act on behalf of enrollees, may file requests for grievances and LME/MCO level appeals orally or in writing. However, unless the enrollee or network provider requests an expedited appeal, the oral filing must be followed by a written, signed grievance or appeal.” (emphasis added).
You just need the Medicaid recipient’s consent in writing.
Increased Profit AND Providing Medicaid Services to Recipients: Two Birds…One Stone!
First, how would appealing all terminations, denials and reductions for Medicaid services increase profit for you, as a provider?
For terminations and reductions (not initial authorizations), if you appeal, the Medicaid recipients are required to receive maintenance of service (MOS). This means that, at the very least (even if you lose), if you appeal, you are able to provide services and be reimbursed for services during the appeal process.
For example, you have a developmentally disabled (DD) Medicaid client, who has received 8 hours/day personal care services (PCS) for the last 4 years. You submit your yearly plan of care (POC) requesting 8 hours PCS/day per norm. The managed care organization (MCO) reduces your client’s PCS to 6 hours/day. If you timely appeal the reduction or termination, the MCO will be required to reimburse for 8 hours PCS/day throughout the appeal process.
NCGS 108D-6(c) states: “Continuation of Benefits. – An LME/MCO shall continue the enrollee’s benefits during the pendency of a LME/MCO level appeal to the same extent required under 42 C.F.R. § 438.420.”
42 C.F.R. 438.420 states that:
“Continuation of benefits. The MCO or PIHP must continue the enrollee’s benefits if—
Pay particular attention to subsection (5)…the enrollee must request MOS. Don’t forget to add that little phrase into the form that you have the enrollee sign to consent to appeal.
MOS allows you to be paid during the appeal AND the Medicaid recipient to receive the medically necessary services during the pendency of the appeal.
Two birds…one stone.
For terminations and reductions, there is no need to ask for an expedited hearing (will discuss momentarily), because with MOS, there is no hurry (the recipient is receiving the needed services and you are getting paid).
So, let’s turn to an initial denial for a Medicaid service that requires prior authorization and the appeal process:
If the MCO denies an initial authorization, the Medicaid recipient is not entitled to MOS. However, appealing these initial denials are just as important to (a) the recipients; and (b) your profit as appealing the terminations and denials.
But an appeal can takes months and the recipient (assuming medical necessity truly exists) needs the behavioral health care services in order to not decompensate. So how can the appeal help?
Answer: Request an expedited appeal.
NCGS 108D-7 states:
“When the time limits for completing a standard appeal could seriously jeopardize the enrollee’s life or health or ability to attain, maintain, or regain maximum function, an enrollee, or a network provider authorized in writing to act on behalf of an enrollee, has the right to file a request for an expedited appeal of a managed care action no later than 30 days after the mailing date of the notice of managed care action. For expedited appeal requests made by enrollees, the LME/MCO shall determine if the enrollee qualifies for an expedited appeal. For expedited appeal requests made by network providers on behalf of enrollees, the LME/MCO shall presume an expedited appeal is necessary.”
Important: You still have 30 days to appeal.
Even more important: The MCO is required, by statute, to PRESUME an expedited appeal is necessary.
True the General Assembly really gave mentally ill, developmentally disabled, and substance abuse population the shaft when they passed, and McCrory signed, Senate Bill 553, now Session Law 2013-397, by placing the legal burden of proof on the Medicaid recipient in all circumstances (really??), but the small ray of hope is that, at least as it pertains to expedited appeals, the MCO must presume that an expedited appeal is necessary for the well-being of the recipient.
Going back to expedited appeals, the MCO must make “reasonable efforts” (yes, there is too much wiggle room there) to notify the Medicaid recipient/provider of a denial of an expedited appeal within 2 days. I also believe that is in the best interest of an MCO to authorize expedited appeals, because….could you imagine the implications and legal liability on the MCO if the MCO denies an appeal to be expedited and something horrible happens to the Medicaid recipient as a direct result of the MCO’s refusal to expedite the appeal???? Or, even worse, the recipient harms others as a result of the appeal not being expedited??? WHOOO HOOOO….talk about bad PR!!!
So, two days to determine whether the MCO will accept the request for an expedited appeal. How long for a decision?
According to NCGS 108D-7(d), “[i]f the LME/MCO grants a request for an expedited LME/MCO level appeal, the LME/MCO shall resolve the appeal as expeditiously as the enrollee’s health condition requires, and no later than three working days after receiving the request for an expedited appeal. The LME/MCO shall provide the enrollee and all other affected parties with a written notice of resolution by United States mail within this three-day period.” (emphasis added).
So, basically, if the MCO takes 2 days to decide to accept the expedited appeal, then there is only 1 additional day to determine the results of the appeal. That is fast…I don’t care who you are!!
If the MCO denies the expedited appeal, then the MCO has 45 days to provide a decision.
Very Important: Any adverse decision from an MCO is appealable to the Office of Administrative Hearings (OAH).
Ok, recap: You, as a provider, want to appeal all Medicaid recipient denials, terminations, and reductions for the following two reasons:
1. Increase profitability for your company; and
2. Help the Medicaid recipients by appealing denials, terminations or reductions, and, hopefully, obtaining the medically necessary services for your clients.
2 birds…1 stone.
Posted in Administrative Law Judge, Administrative Remedies, Appeal Deadlines, Behavioral health, Burden of Proof, Denials of Claims, Denials of Medicaid Services, Division of Medical Assistance, Expedited Appeal, Health Care Providers and Services, Lawsuit, Legal Analysis, Legal Remedies for Medicaid Providers, Legislation, Maintenance of Service, MCO, Medicaid, Medicaid Appeals, Medicaid Recipient Appeals, Medicaid Recipients, Medicaid Reimbursements, Medicaid Services, Medical Necessity, Mental Health, Mental Health Problems, Mental Illness, NC, NC DHHS, NCGS 108D, North Carolina, OAH, Office of Administrative Hearings, Plan of Care, Prior Authorization, Reconsideration Reviews
Tags: Administrative Law Judge, Behavioral health, Division of Medical Assistance, DMA, Expedited Appeal, Health care, Health care provider, Maintenance of Service, Managed care, Managed Care Organizations, McCrory, MCO, Medicaid, Medicaid Recipient Appeals, Medicaid Recipient terminations, Medicaid recipients, Medicaid Reimbursments, Medicaid Services, Mental disorder, Mental health, NC DHHS, NC Medicaid, NCGS 108D, North Carolina, Pat McCrory, Prior Authorization, reductions and denials