Blog Archives

Hospital May Lose Its Medicare Contract, Threatens CMS

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 –

  1. The services must be organized under the direction of a qualified member of the medical staff;
  2. The services must be integrated with other departments of the hospital;
  3. 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.

  1. The emergency services must be supervised by a qualified member of the medical staff.
  2. 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…

Another Win! 12 Million Dollar Recoupment Reduced to $896 – But There is a Twist

One of our clients in New Mexico had an alleged Medicaid recoupment of over $12 million!! Actually, $12,015,850.00 – to be exact. (See below). After we presented our evidence and testimony, the Judge found that we owe $896.35. I call that a win!

In this case, the Human Services Department (HSD) in New Mexico had reviewed 150 random claims. Initially, HSD claimed that 41 claims out of 150 were noncompliant.

fullsizerender-jpg

But, prior to the hearing, we saved over $10 million by pointing out HSD’s errors and/or by providing additional documentation.

And then the ALJ’s decision after we presented our evidence and testimony –

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Boom! Drop the mike…

…………………………….not so fast…

……………………………………………..picking the mike back up…

You see, in New Mexico, the administrative law judges (ALJs) cannot render decisions. Look in the above picture. You see where it reads, “Recommendation?” That is because the ALJs in New Mexico can only render recommendations.

Because Medicaid has a “single state agency” rule; i.e., that only one agency may render discretionary decisions regarding Medicaid, and HSD is the single state agency in New Mexico charged with managing Medicaid, only HSD may render a discretionary decision. So in NM, the ALJ makes a recommendation and then the Secretary of HSD has the choice to either accept or reject the decision.

Guess whether HSD accepted or rejected the ALJ’s recommendation?

reject

Now we will have to appeal the Agency’s Decision to overturn the ALJ recommendation.

Here, in NC, we obtained a waiver from the Centers of Medicare and Medicaid Services (CMS) to allow our ALJs to render Decisions. See blog.

I still consider this a win.

Passing the Torch: Wos Resigns!! Brajer Appointed!

Aldona Wos resigned today after two years and seven months as Secretary of NC DHHS.  Wos’ last day will be Aug. 14.

McCrory named Rick Brajer, a former medical technology executive, as the new Secretary of DHHS.

Soon-to-be Sec. Brajer, 54, was the chief executive of ProNerve and LipoScience.  LipoScience was sold to LabCorp in 2014, and ProNerve was sold to Specialty Care in April.

Brajer is not a doctor, as Wos was.  Instead, Brajer touts an MBA from Stanford.

I do not have any information as to why Wos resigned now, especially in light of the recent resignation of the Secretary of Transportation, but will keep you apprised.

More to come….

Supreme Court Upholds Obamacare! Three Judges Dissent, Calling the Decision Absurd!

Mark this day, June 25,2015 (also my daughter’s 10th birthday) as also the birth of a new state.  Our country, according to the Supreme Court’s decision in King v. Burwell, now consists of 51 states.  The Health and Human Services (HHS) is now our 51st state.

Today the Supreme Court decided the King v. Burwell case.

If you recall, this case was to determine whether the plain language of the Affordable Care Act (ACA) should be upheld.  According to the ACA, people were to receive tax subsidies or “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges, but only those enrolled in through an Exchange established by the State under [§18031]. §36B(c)(2)(A).

See blog.

“Specifically, the question presented is whether the Act’s tax credits are available in States that have a Federal Exchange.”

“At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so.”

In Justice Scalia’s words, “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

However, the majority disagrees.

Apparently, HHS is now our 51st state.

The upshot of the Decision is that the majority found that, despite our country’s deep-rooted, case law precedent that when a statute is unambiguous that the plain meaning of the statute prevails.  Despite hundreds of years of the Supreme Court upholding statutes’ clear meanings, the Supreme Court, in this case, decided that “[i]n extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”

Therefore, when the ACA became law, and the word “state” was used, surely, Congress meant “state and/or federal government.”  Or, on the other hand, let’s just call HHS a state for the purpose of the ACA.

In Justices Scalia, Thomas, and Alito’s opinions, the decision is absurd.  In the dissent they write, “The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

Sebelius Out, Burwell In: A New Secretary to Lead the Department of Health and Human Services (Federal)

The following article is breaking news on the Health Care Policy Report:

The Senate June 5 voted 78-17 to confirm Sylvia Mathews Burwell as secretary of the Department of Health and Human Services.

Republicans who voted against the nomination included Senate Minority Leader Mitch McConnell (R-Ky.), who in an earlier floor statement compared voting for the nomination to appointing a “new captain for the Titanic.” Other Republicans who voted against the nomination included Roy Blunt (Mo.), Ted Cruz (Texas), John Cornyn (Texas), Pat Roberts (Kan.) and John Thune (S.D.).

In urging his colleagues to vote in favor of the nomination, Finance Committee Chairman Ron Wyden (D-Ore.) said that Burwell enjoys bipartisan support and that Republicans and Democrats will need to work together to ensure the future of Medicare.

Burwell, director of the Office of Management and Budget, will replace Kathleen Sebelius, who announced her resignation in April but agreed to stay on until a successor is confirmed.
Burwell has sailed through Senate committee hearings and a committee vote, and easily passed a procedural vote June 4 when 14 Republicans voted with Democrats, 67-28, to end debate on the nomination.

Knock, Knock. Who’s There? Burwell. Burwell Who?

As I am sure most of you have heard, April 10, 2014, Kathleen Sebelius, former Secretary to Health and Human Services (HHS), resigned. Some journalists wrote that her resignation came 6 months after “the disastrous rollout of Obamacare,” obviously alluding that she was fleeing from her position as Secretary. But is that why Sebelius left? And who is Sylvia Mathews Burwell?

It is no secret that when Healthcare.gov went live on October 1, 2013, Sebelius called the roll-out a “debacle.” But recent figures show enrollment in Obamacare exchanges has surpassed 7.5 million.

Sunday Sebelius stated that “Clearly, the estimate that it was ready to go Oct. 1 was just flat-out wrong.”

According to Politico Pro, “a White House official said Sebelius told Obama in March that she planned to resign. She felt that the Affordable Care Act trajectory was back on track, and believed “that once open enrollment ended it would be the right time to transition the Department to new leadership.””

It seems that Sebelius did not want to resign during the height of the debacle. She waited until things smoothed out a bit before walking away.

Obama has chosen Sylvia Mathews Burwell, his budget Director, to replace Sebelius.

Who is Burwell?

Burwell

Burwell served as deputy White House chief of staff during the Clinton administration. She also served at the Office of Management and Budget (OMB) twice, once as director. She has also worked at the Bill and Melinda Gates Foundation. (Speaking of Bill and Melinda Gates Foundation and people with obscene amounts of money, why don’t people ever set up charities to pay for Medicaid recipients to receive private insurance with the co-pays all covered? If I ever get an obscene amount of money I would set up a Medicaid Foundation. The Emanuel Medicaid Foundation. Look for that in the VERY FAR future, folks.).

Going back to Burwell…she received her bachelor’s degree in government from Harvard University. She also received her bachelor’s degree in philosophy, politics and economics from Oxford University. Seriously? Is that a quadruple major from 2 colleges?

Her grandparents were Greek immigrants, and she grew up in West Virginia.

There isn’t much more information on Burwell. She is relatively young (48) and holds a relatively small resume considering the enormous undertaking she is about to assume.

Obama nominated Burwell one day after Sebelius resigned. There is no indication of whether Burwell was Obama’s first choice. It took him one day to replace Sebelius, which is pretty amazing.  Remember, we still haven’t replaced former Medicaid Director, Carol Steckel. Sandy Terrell is still the “Acting Director.” Whew, it has got to be difficult to fill these intimidating positions.

I can only imagine how many people would NOT want to be Secretary of HHS. Talk about a big job! Talk about high stress!

Burwell has not been confirmed yet. Despite Burwell not being a common household name when Obama nominated her, it is without question that Burwell has now stepped into the limelight. If confirmed, Burwell will be one of the most powerful people in health care…and one of the most scrutinized.

Good luck, Burwell!! Make Burwell a household name…for good reasons. And when someone says, “Burwell who?”

Someone else will respond, “That is the Secretary for HHS.”

Can it be?! Is it true?! NC General Assembly Passing Law to Supervise the MCOs? And Giving Counties a Choice of MCOs?

Am I living in some alternate universe?

Surely, I have misread or misunderstood Session Law 2013-85!

Surprise

I cannot believe my eyes.  Even more so, I cannot believe the General Assembly could possibly make a good law regarding the Managed Care Organizations (MCOs). 

To all lawmakers, I am truly sorry for my obvious and apparent cynicism.  But forgive me, the potential NCGS 108D statutes had not made me hopeful for the future of health care providers.

Session Law 2013-85 (SL 2013-85) was signed by Gov. McCrory  on June 12, 2013 (last Wednesday).  SL 2013-85 is entitled, “An Act to Ensure Effective Statewide Operation of the 1915 (b)/(c) Medicaid Waiver.”  Its status is “completed legislative action.”

SL 2013-85 requires:

1.  The Secretary to certify whether the MCOs are in compliance with certain requirements and must be made every 6 months.

Can we say…is it possible…dare we say….DMA must supervise the MCOs?

According to SL 2013-85, the Secretary’s certification evaluations will be every 6 months beginning August 1, 2013.  Not sure whether that means the first evaluation will be on August 1, 2013, or whether the 6 month period begins to run August 1, 2013, meaning the first evaluation would be January 1, 2013.

2. The Secretary’s evaluation will be based on an internal and external assessment made by an independent external review agency.

Hmmmm….this is starting to sound like an audit…an audit on the MCOs!!!! Can we hire CCME??? (they never find anything good).

So what requirements will the Secretary be determining are or are not in compliance?

I.  MCO has made adequate provision against the risk of insolvency. 

II.  The MCO is making timely provider payments. (Of course, the implementation of this clause, I wager, will be to pay only providers the MCOs determine worthy).

III. The MCO is exchanging billing, payment, and transaction info to the Department.

Ok, so the Secretary will be, or, at least, making an effort to ensure compliance of the MCOs.  That’s better than no supervision, right? And the Session Law shows the intent of lawmakers to begin supervision of MCOs.

Going to county choice of MCOs…

According to SL 2013-85, a county that wishes to disengage with a particular MCO may realign with another MCO with permission by the Secretary.

Counties get to choose MCOs?????????

Right now, the MCOs are jurisdictional and regional.  Here is a map of the MCOs currently.

MCO_map_small

As you can see, across North Carolina each MCO is basically assigned a catchment area.  So, as a health care provider, if you provide mental health services to Medicaid recipients in Pitt County, you must contract with East Carolina Behavioral Health (ECBH) because Pitt county is in the yellow ECBH area.

BUT…..In a system in which counties could choose which MCOs with whom to contract, I wager, that system would create new MCOs….ones that were more “county/health care provider friendly” (i.e., authorizes medically necessary services, does not terminate provider Medicaid contracts without merit, etc.).  Let me explain:

For example:

(People, this is a hypothetical) ECBH, in Pitt County, determines, for whatever reason, that personal care service hours (PCS) cannot exceed 40 hours/week without exceptions (even if a Medicaid recipient requires 24-hour care).  In my hypothetical, in Pitt county, many, many Medicaid recipients get denials from ECBH to receive PCS in excess of 40 hours.  All these recipients complain to the providers.  The providers are losing money because services are not getting authorized.  The providers feel as if their clients are getting a disservice because a medically necessary service is not being provided to the Medicaid recipients.  The providers complain to the county commissioner and other local politicians.  Eventually, Pitt county gets sick of it and determines that Pitt county no longer wants to work with ECBH.  Pitt County requests and receives authorization from Secretary Aldona Wos to realign with MCO Smokey Mountain Center (SMC) (in the west). Unlike, ECBH, SMC is absolutely willing to authorize PCS service in excess of 40 hours/week upon a showing of medical necessity.

So what happens?

ECBH loses a county.  I would guess that if an MCO loses a county that the MCO would receive less Medicaid funding, which would mean potential less profit for the MCO.

SMC gains a county.  I would guess that SMC would receive more Medicaid money with an additional county.

A-HA!

The MCOs, all of a sudden, have a monetary incentive to make the counties happy in their own catchment areas.  Because if too many providers complain and the county switches MCOs, then the MCOs’ potential profit decreases.

Suddenly, customer service becomes, if not important, a factor in the MCOs’ minds. (Minds of the board members).

Suddenly MCOs do not have a monopoly on its catchment area.  If choice of MCOs exist for the counties, then counties have more persuasion with the MCOs.

Why is this so important?

Let me give a very simplistic hypothetical:

I live in Wake County.  Because I live in Wake county and, in my hypothetical, Wake county has a contract with Harris Teeter as the Wake county grocery store, and only Harris Teeter.  In my hypothetical, I am only allowed to get my food at Harris Teeter.  HT knows that it has Wake county’s business no matter what. To increase profits, HT begins to put 4 lbs of potatoes in bags, but sells the bags for 5 lb. prices.  Or, instead of throwing away rotten produce, keeping it for sale and requiring the customers to buy the rotten produce first, in order to get the fresh produce.  The customers complain, but HT merely laughs, saying, “We don’t care, Wake county, you can’t choose to go to Kroger anyway.” 

BUT …What if?   What if….Wake county DOES have the authority to determine that Wake county no longer wants to buy from HT, and, instead, can make a contract with Kroger.  Kroger has the incentive to keep prices fair and produce fresh, because Kroger knows that if Kroger does the same practices that HT did, that Wake county will go to Piggly Wiggly.  (Don’t you just love a Piggly Wiggly?)

This is the heart of an argument for competition in the market…capitalism, if you will.

The thought is, generally, that if the MCOs have to compete for business, the MCOs have incentive to provide good services to keep the client-county.

“Capitalism is like a child: if you want the child to grow up free and productive, somebody’s got to look over the shoulder of that child.”  Tavis Smiley.

If, by chance, I have misread SL 2013-85 or, by chance, I am in some alternate universe, and SL 2013-85 is not real, then I just had a great idea. I’m kidding.  I gives kudos to the General Assembly on this one. 

Let’s just hope that it is implemented fairly.